[2015] KEHC 7168 (KLR)
The court held that, under Section 106I of the Evidence Act, there is a statutory presumption that an electronic message forwarded by the originator to the addressee corresponds with the original message as entered into the originator's computer. The Defendant did not provide evidence to rebut this presumption or to...
Source-derived case information.
- Citation
- [2015] KEHC 7168 (KLR)
- Parties
- Plaintiff: Harleys Limited; Defendant: Metro Pharmaceuticals Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2021 of 2001
- Procedural Posture
- Civil Case / Ruling on Evidentiary Objection During Trial
- Outcome
- objection dismissed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Admissibility of Evidence, Electronic Documents, Authentication of Emails
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Harleys Limited
Plaintiff
Metro Pharmaceuticals Limited
Defendant
Procedural Posture
Civil Case / Ruling on Evidentiary Objection During Trial
Legal Issues
- 1 Whether email print outs containing alleged defamatory words are admissible in evidence under the Evidence Act.
- 2 Whether a certificate of authentication is required for the admissibility of electronic documents under Section 106B of the Evidence Act.
- 3 Whether the presumption under Section 106I of the Evidence Act applies to forwarded emails.
Ratio Decidendi
The court held that, under Section 106I of the Evidence Act, there is a statutory presumption that an electronic message forwarded by the originator to the addressee corresponds with the original message as entered into the originator's computer. The Defendant did not provide evidence to rebut this presumption or to show that the Plaintiff's email account was tampered with. Furthermore, Section 106B of the Evidence Act recognizes print outs of electronic documents as admissible documents, provided a certificate of authentication is produced by the person responsible for the operation of the computer from which the email originated. Since the Defendant failed to demonstrate any tampering...
Court Disposition
objection dismissed
Orders
- The objection to the admissibility of the email print outs is dismissed.
- Counsel to take hearing dates in the Registry on a priority basis to complete the trial.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL CASE NO. 2021 OF 2001
HARLEYS LIMITED…………..........................................PLAINTIFF
V E R S U S
METRO PHARMACEUTICALS LIMITED...................DEFENDANT
RULING
Hearing of this defamation suit was underway when in the course of the Plaintiff’s witnesses adducing their evidence in chief, counsel for the Defendant raised an objection with regard to admissibility in evidence of email correspondence containing the defamatory words. He sought authentication of the emails as per the provisions of Section 65 of the Evidence Act (Cap 80 Laws of Kenya).
Counsel for the Defendant urged the court to consider whether the email print outs are admissible in view of Section 65 and 106B of the Evidence Act (theAct) that requires a certificate to be produced to show, inter alia, how the documents were produced and what devices were used.
On her part, counsel for the Plaintiff submitted that under Section 106B of the Evidence Act, the email print outs were admissible as long as there is produced a certificate of authentication by the person responsible for the operation of ‘the Computer’. She insists that the computer in this case was that in which the email originated and not the one where the email was forwarded.
The court has considered the objection raised and the rival arguments by counsel for the parties.
With regard to admissibility of print outs of forwarded email communication, the court should be guided by Section 106I of the Evidence Act which provides as follows:
“A court may presume that an electronic message forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission, but the court shall not make any presumption as to the person by whom such a message was sent”
The presumption allowed under Section 106I of the Evidence Act is therefore to recognize origination of an email message from the person sending, and receipt of that email message in an untampered form by the addressee of the message. In other words, the law deems the email message as having left the address of the originator and having been received at the address of the recipient in the same form and content. The Defendant has not brought evidence to rebut that presumption. It has not shown that the document which the Plaintiff seeks admission of is different from the document originally created.
Thus with that presumption in mind, it is the person in charge of the Plaintiff’s computers who should produce the certificate of authentication as it will be assumed that the device used to generate the information is that contemplated by Section 65 of the Act.
In the present case therefore,the only basis as to why the email print outs cannot be admitted in evidence is if the Defendant is able to prove to the court that the Plaintiff’s email account was in some way tampered with. No evidence in that regard has been placed before this court and the presumption has to prevail that the forwarded email print-out corresponded with the original email.
Given that Section 106B of the Evidence Act already declares print outs of any electronic documents as documents for purposes of the Act, the objection to the production of the print outs must fail on the strength of the presumption allowed under Section 106I of the Act.
For the above reasons, the objection fails and is hereby dismissed. Counsel shall now take hearing dates in the Registry on priority basis so as to complete this trial. Costs shall be in the cause.
Dated and delivered at Nairobi this 19th Day of March, 2015.
A.MBOGHOLI MSAGHA
JUDGE