[2022] KEHC 12345 (KLR)

Keter & another v Republic (Criminal Appeal 6 of 2020) [2022] KEHC 12345 (KLR) (16 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12345 (KLR)

Republic of Kenya

In the High Court at Naivasha

Criminal Appeal 6 of 2020

RM Mwongo, J

June 16, 2022

Between

Alfred Kiptoo Keter

1st Appellant

Surjeev Kaur Birdi Alkas Sonia

2nd Appellant

and

Republic

Respondent

(Being an appeal from the Ruling of Hon. K Bidali, C.M dated 13th February, 2020 in Naivasha Criminal Case No. 7428 of 2015. )

Judgment

Background Facts 1. On February 13, 2020, the lower court ruled as follows concerning a Compact Disk (CD) sought to be produced into evidence by the prosecution:“It is my understanding that the court found that the playing of the subject [CD] without a certificate as prescribed under section 106(b) [of the Evidence Act] would not be proper. As the said certificate is now available, I hold that the circumstances have since changed. It appears to me that the prosecution has since complied with the court’s directions; case to proceed”

2. Dissatisfied with that ruling, the appellants filed an urgent application seeking to stay the proceedings of the lower court; and urging this Court to disallow the introduction of the video evidence in the CD. In an interlocutory ruling dated 2nd November, 2020, this Court restrained the lower court from taking into account the contents of the subject CD pending the hearing of the substantive appeal. This Court’s ruling held:“24. In my view, and taking into consideration the issue of expeditious disposal of the proceedings, I think the appropriate orders to make in this case include an order to isolate the CD whilst allowing the proceedings to be expedited without leading to any prejudice to the Applicant or the other parties.

25. This means that I will and hereby make orders as follows:1. The contested evidence, namely the CD and the footage therein, are stayed from use in the trial court pending the determination of the appeal.2. The proceedings in the trial court may proceed with prosecution witnesses up to conclusion of the prosecution case, but the trial court shall not rule on whether there is a case to answer until the appeal is determined.3. For clarity, it is directed that until determination of the appeal, no prosecution witness may refer to or be referred to the CD or contested evidence on it.4. The appeal shall be fast tracked within the next 90 days.”

3. In the substantive appeal, which is the subject of this judgment, the appellants assert that the trial magistrate erred:a.In holding that the witness, PW8, could produce and mark a video for identification despite evidence showing that the phone that recorded the video had since crashed;b.By not appreciating that the prosecution was approbating and reprobating and thus jeopardizing the 1st accused’s right to fair trial;c.By not appreciating the provisions of Section 106B and 106B (4) of the Evidence Act on authenticity and production of electronic evidence.

Parties’ submissions 4. Following directions of the court, the 1st appellant and the state filed submissions to dispose of the appeal. As the respondent ended up filing their submissions first, they do not respond issue for issue directly to the appellant’s submissions. No submissions were filed on behalf of the 2nd appellant. I deal with b the submissions as presented by the 1st Appellant in his grounds.

Appellant’s Submissions Ground 1 - On whether PW8 could produce and mark the CD 5. The 1st appellant submits that the trial magistrate ignored an earlier ruling date dated March 30, 2017 by Hon P. Gesora which did not allow the production of the evidence. As such, he contends, the trial magistrate sat on appeal over the said ruling. He argues that the said ruling had duly noted that the device that recorded the disputed evidence crashed, and it would thus be improper to play the video.

6. Counsel argued, in essence, that the trial court presided over by Hon Bidali was of equal jurisdiction and not entitled to take a position different from that taken earlier by the trial court presided over by Hon Gesora in the same case. Reliance was placed on the doctrine of precedent from the case of Jasbir Singh Rai & 3others v Tarlochan Sing Rai Estate & 4others [2013]eKLR.

7. Further reliance was placed on Fitzleet Estates v Cherry[1971] WLR 1345 where Lord Wilberforce is quoted as stating:“Nothing could be more undesirable, in fact, than to permit litigants, after a decision has been given by this House with all appearance of finality, to return to this House in the hope that a differently constituted committee might be persuaded to take the view which its predecessors rejected”

8. On this point the state made no specific response. However, it raised the issue whether the unavailability of the phone that had recorded the evidence affects the admissibility of the evidence.

9. It is clear to me that the issue of stare decisis raised in the appellant’s submission has no relevance in the present circumstances as there is no superior court’s decision which is alleged not to have been followed as precedent. I, of course, accept the argument that a trial court, presided over by one magistrate – if it had taken a specific position on an issue – could not, on the same issue, take a different position merely because it is presided over by a different magistrate.

Ground 2 -the alleged failure to appreciate the Ruling of 30th November 2017 of Hon Gesora resulted in prejudice to the 1st appellant 10. The appellant submitted that after the said ruling was made the respondent stated that they would seek its interpretation by a higher court; or seek review or appeal; but that in the event they did not appeal it and instead affirmed that they were “bound by it”; but nevertheless sought its stay pending appeal which they achieved.

11. To this end the appellant argues that the respondents were dishonestly approbating and reprobating: conduct frowned upon by the courts in Nairob City Council v Thabiti Enterprises Ltd HCCC No 264 of 1996 Nairobi and Air Alfaraj Ltd v Raytheon Aircraft Corporation & AnotherCivil Applic No 29 of 1999. Instead of appealing the said ruling, the respondents – three years later –brought a certificate of production of the contested evidence. That this prejudices the appellant’s right to fair trial by impairing the 1st appellant’s unfettered right to adduce and challenge evidence for inadmissibility, and generally creating unfairness in the trial to the 1st appellant’s detriment.

12. The appellant cited various authorities in this regard, namely:Evans Kidero & 4 Others v Ferdinand Ndungu Waititu & 4 Ors Pet No 18 of 2014 consolidated with Pet No 20 of 2014 SC; Jackson Koome v M’Ilongi M’Ikuamba & 2 Ors [2018]eKLR and Chris Munga Bichage & 2 Ors v IEBC & 2 Ors [2017]eKLR. On this the appellant argues further that the act of bringing the certificate of production after the ruling of 30th March 2017 had the effect of reversing the said ruling due to changed circumstances acknowledged by the trial magistrate.

13. The appellant also submits that this approbation and reprobation further negated the essence of Articles 25 and 50 of the Constitution as the case was not conducted on fair adversarial basis, since the respondents were trying to fill in gaps to their case as they went along so as to secure a conviction. For example, the court should have sought an explanation as to why the prosecution served the certificate of production of evidence dated 30th August 2017, on 5th February 2020, which amounted to an ambush contrary to fair procedure as stated in DPP v Peter Aguko Abok & 35 Ors [2020] eKLR. That it was also noteworthy that the production of the certificate occurred years after the recording device crashed making it difficult to verify the data.

14. Further the appellant submits that allowing the production of the certificate over the appellant’s preliminary objection gave the respondent an unfair advantage over the accused, as it made it difficult for him to fight the charges and put forth his defence. On this the appellant cited George Ngodhe Juma, Peter Okoth Alingo Susan Muthoni v AG [2003]eKLR which prohibited such unfair advantage

Ground 3- that the trial court failed to appreciate the Section 106B and 106B (4) on authenticity and production of electronic evidence 15. On this the appellant submits that Section 106B (4) of the Evidence Act makes preconditions for admissibility of electronic evidence, including certification, which is the first check-post. Referring to the case of MNN v ENK [2017] eKLR, the appellant urges that mobile phones fall into the category of devices subject to the rule, and a certificate must be produced of any record emanating from it.

16. It is further argued that Sections 106B and 106B (4) constitute a complete code, with the latter being the procedure. In the present case, it is argued that the certificate must be obtained at the time the video is taken, without which secondary evidence pertaining to that electronic record cannot be produced. As such the same in inadmissible.

Ground 4 – that the trial court failed to appreciate that a certificate under section 106B (4) cannot be adduced by secondary evidence 17. Finally, in furtherance of the argument in ground 3, the appellant submitted that the certificate under Section 106B can only be furnished by the person in control of the said device. Here, the respondent was seeking that a party who was not in control of the device (which had since ben crushed) should be permitted to produce the evidence. Indeed, the person who burnt the video into a CD was not in possession of the crushed mobile phone which took it, and therefore cannot testify about the contents of the CD

18. On this point the appellant cited Ndwiga Steve Mbogo v IEBC & 2 Others [2017] eKLR and Francis Wambugu Mureithi v Owino Paul Ongili Babu & 2 Ors [2018] eKLR. In both cases, the courts were of the opinion that the originator of the contents of the video was the appropriate person to produce it as he could answer to any questions surrounding the original recording.

Respondent’s Submissions 19. The respondent’s first plank of submission concerned whether the admissibility of the video as evidence is affected by the unavailability of the phone used to record the video. On this, the respondent urged that prior to the phone becoming unavailable, the video recording had been extracted from it; that the phone fits into the description of a computer as defined in section 3 of the Evidence Act and section 2 of the Kenya Information and Communications Act as read with sections 106B (1) and (2) of the Evidence Act on account of the various functions it can perform including receiving, storing and processing data. As such, and in terms of section 78A Evidence Act, the evidence of a computer is admissible and such admissibility cannot be denied merely on the ground that it is not in its original form.

20. The respondent relied on R v Mark Lloyd Stevenson [2016] eKLR wherein the Court (Ngugi, J.) interpreting section 78A Evidence Act, held that electronic evidence was admissible as long as it satisfied the conditions for admission both in that section and section 106B (2) of the Evidence Act.

21. Further, it was argued by the respondent that under section 106 A and B, any information stored in a computer which is then printed or copied to optical media such as a CD, should be treated like documentary evidence, and ought to be admitted without production of the original. It was urged that should production of the video recording be denied, that would be prejudicial to the respondent and amount to a miscarriage of justice to the person who was in possession of the authentic, safely downloaded evidence.

22. The respondent’s second plank of submission was that it would not be prejudicial to the appellant’s right to a fair trial under Articles 25 and 50(1) of the Constitution. It is submitted that throughout the trial the appellant has had opportunity to argue their case; that the respondent’s failure to appeal the ruling of 30th March 2017 of Hon Gesora did not affect the appellant’s rights; that the said ruling gave the prosecution an failure of opportunity to authenticate the electronic evidence; that they promptly authenticated the evidence by way of PW8 signing a certificate of authentication and the same was duly served on the appellants; that the fact that the certificate was served three years after its preparation did not prejudice the appellant’s right to fair trial; and that the appellants petition is premature.

23. On the accused’s right under Article 50(2) (j) to be informed in advance of the case against him, the respondent argued that the provision could not be read restrictively to mean that every bit of evidence must be availed in advance of the trial. The respondent cited R v Ward [1993] 2 ALL ER 557 which was followed locally in Dennis Edmond Apaa and 2 others v Ethics and Anti-Corruption Commission and Another [2012] eKLR where the court held that the prosecution’s obligation is to disclose to the defence all relevant material, and that such obligation is a continuous one that extends during pretrial and trial.

24. The respondent’s third and final plank concerned whether they had satisfied the conditions for production of the video evidence. The respondent relied on section 106 B (4) of the Evidence Act as regards the provision of a certificate of production of electronic evidence describing the manner in which it was produced; providing particulars of any device involved in the production of that electronic record or evidence.

25. The respondent argues that when the trial court gave the prosecution the opportunity to correct its omission by availing a certificate, they did so. They rely on R v Mark Lloyd Stevenson [2016] eKLR which explained the purpose of an authentication certificate as being to demonstrate to the court that that there is reasonable probability that the proposed evidence is what the proponent claims it is without any material alteration. They also rely on R v Barisa Wayu Matugunda [2011] eKLR for the proposition that without a certificate in terms of section 106 any such electronic evidence is inadmissible.

26. Finally, the respondent submitted that by providing a certificate, PW8 asserted that he had the management of the device at the time that he took the contested video and was merely confirming that the gadget was in good working condition when the video was taken

Analysis and Determination 27. Having carefully listened to the parties and carefully considered their submissions, I think there are two issues which arise for determination:a.Whether the decision by Hon Bidali dated contradicted and amounted to an appeal against the ruling of 30th November, 2017 by Hon Gesora.b.Whether a certificate of authentication for a video recorded by use of a gadget which is subsequently unavailable (due to having allegedly crashed) can be admissibleThe effect of the two rulings (Hon Gesora and Hon Bidali) of the trial court

28. I have carefully perused the proceedings of the lower court and the ruling by Hon Gesora. The ruling was as follows:“In the ruling made by Hon Odero (J) she opined that it would have been far more logical to produce the CCTV footage in its raw form. There is evidence that the footage which is the subject of these (sic) objection was captured by PW8 using his iphone. It follows therefore that he is obligated to sign a certificate to authenticate what he wishes to present to court. This is in line with section 106(4) (d) of the Act as he had management of the device which in this case is the iphone 6. This is the case notwithstanding that another analyst had it burned into CD form.I also hold that an attempt to play it without a certificate even at this stage where it is stated that the witness wishes to mark it for identification is not proper.” (Emphasis added)

29. This ruling is clear and simple. The first learned trial magistrate, Hon Gesora, merely held that the video footage sought to have been marked for identification could not be produced for that purpose by PW8, for the reason that it was not supported by a certificate made out under Section 106 of the Evidence Act. The trial court held that the witness was obligated to sign a certificate of authentication; he held that an attempt to play the video without authentication is not proper. Nowhere did the trial court state that the prosecution was barred from obtaining or providing a certificate.

30. The trial court seemed to have accepted evidence to the effect that PW8 had captured the footage using his iphone. It also accepted that the footage had been burned into a CD by another analyst. That point, that is to say the source of the footage, is therefore not in issue. The only issue that the trial magistrate was dealing at the time with was the absence of a certificate under section 106 of the Evidence Act to enable PW8 introduce the evidence for admission. This was the position when the matter was later handled by the latter magistrate, Hon Bidali.

31. Following the said ruling, the prosecution indicated that they would be seeking interpretation by a higher court. They did not subsequently do so. Indeed, even Mr Omogeni, on behalf of the 1st defendant, stated his similar understanding of the ruling when he employed the following words:“The Court has given direction that the clip is not admissible in the absence of the certificate.”(Emphasis added).

32. The appellant argued that in Nairobi City Council v Thabiti Enterprises Ltd Nairobi CA 264 of 1996, the court stated that a party cannot approbate and reprobate, as the prosecution was arguably doing; that court officers should be honest and forthright in their conduct and not approbate and reprobate as stated in Air Alfaraja Ltd v Raytheon Aircraft Credit Corporation & Anor Civl Applic No 29 of 1999.

33. In the Nairobi City Council case Lakha JA was concerned that the appellant having made a part payment toward the decretal sum was then appealing the judgment, and should not be allowed to approbate and reprobate. In the Air Alfaraja case the Court of Appeal was castigating the conduct of counsel who had approved an order as drawn by the opposing counsel, and then later stated that his approval of the said order could not have validated an irregular order.

34. These cases do not, in my view, have specific relevance to the present circumstances. Here, the state counsel merely expressed at bar a proposition that they would seek interpretation from a higher court but eventually did not do so. There was no definite commitment or undertaking; the state was merely cogitating.

35. Indeed in this case, the clear understanding of the parties – both the prosecution and the defence – was that the only obstacle in the way of admission of the said evidence was the absence of a certificate under Section 106 of the Evidence Act. There was no question that the prosecution was barred from providing such a certificate, nor did the state file an appeal then withdraw it.

36. Having carefully considered the said ruling and the proceedings, my view is that according to the ruling of Hon Gesora Magistrate, the only bar to admission of the evidence in the clip was the fact that the certificate under section 106 Evidence Act had not been availed.

37. As indicated, that was the position when the matter was taken over by Hon Bidali. At the hearing on 13/2/2020, however, Mr Omogeni pointed out to the trial court as follows:“I wish to refer the court to the ruling of this court delivered by Hon Gesora in 2017 when production of that clip was declined. The ruling was never appealed against, nothing has changed…the witness stated that his phone crushed and therefore there is no way he can avail the evidence”

38. The prosecution counsel responded setting out his version of his understanding of the said ruling, as follows:“All that was needed was to prepare a certificate under section 106B the same was prepared and served we were not prevented from playing the clip. The witness is only marking the clip. We received the ruling and did not go to a higher court”.

39. Given the conflicting understandings of the parties stated above, Hon Bidali ruled as follows:“I have taken note of the objections raised by the defence and the reply by the prosecution. I have perused the ruling delivered on 30/3/2017 and the proceedings that followed. It is my understanding that the court found that the playing of the subject [clip] without a certificate as prescribed by section 106b would not be proper. As the said certificate is now available, I hold that the circumstances have since changed. It appears that the prosecution has since complied with the court’s directions; case to proceed.”

40. This ruling by Hon Bidali triggered this appeal. In my appreciation, the ruling is to the effect that Hon Bidali understood that all that was outstanding after the ruling by Hon Gesora, was the provision to the court of an authentication certificate. I have already pointed out that from my understanding of the ruling of Hon Gesora, the only issue outstanding and preventing the admission of the video record was the issuance of a certificate under Section 106 of the Evidence Act.

41. I therefore find and hold that if the prosecution’s witness properly complied by availing a certificate as demanded and provided for in terms of section 106, there was due compliance with the court’s demand. Thus, in terms of such compliance with the court’s order, there is no basis to fault Hon Bidali’s decision. There is a plethora of authorities containing jurisprudence to the effect that where electronic evidence has been availed without production of an authentication certificate, such certificate can be later availed to rectify the situation.

42. In light of the foregoing, I find that the decision of Hon Bidali was entirely in tandem with, and did not alter, the decision made in 2017 by Hon Gesora. I so hold.Whether a certificate of authentication for a video recorded by use of a gadget which is subsequently unavailable (due to having allegedly crashed) can be admissible

43. The appellant argued that bringing a certificate for the production of the video as evidence so late in the proceedings, was an attempt by the prosecution to fill in gaps in evidence; that the late production of the said certificate prejudices the appellant in that his fundamental rights to be heard and to receive equal protection and benefit of the law were compromised in terms of Articles 25, 27 and 50(2) of the Constitution; and that availing the certificate to authenticate the production of the video would be improper in light of the fact that the device that had recorded the video had allegedly crashed.

44. The appellant submitted that the prosecution should have been required to provide elaboration as to why the certificate of production dated 30th August 2017 was only served on the applicant on 5th February, 2020, resulting in the prosecution using ambush-like tactics prohibited in DPP v Peter Aguko Abok & 35 Others [2020] eKLR.

45. The state responded by citing Dennis Edmond Apaa & 2 Ors v Ethics and Anti-Corruption Commission and Another 2012 eKLR. In that case, the court referred to R v Ward [1993] 2 AllER 557, where it was held that the prosecution’s obligation to disclose to the defence all relevant material, is a continuous one that extends during pre-trial and trial. The court held as follows:“23. The Court of Appeal dealt with the issue of disclosure of all evidence and material in its possession by the prosecution in the case of Thomas Patrick Cholmondeley v Republic (Supra). It stated, “We think it is now established and accepted that to satisfy the requirements of a fair trial guaranteed under section 77 of our Constitution, the prosecution is now under a duty to provide an accused person with, and to do so in advance of the trial, all the relevant material such as copies of statements of witnesses who will testify at the trial, copies of documentary exhibits to be produced at the trial and such like items. If for any reason the prosecution thinks it ought not to disclose any piece of evidence in its possession, for example, on the basis of public interest immunity, they must put their case before the trial judge or magistrate who will then decide whether the claim by the prosecution not to disclose is or is not justified.”

24. The Court of Appeal adopted the dicta in the case of R v Ward [1993] 2 ALL ER 557 where the Court of Appeal in England was unanimous that, “The prosecution’s duty at common law to disclose to the defence all relevant material, i.e. evidence which tended either to weaken the prosecution case or to strengthen the defence, required the police to disclose to the prosecution all witness statements and the prosecution to supply copies of such witness statements to the defence or to allow them to inspect the statements and make copies unless there were good reasons for not doing so. Furthermore, the prosecution were under a duty, which continued during the pre-trial period and throughout the trial to disclose to the defence all relevant scientific material, whether it strengthened or weakened the prosecution case or assisted the defence case and whether or not the defence made a specific request for disclosure. Pursuant to that duty the prosecution were required to make available the records of all relevant experiments and tests carried out by expert witnesses.” [Emphasis added]

46. It is clear form the authorities that whilst the prosecution has an obligation to ensure that the defence is supplied with all material, the obligation is a continuous one; and that there will be a constitutional infringement only if the accused’s right to adequately prepare for its defence is violated. As such, I have to peruse the record to see what the alleged risks to the defence were.

47. On perusal of the record of proceedings availed by the applicant, I noted that the issue of the absence of a certificate first arose on 30/3/2017 when PW8 was testifying. He began by stating that he recorded a video on his cell phone, an iphone 6. The court asked for clarification as to whether PW8 was producing the clip, and the prosecutor stated that he wished to mark the evidence for identification, but not produce it. The defence objected stating that the witness was not the one who produced the certificate, and that the maker should produce it, and that he had been supplied with two certificates under section 106, one by Musili Frederick.

48. The then trial magistrate, Hon Gesora, then ruled that:“There is evidence that the footage was captured by PW8 using his iphone. It follows therefore that he is obligated to sign a certificate to authenticate what he wishes to present to court…as he had the management of the device which in this case is the iphone 6….”

49. The prosecution then sought time to reflect and decide on the way forward as they thought that they needed to seek instructions from the DPP to either appeal or seek review of the court’s order. The defence also requested the typed proceedings to enable them to cross appeal. In any event, the said PW8 then signed a certificate dated 30th August, 2017, which is now the subject of this appeal.

50. I cannot see how the fact that such a certificate has been introduced can amount to non-disclosure or an ambush against the accused, given that the subject had been raised and the parties were in fact ready to go on appeal on the court’s ruling. I think this argument by the appellant is a red herring. In Peter Abok’s case, the ratio decidendi was that Article 50(2) (b) and (j) give wide protection to the accused notwithstanding the mode of disclosure of evidence since the court should not be seen as controlling the prosecution’s prosecutorial role:“91. I do not see any mischief to be cured by restricted disclosure of evidence. In my humble opinion, there are more benefits when having full disclosure of evidence than restricting it to individual counts or individual accused persons.

92. Since there is no law in place specifically governing disclosure on count per count, it suffices to say that, Article 50(2)(b) and (j) when read together with other provisions governing the trial of criminal proceedings is sufficient engine to drive the entire process without jeopardizing anybody’s rights.

93. Accordingly, it is my finding that the order of the trial court directing that prosecution discloses evidence count by count will amount to demanding to much from the applicant and by extension controlling its prosecutorial role even before the hearing process commences.

94. I am therefore satisfied with the prosecution’s prayers that the trial court improperly and without any underpinning legal frame work arrived at the direction of disclosure of evidence count by count. To that extent, that order and direction is hereby set aside and the prosecution shall be at liberty to supply all material evidence relating to the case to all accused persons whether facing one count or more.”

51. In the present case, as I have pointed out, the defence was aware as far back as March 2017 that PW8 was the person who took the video, but had not supplied a certificate of authentication thereof. Indeed, according to the proceedings, the defence had two other certificates of authentication, and therefore there were no surprises in the production of the present certificate.

52. The appellant further argued that the admission of the impugned evidence would result in an unfair trial because, as I understood it, the video evidence emanated from a device that had crashed, and issuing a post-dated certificate of authenticity after commencement of the trial would in all probability render the data un-verifiable.

53. In its submissions, the State’s response was that the trial court’s ruling gave the prosecution an opportunity to correct its omission by meeting the requirements of Section 106B (4) of producing an authentication certificate. The DPP cited R v Mark Lloyd Stevenson [2016] eKLR and R v Barisa Wayu Matuguda [2011] eKLR.

54. In Mark Lloyd Stephenson’s case it was noted:“40. First, it is important to reiterate that the purpose of authentication is to demonstrate to the Court that there is a reasonable probability that the proposed evidence is what the proponent claims it is. For example, the Trial Court must be put in a place where it can determine that it is reasonably probable that there was no material alteration of the evidence after it came into the custody of the proponent.”

55. In Barisa Wayu’s case it was made clear that for electronic evidence to be admissible it must be accompanied by a certificate and should be signed by a person holding a responsible position with respect to the management of the device, and that producing the evidence without the certificate would render it inadmissible. The critical holding in that case, considered a case classicus where a compact disc (CD) was made from CCTV footage was as follows:“…that where information is stored in a computer such as a CCTV camera, which is then produced or copied to the optical device, such as a CD, should be treated as documentary evidence and is admissible. The court stated that –a.‘Any information stored in a computer… which is then printed or copied… shall be treated just like documentary evidence and will be admissible without the production of the original. However, section 106B also provides that such electronic evidence will only be admissible if the conditions laid out in the provisions are satisfied… The provision makes it abundantly clear that for electronic evidence to be deemed admissible it must be accompanied by a certificate in terms of section 160B (4). Such certificate must be signed by a person holding a responsible position with respect to the management of the device… without the required certificate this CD is inadmissible as evidence.”

56. I perceive that the applicant in the present application has prematurely approached the question of the admission of the evidence sought to be marked. It was clear from the record that all that the state sought at the time of the ruling, was to mark the certificate for identification. On 13/2/2020 the state counsel stated that all that he was doing was “marking the clip” because they had obtained the certificate of the person who recorded it. The prosecutor clarified that they were not playing the clip. This was in response to the defence counsel’s position, which I think was misguided as it went further than had been demanded, when counsel stated that the person who burnt the CD was the only one who can produce the record:“We raised the issue of Section 106 4(B) and it is only the person who burnt the CD who can produce the record.”

57. Clearly, there are different stages that must be addressed when it is sought to adduce evidence under section 106. I am of the view that all that was sought was to lay the foundation by having the person who recorded the video to have it marked, then the person who extracted it and put it into a CD to mark the same then go through the evidentiary rigmarole of having the same admitted, or otherwise.

58. That there are various stages in the authentication process was well put by Ngugi, J, who I quote herein at fair length, as in Mark Lloyd Stephenson’s case as follows:“37. For avoidance of doubt and for future guidance, it is important to point out that authentication is required where any “real” evidence (as opposed to testimonial evidence) is sought to be adduced at trial.1 This applies both to e-evidence as well as other documents or items sought to be admitted into evidence. Authentication of proposed evidence is a crucial step in its admission – one which reliance on section 78A of the Evidence Act (or even section 106B) does not obviate.

38. To avoid confusion it is important to set out where authentication fits into the evidence map. The admission and consideration of tangible exhibit in evidence follows the following steps:

a.First, the Court determines if the proposed evidence is relevant. Here, the Court simply determines the probative value of the proposed evidence: whether the proposed evidence has tendency to make the existence of any fact that is of consequence to the determination of a fact in issue more or less probably that it would be without the evidence. If the proposed evidence passes the Relevancy Test, it proceeds to the second step.b.Second, in the case of tangible exhibits (like the two documents in this case), the Proponent for the evidence authenticates the proposed piece of evidence that is the Proponent must prove that the evidence is what the proponent claims it to be. The court only proceeds to the third step if the proposed evidence passes muster under the Authentication Test. It is important to explain here that the term “authentication” though the technically correct word which is widely used for this step can be misleading. In fact, what is meant by “authentication” at this stage is merely that a proper foundation for admission of the document or exhibit has been laid. It does not, at all, mean that the exhibit must now be accepted and believed. The Trial Court, as the fact finder, must ultimately weigh (in step 4 below) the admitted evidence in light of all the circumstances. The weighing can only happen after the foundation for the proposed evidence has been laid.c.Third, the Court, at the urging of the parties or on its own motion, determines if there is any other rule of evidence that excludes the proposed evidence. Here is the Court considers whether the evidence is excluded by the Constitution (for example the right against self- incrimination discussed above, prohibition against hearsay evidence or whether the proposed evidence would lead to unfair prejudice with its probative value substantially outweighed by the danger of unfair prejudice. If the proposed evidence survives this Exclusion Test, then the proposed evidence is admitted into evidence and the Court proceeds to the fourth step.d.Fourth, the Court considers the weight to be accorded to the admitted evidence. At this stage the opponent may still bring to the Court’s attention evidence opposing authenticity of the evidence, thereby allowing the Court to give less weight to the evidence or no weight at all.”

59. In conclusion I am of the firm view, as earlier stated, that the defence challenge to the state’s attempt to mark the evidence, is premature. The accused is under no threat if the clip or the certificate of the making of the video is marked. There are many opportunities to challenge the evidence throughout the steps outlined in the above case. These will concern issues that may be challenged as affecting either the admissibility or probative value of the evidence sought to be admitted.

60. Given all I have said, I do not think that there is a proper basis, at this stage, to disallow the prosecution from marking for identification either any of authentication certificates or the video to which they refer.

61. For the foregoing reasons, I would dismiss the appeal in its entirety.

62. Orders accordingly.

DELIVERED AT NAIVASHA ON THIS 16TH DAY OF JUNE, 2022. ____________________________R MWONGOJUDGEDelivered in the presence of:1. Omogeni for the 1st Appellant2. No representation for the 2nd Appellant3. Ms Mwangi for the Respondent4. Quinter Ogutu - Court Assistant