[2017] KEHC 2509 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI.

CORAM: R. MWONGO, PJ.

ELECTION PETITION NUMBER 5 OF 2017

IN THE MATTER OF:

ARTICLES 2, 10, 38(2), 50(1), 88(4) OF THE CONSTITUTION OF KENYA.

AND

IN THE MATTER OF: INDEPENDENT ELECTORAL & BOUNDARIES COMMISSIONACT NO.9 OF 2011

IN THE MATER OF: THE ELECTIONS ACT NO.24 OF 2011

IN THE MATER OF: THE ELECTIONS (PARLIAMENTARY AND COUNTY) PETITION RULES, 2017

IN THE MATER OF: THE ELECTION FOR THE MEMBER OF NATIONAL

ASSEMBLY FOR RUARAKA CONSTITUENCY (NO.281)

IN THE MATTER OF: THE ELECTIONS (GENERAL)REGULATIONS

LEGAL NOTICE NUMBER72 OF 2017.

IN THE MATTER OF: INTERNATIOANAL CONVENTIONS AND/OR GOOD PRACTICE.

- BETWEEN -

ELIZABETH ONGORO AMOLLO................................PETITIONER

-VERSUS-

FRANCIS KAJWANG TOM JOSEPH............1ST RESPONDENT

KAREN WACHERA MWANGI........................2ND RESPONDENT

INDEPENDENT ELECTORAL

& BOUNDARIES COMMISSION....................3RD RESPONDENT

RULING NO.6

(On Objection as to Electronic Evidence)

1. During the substantive hearing of this petition yesterday afternoon, Mr Ongoya, counsel for the 1st Respondent, objected to the production of a printout of a photograph of an alleged computer screenshot of the 2nd Respondent’s alleged computer. PW 2 Mr Silas Rabah, the Petitioner’s Chief Agent, alleged that he used his phone to take the screenshots exhibited as “SR 6” annexed to his affidavit of 5th September, 2017. The documents are attached at page 77-78 of the Petitioner’s Bundle.

2. After hearing parties on the objection, the court directed that no further examination of PW2 be done with reference to the exhibited screenshot until this ruling is delivered; but that other examination of the witness shall proceed.

3. The impugned screenshot allegedly shows the results displayedon the laptop computer of the 3rd Respondent, shown to him by Karen Wachera Mwangi,the 2nd Respondent, at the Stima Club Tallying Centre. He testified that the results indicated on the computer screen were as follows:

“Elizabeth Ongoro - 31,512 votes

Francis Kajwang’ Tom Joseph - 36,892 votes

Mr Kinyua Gathecha - 68,657 votes”

4. PW 2 alleges that when the 2nd Respondent declared the 1st Respondent the winner on the night of 9th August, 2017 at 7. 45 pm, those results were showing on the screen. He further alleges that Karen Wacera told him to go ahead and take a picture of the results displayed on the computer screen. He stated that he did take pictures of the computer screen showing the results, which pictures are annexed to his affidavit at page 77 of the Petitioner’s Bundle.

5. At this point, Mr Ongoya objected to further evidence on the screen shot. His argument is that the alleged photo of the computer screen is a printout of electronic evidence for which no certificate has been produced as required under the evidence Act. He asserts that the screenshot is photographed by an undisclosed device; and is printed by yet another undisclosed device. He further argued that at the pre-trial conference it had been agreed that for any disputed documents, the Evidence Act would apply. In this case sections 76 and 106 of the Evidence Act must apply. In the absence of a certificate, he prays that the screenshot be deemed inadmissible and be struck out.

6. Mr Muyundo for the 2nd and 3rd Respondents associated himself with the 1st Respondents submissions, also objecting to the production of the screenshot for lack of service of a certificate under the Evidence Act. He argued that the Petitioner’s counsel had carefully concealed information about filing the certificate, if any, and had thenprepared himself to rebut an objection to the production of the screenshot. This, in his view, amounted to lack of integrity on the part of Petitioner’s counsel, conduct which the court should not allow.

7. In response, Mr Mandukufor the Petitioner, submitted that at the Pre-trial conference it was agreed that witness statements be adopted; that later in court the petitioner’s counsel did raise the issue of computer printouts and clips, in respect of which they would file an affidavit, and they accordingly filed the relevant certificate on 30th October, 2017 and served all parties. The said certificate gave all the details of the devices used in terms of section 78 and 106 of the Evidence Act.

8. Mr Manduku also referred to the cases of Mabel Muruli v Wycliffe Oparanyaand Noni GathoniNjenga v Catherine Masitsawhose cumulative holding is that the court may excuse the strict rules of production of electronic evidence so as to cure an omission, particularly where the objection is purely on a technicality.

9. Finally, Mr Manduku urged that no party would be prejudiced as they had seen the screenshot in the Petitioner’s document since service of the petition; that the respondents had cross-examined PW 1 on it at length, and therefore there was no ambush or surprise.

10. Upon request of the court for information of service of any certificate in respect of the screenshot, Mr Ongoro asserted that he had personally served the same on the parties.

11. I have carefully considered the objection and the parties’ arguments on it.I have also perused the proceedings to confirm what this Court had directed regarding the screenshot.

12. At the pre-trial conference, the court ordered at paragraph 8 of the Directionsas follows regarding documentary evidence:

“8. Witnesses

a.It was agreed that at the hearing, witnesses evidence in chief shall be by adoption of witness statements and thereafter Cross Examination….

c.It was agreed that in respect of disputed documents, witnesses shall be required to formally produce an prove them in the usual way pursuant to the Evidence Act“(emphasis supplied)

13. Clearly therefore, the Petitioner was bound to produce any disputed documents by application of the Evidence Act.

14. At the pre-hearing mention on 30th October, 2017, discussion around the screen-shot was as follows:

“Maduku:Huh… what I want to raise is the issue of production of documents and electronic evidence, where we are aware that it is the requirement of the law that a basis has to be …to be laid and section 78 A 106 A-I under certificate is required under section 106 of the Evidence Act. So I wanted to request the court to give us guidance, how how we are going to deal with this aspect especially in view of the fact that the statements have already been admitted and what we have decided to do is to prepare this certificates in form of affidavits,

Principal Judge:Yes.

Maduku:And if it’s agreeable then we can be able to introduce them. The certificates thatare required for purpose of production of the video clips

Principal Judge:Mmh”

Maduku:and the photographs that have been taken by the various people who have taken. We also have one clip that is supposed to be taken by…it was produced by one of themedia houses…”(emphasis supplied).

15. Later in the proceedings, the parties mutually agreed to the introduction of the KTN News clips but nothing new was agreed as to the screenshot. Nor is there any indication in the transcript regarding the filing or service to the parties in court of a certificate in respect of the screenshot. What was clearly served by the petitioner’s counsel is a certificate in respect of the KTN News clip, and the court copy of the certificate is duly acknowledged by Mrs Kayugira and Mr Muyundo, for the respective respondents.

16. I also note that as pointed out by the petitioner’s counsel, during the evidence in chief and cross examination of PW1, the petitioner and the respondents dwelled at fair length on the screenshot, the subject of this objection. Some of the evidence in chief is as follows:

“Elizabeth: That by the time he was being declared and I want to here rely on my …on the evidence also of my Chief Agent, one mr. Raba,

Apondi: What did he capture?

Elizabeth: he even has a screen shot which he was allowed, they were all allowed all the chief agents were allowed to take screen shots. Interestingly, even by the time the 1st respondent was being announced as winner, interestingly,

Apondi: Mmh

Elizabeth: Neither me nor the 1st respondent was leading, it was one Mr….

Apondi: Who was ….who was actually leading?

Elizabeth: It wasmmmh…mmmh huh…what is his name.

Apondi: You know a candidate by the name Gatheca?

Elizabeth: The jubilee, the Jubilee …the Jubilee candidate.

Apondi: Do you know Kinyua Dominic Gatheca?

Elizabeth: Yes, the screen shots that I was shown, and I don’t know by what means because I do not open servers, I do not have access of relaying or tallying of a…when that was shown to me I was so shocked. In fact my first reaction was that you mean Gatheca has won this election? Because that is what was on the screen shot.At the point that the 1st respondent was actually being declared.I mean, I am actually, and this is why I say, what happened on the 8th in Ruaraka constituency, is baffling, is not even a sham election, it is something that really may be will be ….you know a matter for investigation; no…somebody steals…for example because it completely baffling, and all these things am talking about are not in my custody. This were IEBC, that was the screen operated by IEBC, those were the results they were relaying and one …huh…Mr.Kinyua is shown as leading all of us, and at the same time we are having Mmh….Mmh…..Mmh honourable TJ Kajwang being announced, at the same time results from over 80 polling stations are still streaming in. Which they actually,

Apondi: So your evidence …you evidence is that by 7:45,

Elizabeth: Yes.

Apondi: How many polling stations had not been accounted for?

Elizabeth: I cannot be specific but about 80 polling stations.

Apondi: There results had not been streamed in?

Elizabeth: Yes. Yes.

Apondi: Okay. Thank you. Now apart from those results, which other irregularity would want to bring to the attention of this court.

Elizabeth: Yes.

Apondi: Or illegality.

Elizabeth: The other illegality….

Principal Judge: Counsel, just a question,

Elizabeth: Yes.

Principal Judge: Will someone be coming to talk about the screen shot?

Elizabeth: Yes.

Apondi: Yea. In fact he’s one of the key witnesses. He’s the chief agent.

Principal Judge: Okay.”

17. And in cross-examination of PW 1 by Mr Ongoyasome of the evidence was as follows ( not transcribed):

“Referring to page 77 Petitioners Bundle:; this is the screenshot showing three Jubilee candidate was leading in the vote tally….it is not part of my affidavit. I will not answer why the (Jubiulwee) candidate has not filed a petition…. The form is credible…the screenshot is a true reflection of what was shown on screen.

….Shown Pages 73 to122 of Petitioner’s bundle..these were gven to me by my Chief Agent who was given by the Returning Officer.”

Again, PW1was re-examined on the said screenshot.

18. Given the fact that counsel have already engaged with this evidence and commenced interrogating it, there are no surprises and I do not think that any prejudice will be suffered by any party.

19. I have also seen in the court file, a “Certificate of Computer Printout”pursuant to Section 65(8) of the Evidence Act, made by Silas Rabah on 30th October, 2017. It was filed on the same date, and the court filing receipt No 8703533 confirms the filing.The certificate clearly identifies the following: the make of the mobile phone used for taking the photograph of the computer screen output or screenshot; the make and serial number of the computer from which the photograph was taken; the date when the photographs were downloaded and printed out; the make and serial number of the printer through which the printing was done, and so on. The Evidence ActSection 65(8) provides as follows:

“8. In any proceedings under this Act where it is desired to give a computer print-out or statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say—

(a) identifying a document containing a print-out or statement and describing the manner in which it was produced;

(b)giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer;

(c) dealing with any of the matters to which conditions mentioned in subsection (6) relate, which is certified by a person holding a responsible position in relation to the operation of the relevant device or the management of the activities to which the document relates inthe ordinary course of business shall be admissible in evidence”.

20. I have not seen any evidence pointing to the fact that the above certificate, although filed on 30th October, 2017, was in fact served on the other parties, despite Mr Ongoro’s assertion that he served the same. There is no affidavit of service, nor any formal record, either on the fileor in the transcript of the proceedings, showing that the respondents were served. Accordingly, I am unable to find that there was service. On that ground, I agree with the respondents that the objection was properly raised.

21. Is the failure to serve fatal in the sense that the document sought to be relied upon must be found inadmissible? I think not. In Noni GathoniNjenga&Another V Catherine Masitsa& Another [2014] eKLR,Ogola J, exercised his discretion to allow a party who had produced a DVD which was not at all accompanied by a certificate under section 106B of the Evidence Act, to so produce such certificate. He found that the DVD would be inadmissible as evidence without the certificate and stated:

“12. In light of the above analysis and having already stated above that the DVDs attached by the Plaintiffs are not accompanied by a Certificate as required under the evidence Act, it therefore follows that the said DVDs are inadmissible as evidence.

13. However, in the interest of justice, it is my view that the Plaintiffs are at liberty to produce such certificate for the admissibility of the said evidence. When that is done, the Court will be able to examine the evidence and evaluate the probative value of the said DVDs as well as the authenticity. The Respondent has alleged that the DVDs were obtained illegally, however that cannot be ascertained at this stage until the Certificate is filed and the Court is able to determine the source of the DVDs.”

22. In that case it is clear that the learned Judge was satisfied with post factocompliance with the relevant provisions of the Evidence Act as to certification. In the present case, a certificatehas, in fact, been produced and filed, but has not been served on the opponents.

23. In Mable Muruli v Wycliffe AmbetsaOparanya& 3 Others [2013] eKLR the court was faced with a situation wherecompact discs (CDs) had not been produced in accordance with the law. Chitembwe J stated:

“From the submissions by the applicants’ counsel the main reason for striking out the contentious paragraphs is that the CDs were not produced in accordance with the law. I have seen the certificate by one BefreyAmahwa indicating that he processed the CDs. The said BefreyAmahwa seems not to have filed any affidavit. Section 80(1)(b) empowers the court to summon a witness who appears to the court to have been concerned in the election or in the circumstances of alleged vacancy and I do find that if need be the court will be able to summon that person to explain how he processed the CDs. Counsel for the applicants submitted that Articles 47, 50 and 105 of the Constitution requires the court to administer justice fairly and there should be a balance between the parties. Thus in my view such balance will only be attained if each party shall be allowed to tell his or her story supported by their respective witnesses. Under Article 159 2(a) it is stated that justice shall be done to all irrespective of status. Further justice shall be administered without undue regard to procedural technicalities. I do find that the CDs can be produced as evidence. The court will evaluate the probative value of that evidence or even the authenticity of the CDs.

The essence of justice is that a party should be able to approach the court and present his or her case. Such presentation should be supported by his or her oral evidence, electronic and documentary evidence. ….This is in line with the provisions of Article 50 which gives the right to every person to have any dispute resolved by the application of the law in a fair and public hearing before a court. Shutting out the electronic evidence will make the petitioner go back home while nursing the notion that the court did not take her evidence. In Presidential Election Petition No. 5 of 2013 Nairobi the court was able to view electronic evidence and such issues as the authenticity of the evidence did not arise.” (emphasis supplied)

24. In William OdhiamboOduol v Independent Electoral & Boundaries Commission & 2 Others [2013] eKLR,objection was taken by the respondents when the plaintiff’s witness:

“….produceda CD as part of his evidence. He was the petitioner's chief campaign manager for Rarieda Constituency and testified that on 4/3/13 his agent for Ujwan'ga polling station called to say that he had caught an IEBC clerk who was just about to stuff marked ballot papers into ballot boxes. PW7 rushed to the scene and, in the presence of the IEBC coordinator, OCS of the area and the clerk, used his Nokia E7 cellphone to take video of the ballot papers which he found in the hands of the agent. After the elections he went to Nairobi and developed the video into CD. The CD was part of the exhibits he annexed to the affidavit he swore in support of the petition. He swore two affidavits on 8/4/13. One was witness affidavit and the other was “Affidavit Verifying Video Recording.”

Muchelule J, declined to admit the CD on the basis that whilst the plaintiff’s witness

“…may be the owner of the phone handset, [he] said nothing about its working condition. There was no evidence regarding the computer used, its condition or reliability. There was no evidence to show that PW7 was the one who owned, operated and managed the computer. The particulars of the computer were not given. My considered view is that the verifying affidavit is not certificate in terms of subsection (4), and neither has PW7 satisfied the conditions of subsection (2).”

25. In my opinion, what is of critical importance is that digital or electronic evidence or document(s) must be verified as to their source and mode of storage, as to the specific manner of retrieval, as to the identity of the equipment by which the retrieval was accomplished, and as to the control processes and nature of activities of the person or persons who conducted each of the operations resulting in the output sought to be admitted. I believe that the certificate issued by PW 2,in most part, satisfies the conditions under section 65(8) of the Evidence Act. That relates to a computer printout or statement and invokes compliance with the detailed provisions of section 68(6) of the Act.

26. I also consider that the provisions of section 65(8) read together with section 65(6) which is thereby invoked, closely resemble the provisions of section 106 B of the Evidence Act, and hence the parameters for the information necessary in the certificate for verification as to admissibility of evidence, there is a critical gap I see in the certificate of PW2. What PW 2 has presented, according to the evidence he gave, is a photograph of a display of information of results produced by a computer belonging to, or in the control of the 2nd or 3rd respondent. He said he went to the laptop and looked at the results on display; then the Returning Officer told him he could go ahead and take a photograph of the displayed results, which he did.

27. In other words, according to PW 2, what he captured was a digital output by the said computer of digital information displayed on a screen; which he photographed digitally using his mobile phone via a digital image that he downloaded onto a computer. He then printed it out. It is the said printout that he attached to his affidavit.

28. Traditional photography and digital photography differ, as explained by Zachariah B. Parryin an article‘Digital Manipulation and Photographic Evidence: Defrauding The Courts One Thousand Words at a Time’ published intheJournal of Law, Technology & Policy [Vol. 2009] 175:

“Traditional photography is an analog science. Light enters through a camera‘s lens and the image the camera views is faithfully recorded onto a negative. This negative is then printed into a recognizable image.

…

Digital photography is the new norm for image capture. Digital cameras, in contrast to their analog complements, do not store information in a continuous medium. Instead, information is recorded in discrete bits of information called binary code, which is a string of ones and zeroes that makes up the storage language of hard drives, compact discs, computers, and all other digital devices. By using a series of numbers, instead of the continuous crests and troughs characteristic of analog information, digital image manipulation is much easier, cheaper, and infinitely more difficult to detect than an analog alteration.”

29. Accordingly, whilst photographic evidence is admissible pursuant to Section 78 of the Evidence Act, there is a compelling basis to demand that, unlike traditional photographs, digital photographs must be carefully verified as electronic evidenceunder Section 78A of the Evidence Actgiven the distinction expressed by Zechariah, above. To my mind, there are three aspects with regard to PW2s screenshot that must be verified. First is the information of the computer output displayed on the computer screen; second, there is the digital photograph capturing the computer display; and third, there is the medium of storage and transmittal from the digital camera to the receiving computer that then sent the signal to printing medium which printed out the picture.

30. The only issue which now disturbs me, therefore,is whether the certificate provided by PW2 under section 65(8)satisfies the conditions for admission as to electronic evidence under section 106BEvidence Act.The certificate of PW2 is entitled “Certificate of Computer Print Out”. A computer printout is defined in section 65 (5) (c)Evidence Act as follows:

“a statement contained in a document and included in printed material produced by a computer (hereinafter referred to as a computer print-out)”(emphasis supplied).

31. In County Assembly of Kisumu & 2 Others v Kisumu County Assembly Service Board & 6 Others Civil Appeal Nos 17 and 18 of 2015 [2015] eKLR, the Court of Appeal, Kisumu in an appeal from an industrial court petition, considered the question of admissibility of evidence in a DVD by a photojournalist. The court stated in respect of the application of section 106B(1) of the Evidence Actas follows:

“65. Section 106Bof the Evidence Act states that electronic evidence of a computer recording or output is admissible in evidence as an original document “if the conditions mentioned in this section are satisfied in relation to the information and computer.”

66. In our view, this is a mandatory requirement which was enacted for good reason. The court should not admit into evidence or rely on manipulated (and we all know this is possible) electronic evidence or record hence the stringent conditions in sub-section 106B(2) of that Act to vouchsafe the authenticity and integrity of the electronic record sought to be produced.”

The Court of Appeal observed that there was no format of the certification required, stating:

‘the Evidence Act does not provide the format the certificate required under sub-section 106B(2) thereof should take. The certificate can therefore take any form including averments in the affidavit of the recorder.’

32. As earlier noted, what is produced by PW 2 is not merely a computer printout, without more, as defined in section 65(5)(c) of the Act. Instead, it is a computer printout of a digital photo image obtained from a computer screen. To that extent, it is clear that the certificate under section 65(8) does not entirely comply with sections 78and106 Evidence Act on digital or electronic evidence.

33. Although the parties did not argue this point, it isimportant to refer to the provisions of sections 106B(1), (2) and (3) as well as section 106(I) of the Evidence Act. The former sections reinforce the admissibility of electronic records including computer print-outs, and provide for a straightforward way of automatically authenticating them if certain conditions enumerated in section 106B(2) are met by producing a certificate of authenticity. That certificate needed must satisfy three conditions:

a. It must identify the electronic records and production process;

b. It must show the particulars of the producing device; and

c. It must be signed by the responsible person.

34. In the present certificate of PW2 the particulars of the producing device – that is the computer which produced or displayed the results – have not been provided. In any event, for a computer output to be considered a document for admissibility under section 106B(1), it must satisfy the conditions in section 106B(2) namely that:

a. The output must have been produced during regular use

b. It must be of a type expected in ordinary use;

c. The computer generating the output must be operating properly or it must be shown that the accuracy of the computer is not otherwise affected; and

d. Where multiple computers are involved, those operating in succession are considered as one;

35. In other words, undersection 106B (2) (a) of the Evidence Act, there is a requirement to state in the certificate in respect of a computer output, that:

“”(a) the computer output containing the information was produced by the computerduring the period over which the computer was used to store or process information for any activities regularly carried out over that period by a person having lawful control over the use of the computer

b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its content; and the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.”

36. The foregoing notwithstanding, and no arguments have been made on the salient point discussed herein, and further as I am satisfied that no prejudice will be occasioned to the respondents, the court is prepared to exercise its discretion:

a. To allow and direct PW 2, as it hereby does, to file a rectified certificatein terms of section 78 Aand 106B of the Evidence Act;and

b. The rectified certificate shall be filed and served forthwith and in any event no later than 9. 00am on Monday 6th November, 2017. In default thereof, and subjectto corroboration, the evidence adduced based on the screenshot will be treated as relevant but with lesser weight to be attached thereto.

37. Accordingly, I dismiss the objection, but having noted that it was properly taken by the 1st respondent in absence of service, the costs thereof shall be borne by the respondent to the application/objection.

38. Orders accordingly.

Dated and Delivered at Nairobi this 3rd Day of November , 2017

___________________

RICHARD MWONGO

PRINCIPAL JUDGE

Delivered in the presence of:

1. ……….……………for the Petitioner

2. …………………….. ……for the 1stRespondent

3. …………………………for the 2nd& 3rd Respondent

Court Clerk……………………