[2017] KEHC 2620 (KLR)

THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

ELECTION PETITION NO 1 OF 2017.

MILLITONIC MWENDWA KIMANZI KITUTE....................................................PETITIONER

VERSUS

INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION.....1ST RESPONDENT

THE KITUI EAST CONSTITUENCY RETURNING OFFICER..................2NDRESPONDENT

NIMROD MBITHUKA MBAI.....................................................................3RD RESPONDENT

RULING

Introduction

The Petitioner herein filed an Election Petition on 5th September 2017 challenging the election of the 3rd Respondent as Member of Parliament for Kitui East Constituency in the general elections held by the 1st Respondent on 8th August 2017. The Petitioner herein was a candidate in the elections for Member of Parliament for Kitui East constituency on a NARC party ticket, and was the runner up in the said elections.

This Court directed the parties during the pre-trial conferences held on 13th October 2017 to file their list of contested documents. On 17th October 2017, the 1st and 2nd Respondents filed a list of contested document dated 16th October 2017, in which the printouts marked “MMKKI” annexed to the Petitioners affidavit sworn on 4th September 2017 was indicated as one of the contested documents. The 3rd Respondent on the same date also filed a list of contested documents dated 16th October 2017 indicating that they were contesting the exhibit marked “MMKKI(a)” in the bundle of the Petitioners documents. On 24th October 2017 this Court directed that formal objections to the said documents be made at the time of production of the same for ruling by the Court.

The Objection

The hearing of the Petition commenced on 6th November 2017 with the Petitioner adopting as his evidence the Petition he filed in Court, together with its supporting affidavit and documents annexed thereto which were both dated 4th September 2017 and filed in Court on 5th September 2017.

Ms. Mwinzi, the counsel for the 1st and 2nd Respondents, and Mr. Nyamu, the counsel for the 3rd Respondent, thereupon raised an objection to the admissibility of computer printouts annexed to the said supporting affidavit. Their main grounds are that the said printouts did not meet the requirements of section 106B of the Evidence Act, and in particular that the Petitioner has not complied with the conditions set out in the section and has not provided the certificate of authenticity required by the said section. In addition, that there was no evidence linking the said documents to the 1st Respondent. Reliance was placed on the decisions in R vs Mark Lloyd Stevenson, (2016) e KLR, and Mable Muruli vs Wycliffe Ambetsa Oparanya, (2013) e KLR

The counsel for the Petitioner, Mr. Mutinda, in response submitted that paragraph 9(v) of the Petitioner’s supporting affidavit sworn on 4th September 2017 indicates the source of the said documents as the 1st Respondent’s website, and the 1st and 2nd Respondent’s did not deny the same in their Response to the Petition, and that as such the said documents are owned by the 1st and 2nd Respondents who has availed access to them by candidates and voters.

Further, that the transmission of the contents of the said documents was by the Kenya Integrated Elections Management System (KIEMS) which cannot be manipulated by the Petitioner, and that the Respondents are not specific as to which the documents they have objected to and only indicate MMKK1, whereas the Petitioner had annexed two annexures namely “MMKKI (a) to (d)” and “MMKK2 (a) to (d)” to his affidavit.

The counsel for the Petitioner also sought to distinguish the authorities relied on by the Respondents on the grounds that R vs Mark Lloyd Steveson (2016) e KLRdealt with criminal proceedings, while the issue inMable Muruli vs Wycliffe Ambetsa Oparanya, (2013) e KLRwas the admissibility of a CD which is not the case herein.

The Determination

I have considered the arguments made by the counsels for the Respondents and the Petitioner on the objection before the Court. The issue before the Court is whether the documents annexed to the Petitioner’s Supporting Affidavit sworn on 4th September 2017 as Annexure “MMKK1” are admissible as evidence. The Petitioner in paragraph 9(v) of his supporting affidavit describes the said annexure as “the results for the six ward (sic) downloaded from the website f(sic) the 1st Respondent”. He also annexes Annexure MMKK2(a) to (d) which is in the same format, which he describes as “four polling stations which show that the voters were more than registered voters”.

The findings of this Court as to any one of the documents in the Petitioner’s Annexures marked as “MMKKI” will therefore necessarily have to apply to all the Annexures marked as “MMKK1 (a) to(f) and Annexure MMKK2 (a) to (d) as by the Petitioner’s own averments and submission, the Annexures are all of the same type,and from the same source, which is that they were downloaded from the website of the 1st Respondent.

The Applicable law as regards is admissibility of evidence is the Evidence Act, (Chapter 80 of the Laws of Kenya), which in section 2 provides for its applicability as follows:

“(1)This Act shall apply to all judicial proceedings in or before any court other than a Kadhi’s court, but not to proceedings before an arbitrator.

(2) Subject to the provisions of any other Act or of any rules of court, this Act shall apply to affidavits presented to any court.”

The provisions of the Evidence Act therefore apply to all judicial proceedings be they criminal proceedings as in R vs Mark Lloyd Steveson(2016) e KLR,or election petitions as in the case of the present proceedings. The only exception are proceedings in Kadhi’s Court where Islamic law applies. It is notable that the Evidence Act also applies to affidavit evidence adduced in Court.

As regards admissibility of electronic evidence, section 78 A of the Evidence Act provides that electronic messages and digital material shall be admissible as evidence in any legal proceedings. Sections 106A and B of the Evidence Act in addition provides for the conditions for admissibility of electronic records.To paraphrase, Section 106A of the Evidence Act provides that the contents of electronic records may be proved in accordance with the provisions of section 106B.

Section 106 B on the other hand requires any information contained in an electronic record whether it be the electronic record (whether it be the contents of a document or communication printed on a paper, or stored, recorded, copied in optical or magnetic media produced by a computer), is deemed to be a document and is admissible in evidence without further proof of the production of the original, providing the conditions set out in section 106B (2) for the admissibility of evidence are satisfied.

The Petitioner has in this regard not disputed the fact that the impugned documents are electronic documents, and has admitted to have downloaded the same from a website before printing them out. The said documents therefore fall within the ambit of section 106B of the Evidence Act.

These conditions set out in section 106B(2) are as follows:

1. At the time of creation of the electronic record, the computer output containing the information was produced from a computer that was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer.

2. During the period, the kind of information contained in the electronic record was regularly fed in to the computer in the ordinary course of the activities.

3. Throughout the material part of the period, the computer was operating properly or, if not, the computer was out of operation for some period, but it was not such to affect the electronic record or the accuracy of the contents.

4. The electronic record bears the information reproduces or is derived from such information fed into the computer in the ordinary course of the regular activities.

Section 106B (4) further mandates the production of a certificate of authenticity of electronic evidence which is signed by a responsible person who was responsible for the computer on which the electronic was created or stored, in order to certify the qualifications set out above. The certificate must uniquely identify the original electronic record, describe the manner of its creation, describe the particulars of the device that created it, and certify compliance with the conditions of sub-section (2) of section 106B.

It is clear from the provisions of section 106B of the Evidence Act that the proponent of an electronic record has the burden of satisfying the conditions set out therein, and for establishing the electronic record’s authenticity. In the present petition, the proponent of the documents that are objected to is the Petitioner, as he is the party seeking to rely on the said documents. The Petitioner cannot therefore escape this burden nor shift it to the 1st and 2nd Respondents by urging that there was no need for compliance as the documents are sourced from the 1st Respondent’s website. In addition, the Petitioner did not provide any evidence of the source of the said document including the author, the title of the document, the URL protocol specifying the website address it was retrieved from, and the date of retrieval, to support his allegations and enable the 1st and 2nd Respondents confirm its authenticity.

Secondly, it is evident that the provisions of section 106 B of the Evidence Act are intended to ensure the reliability and authenticity of an electronically-produced document, and the procedure set out therein is aimed at preventing printed copies of the electronic records adduced as evidence in court being manipulated altered or tampered with. Furthermore, since the Evidence Act in section 78A provides that all forms of computer outputs are admissible as evidence, the requirement for authentication in section 106(B) of the Evidence Act is thus mandatory to ensure that the credibility and evidentiary value of electronic evidence.

This necessity for the conditions and safeguards set out in section 106 B has been explained in various cases including that of Coalition for Reform and Democracy & Another vs Republic of Kenya & Another High Court (Nairobi) ,Constitutional Petition No. 628 of 2014, and Republic vs Mark Lloyd Steveson (2016) e KLR. In William Odhiambo Oduol vs Independent Electoral & Boundaries Commission & 2 Others (2013) e KLR, the Court adopted the following submission as to why electronic evidence is susceptible to manipulation and on the need for caution and compliance with section 106B of the Evidence Act:

“But electronic evidence presents unique characteristics which necessitate careful treatment. First, while alterations on physical document are often immediately visible on its face, this is not the case with electronic material. An electronic document can be, and is often, modified in the process of collecting it as evidence. A common example occurs when a file or application is opened, or copied from one computer into another or into an external hard drive. Changes which are not often immediately visible occur. Second, compared with physical or other forms of exhibit evidence electronic evidence is relatively more difficult to detect and trace the signs of tampering. It can be changed or manipulated much more easily than paper or other forms of evidence without having any obvious trace of such alteration.

Third, computer equipment runs on an artificial intelligence which receives, interpreters and applies human commands. This artificial intelligence has been known to go awry. System crashes, viruses, and/or botnets often occur, compromising the integrity of the material captured, preserved or presented using a computer. Finally, the capturing, preserving and presenting of evidence in electronic form requires a measure of technical knowledge in the operation of the electronic equipment.”

The Supreme Court of India has also held in Anvar P. K. vs. P.K Basheer &Others. (2014) 10 SCC 473 that electronic records are more susceptible to tampering, alteration, transposition, excision, and the like; and that without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice. The said Supreme Court held that similar certification provisions of the Indian Evidence Act were thus mandatory.

In the premises, given that the Petitioner has not shown any compliance with with section 106B of the Evidence Act, and in particular has not produced any certificate showing such compliance and authentication of the documents he annexed to his supporting affidavit sworn on 4th September 2017 as “Annexures MMKK1 (a) to(f)” and “Annexures MMKK2 (a) to (d)”, the said Annexures which he seeks to produce as evidence are found not to be admissible.

The 1st, 2nd and 3rd Respondents’ objection is accordingly found to have merit, and is hereby upheld. The costs of the said Objection shall follow those of the Petition.

Orders accordingly.

DATED, SIGNED, AND DELIVERED AT KITUI THIS 6TH DAY OF NOVEMBER 2017

P. NYAMWEYA

JUDGE