[2017] KEHC 1702 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

ELECTION PETITION NO. 7 OF 2017

IN THE MATTER OF: ARTICLES 1, 2, 3, 10, 19, 20, 22, 23, 47 AND 73 OF THE CONSTITUTION OF KENYA

IN THE MATTER OF: CHAPTER SEVEN AS READ TOGETHER WITH CHAPTER SIX OF THE CONSTITUTION OF KENYA, 2010 (REPRESENTATION OF THE PEOPLE)

AND

IN THE MATTER OF: CONTRAVENTION OF ARTICLES 1, 2, 10, 81, 83 AND 86 OF THE CONSTITUTION BY THE RESPONDENTS

AND

IN THE MATTER OF: THE ELECTIONS ACT CAP 7, ELECTIONS (TECHNOLOGY) REGULATIONS, 2017 AND THE ELECTION OFFENCES ACT NO. 37 OF 2016

AND

IN THE MATTER OF: THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION ACT, 2012

AND

IN THE MATER OF: THE LEADERSHIP AND INTEGRITY ACT, 2012

BETWEEN

MOHAMED MAHAMUD ALI.......……….……………………........….... PETITIONER

VERSUS

INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION …..…….....………………..….. ..1ST RESPONDENT

AISHA ABUBAKAR, CHANGAMWE CONSTITUENCY

RETURNING OFFICER ……….....…….....……..…………...….. 2ND RESPONDENT

OMAR MWINYI SHIMBWA..………...……..…....………………3RD RESPONDENT

RULING NO. 4

1. This ruling arises out of an objection raised by Counsel for the respondents in respect to production of a video clip by PW27, Mr. Abdi Mohamed Daib as deposed in paragraph 16 of his affidavit sworn on 5th September, 2017. It is worth noting that the said witness was one of the candidates that vied for the seat of Member of the National Assembly for Changamwe Constituency on 8th August, 2017.

2. Mr. Munyithya, Learned Counsel for the 1st and 2nd respondents argued that for the said video clip to be allowed in evidence, a certificate of the person who took the video clip should be produced in accordance with section 78A of the Evidence Act. He added that the said certificate must be duly signed by the person who recorded the video clip. He submitted that there was no extract of the print out of the video clip attached to the petitioner’s documents. He further stated that production of the said video clip would run counter to the provisions of section 78A of the Evidence Act.

3. Mr. Mohamed, Learned Counsel for the 3rd respondent submitted that section 78(A)(3)(c) of the Evidence Act underscores the importance of the manner in which the originator of the electronic and digital evidence was identified and in this case no basis has been laid on the person who took the video clip and its production. He added that the petitioner did not provide copies of the video clip to the respondents.

4. Mr. Gikandi’s submission was that the objection taken is not meritorious as the electronic evidence intended to be produced relates to an event that PW27 was involved in. He stated that production of the video clip is aimed to corroborate facts that came to the knowledge of the witness as he dealt with the issue of ballot boxes. Counsel argued that the video clip is from a reputable media house, Citizen Television. He added that 2 months had elapsed since the petition was filed, with no objection being raised on the said video evidence. He stated that section 78(A)(1) of the Evidence Act provides that in legal proceedings, electronic messages and digital material shall be admissible in evidence. In his view, a certificate is not necessary as PW27 was present when the video was taken.

5. In responding to the foregoing, Mr. Munyithya submitted that in paragraph 16 of PW27's affidavit, he deposes that the video clip was recorded by Citizen Television officials but no affidavit was sworn by the person who took the video clip.

6. Section 78A(4) of the Evidence Act provides as follows:-

“Electronic and digital evidence generated by a person in theordinary course of business, or a copy or printout of or an extractfrom the electronic and digital evidence certified to be correct by aperson in the service of such person, is on its mere production, in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self-regulatory organization or any other law or common law admissible in evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract."(emphasis added).

7. In this case no proper basis has been laid for production of a video clip that was taken by an official of Citizen Television. Even if PW27 was present at the scene when the video clip was taken, he did not do the actual recording. No certificate has been produced as required under section 78A(4) of the Evidence Act to verify how the video was taken, processed and stored subject to its production in court and that it has not been interfered with. Moreover, the person who took the video clip was not in the service of PW27 and therefore even a certificate would not suffice in the absence of the Citizen TV official being called as a witness by the petitioner.

8. Section 83I of the Kenya Information and Communications Act, Act No.2 of 1998 defines an electronic record as"a record generated in digital form by an information system, which can be transmitted within an information system or from one information system to another and stored in an information system or other medium."

9. Section 83I thereof provides as here under:-

“Where any law requires information to be presented or retained in its original form, that requirement is met by an electronic record if-

“(a) there exists a reliable assurance as to the integrity of the information from the time when it was first generated in its final form as an electronic message or otherwise; and

(b) where it is required that information be presented, that information is capable of being displayed to the person to whom it is to be presented.

2. Subsection (1) applies whether the requirement therein is in the form of an obligation or whether the law simply provides consequences for the information not being presented or retained in its original form.

(3) For the purposes of section 1(a) –

(a) the criteria for assessing integrity shall be whether the information has remained complete and unaltered, apart from the addition of any endorsement and any change which arises in the normal course of communication, storage and display; and

(b) the standard of reliability required shall be assessed in the light of the purposes for which the information was generated and in light of all the relevant circumstances.”

10. It is clear that the foregoing provisions were not adhered to and PW27 also failed to show that a security procedure had been applied on the video clip and it had not been manipulated. Section 83N of the Kenya Information and Communications Act provides as follows:-

“Where any security procedure has been applied to an electronic record at a specific point in time, then such record shall be deemed to be a secure electronic record from that point of time to verification.”

11. In the Election petition of Hassan Noor Hassan vs Independent Electoral and Boundaries Commission [IEBC] and 3 Others [2017]eKLR, Ochieng J., declined to allow the production of a video clip for failure of the person who took the said video clip to comply with the provisions of the Evidence Act and the Kenya Information and Communication Act.

12. For the reasons espoused in this ruling, I hereby sustain the objection raised by Counsel for the 1st, 2nd and 3rd respondents as to the production of a video clip by PW27 in support of the petitioner’s case.

DELIVERED, DATED and SIGNED at MOMBASA on this 2ndday of November, 2017.

NJOKI MWANGI

JUDGE

In the presence of:-

Mr. Gikandi for the petitioner

Mr. Munyithya for the 1st and 2nd respondents

Mr. Mohamed for the 3rd respondent

Mr. Oliver Musundi - Court Assistant