https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9092

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG’A** **COMMERCIAL AND TAX DIVISION** **COMMERCIAL CASE NUMBER 10 OF 2019** **HANNAH WAMBUI MUCHORI…………………………...…..…….1ST PLAINTIFF** **ANTONY MBURU WAMBUGU………………………….……...…...2ND PLAINTIFF** **VERSUS** **CAPWEL INDUSTRIES LIMITED..………………………………1ST DEFENDANT** **KAMEME FM (MEDIA MAX)…………………………….……….2ND DEFENDANT** **INOORO TV (ROYAL MEDIA)……………………….………….3RD DEFENDANT** **AND** **SARACEN MEDIA LIMITED…………………………...………1ST THIRD PARTY** **NUSU NUSU PRODUCTIONS LIMITED……………...………2ND THIRD PARTY** **RULING** 1. On 1st December,2025 this matter came up for hearing. The Plaintiff’s Counsel, Mr Mwathime informed court that they were to call two witness to present Plaintiff’s case. However, Ms Mango, counsel for the 1st Defendant informed court that there were two issues to be addressed before the hearing. She pointed out that: 2. There was a request for Judgment to be entered against the third party NUSU NUSU Productions Ltd which was uploaded on 20th June,2024 and 3. a Chamber summons applications summons dated 14th June,2025 seeking directions and between the 1st Defendant and third party. 4. The court directed that the issues be placed in abeyance to be addressed before the next hearing date. The Plaintiff’s first witness, **Hannah Wambui Muchiri** was then placed on the dock and after introducing herself to court, she confirmed that she had recorded a witness statement before the advocate which she sought to be adopted as her evidence in chief alongside a list of document. 5. Mr Munyori, counsel for the 3rd Defendant objected to the production of some documents No. 2 and 3 on the Plaintiff’s list of documents. They were identified as a DVD disk and screenshots. He cited **Section 106(b) of the Evidence Act** as the basis of his objection. Mr Mwatune, counsel for the plaintiff responded to say that they had a certificate to confirm the authencity and accuracy of the evidence dated 6th may,2026 to which. 6. M/s Manga, Counsel for the 1st Defendant responded to support the objection on the grounds that the certificate sought to be produced does not suffice the Provisions of **Section 106 B** of the **Evidence Act** as the same is deponed by the Plaintiff’s witness but its maker is unknown. She relied on the case of **County Assembly of Kisumu and 2 Others Civil appeal No. 17 and 18 of 2015**. She also pointed out that the Document No. 3. Appear to screen shot from Face book, Twitter, Instagram and Youtube and similar considerations under **Section 106(b**) apply 7. Mr Opiyo, counsel for the 2nd defendant agreed with the objection and added that the certificate dated 6th May,2024 only purports to verify the DVD disk but has not mentioned the source and authencity of the screenshots listed as ‘item No. 3. 8. The court then directed the counsel to canvass the issue by way of written submissions and stood down Pw1 for parties to await the determination of this issue therefore the matter could for further hearing. 9. This ruling therefore concerns the defendants’ objection to the production of the Plaintiffs’ documents itemized as No. 2 and No. 3 of the list of documents dated 18th September,2019 made orally during the hearing of **1st December 2025** and further by written submission by all the parties pursuant to court’s direction on even date. 10. The Plaintiff’s list of documents dated **18th September 2019,** contains the contested items being a **DVD disk recording listed as item No. 2** and, **Item No. 3** comprised ofscreenshots of the advertisement on *Facebook, twitter, Instagram* and *YouTube* platforms. **THE 1ST DEFENDANTS’ SUBMISSIONS** 1. In the 1st defendant’s filed written submissions dated **1st February, 2026** and subscribed to the position that the document referred to by the 1st Plaintiff as a certificate, fails the standard set out under **Section 106B** of the **Evidence Act.** 2. It was further submitted that no certificate was produced as per the requirements of **Section 106B** of the **Evidence Act** with regard to the Plaintiffs’ Item No. 3, therefore, the considerations for Item No. 2 ought to apply for item No.3, thus rendering both items No. 2 and 3 inadmissible as evidence in the suit. 3. The 1st Defendant argued that **Section 106B (4)** of the **Evidence Act** provides for what a certificate of electronic evidence is meant to achieve. Thereunder, the main requirement that such a certificate be signed by a person occupying a responsible position in relation to the **OPERATION** of the relevant device or the management of the relevant activities. 4. According to the 1st Defendant, the certificate sought to be adduced by the 1st Plaintiff narrates the process used to transfer an electronic record from a link on her android phone onto a computer file, which, thereafter was converted to a video file or, VCD. 5. He submits that the electronic recording herein is the recording on the VCD which is what is sought to be adduced as evidence, distinguished from the link in the 1st Plaintiff’s phone. The 1st defendant argued and submitted that the certificate under **Section 106B** of the **Evidence Act** ought to have been in respect of the recording on the VCD and not anything else. 6. Furthermore he submitted that the 1st Plaintiff did not in any way produce the electronic record (i.e. the video recording contained in the VCD), hence, cannot purport to sign the certificate on production of electronic evidence. Moreover, the 1st Plaintiff is not qualified to adduce the certificate in question as she did not occupy a responsible position in relation to the **OPERATION** of the relevant device or the management of the relevant activities captured by the device forming the subject of the depositions set out in the contested certificate. 7. The 1st Defendant urged the court to uphold the objection and disallow production of documents listed as times No. 2 & 3 in the plaintiffs’ list of documents dated**18th September 2019** as evidence in support of their case. **THE 2ND DEFENDANT’S SUBMISSIONS** 1. The 2nd Defendant’s filed written submissions dated **22nd January, 2026** wherein it faulted the Certificate of Electronic evidence lodged by the Plaintiffs in respect of Item No. 2 on the ground of introducing details related to the 1st Plaintiff’s phone, details which, it was argued, are inconsequential to the Certificate of Electronic Evidence which relates to video/DVD evidence. 2. Furthermore, the 2nd defendant submitted that the plaintiffs failed to provide details as to the ownership of the computer and the software in the cyber café used to copy the said media into the compact video disk. 3. The 2nd Defendant described the certificate of electronic evidence filed by the Plaintiffs as defective and in violation of the standards set out under **Section 106B** of the **Evidence Act.** To buttress this, reliance was placed on the holding of the Court in **REPUBLIC V BARISA WAYU MATUGUDA (2011)** **eKLR**. 4. With regard to the plaintiffs’ Item No. 3, the 2nd defendant submitted that the plaintiffs failed to make any effort to demonstrate their source and the integrity of the process relied on during their production, resulting in the infringement of the provisions of **Section 106B (4) and 78(A)** of the **Evidence Act**. **THE 3RD DEFENDANT’S SUBMISSIONS** 1. The 3rd defendant filed written submissions dated **5th December, 2025** andindicted the Plaintiffs’ Certificate of Electronic Evidence as being limited to Item No. 2 only. For clarity, it submitted that the Plaintiffs failed to lodge a Certificate of Electronic Evidence in respect of item No.3 on the list of documents dated **18th September, 2019**. 2. The 3rd defendant further submitted that the Certificate of Electronic Evidence in question is invalid on account of the following: 3. **The computer output containing the information produced by the computer during the period which the computer was used to store or process information for any activities regularly carried out has not been shown;** 4. **The 1st Plaintiff was not a person having lawful control over the use of the computer;** 5. **The information of the kind contained in the electronic record was regularly fed into the computer in the ordinary course of the said activities has not been shown;** 6. **The information contained in the electronic record in the ordinary course has not been shown.** **THE PLAINTIFFS’ SUBMISSIONS** 1. Vide their written’ submissions dated **10th December 2025**, the Plaintiffs subscribed to the position that they have established a sound legal basis for the production of the contested Certificate of Electronic Record in these proceedings. They further submitted that they are competent to produce an electronic record having prepared the requisite Certificate of Electronic Record. Furthermore, that the defendants’ interpretation is legally and practically flawed. 2. The plaintiffs contended and submitted that the publication under contest in these proceedings was conducted by *Inooro TV* and falls under electronic records. 3. They disputed the defendants’ interpretation of **Section 106B** of the **Evidence Act** and submitted that it would offend public policy and render impossible for electronic evidence to be produced before any Kenyan Court of law, if the Defendants’ position were to be upheld by the Court. They urged the Court to overrule the Defendants’ objection as the same is devoid of any legal basis. **ANALYSIS and DETERMINATON** 1. Having read through and considered the arguments by all counsel for the parties herein in the respective oral and written submission before the court, I find the issue for determination being whether items(documents) listed as No. 2 and 3 on the Plaintiffs, list of documents dated 18th September,2019 meet the threshold set out under **Section 106 B of the Evidence Act Cap 80, Laws of Kenya** to warrant their admission as evidence in support of the Plaintiff’s case. 2. The threshold governing the adoption of a Certificate of Electronic Evidence is set out under**Section 106B (4)** of the **Evidence Act** as follows: **(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following—** * + 1. **identifying the electronic record containing the statement and describing the manner in which it was produced;** 2. **giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;** 3. **dealing with any matters to which conditions mentioned in subsection (2) relate; and** 4. **purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate), shall be evidence of any matter stated in the certificate and for the purpose of this subsection it shall be sufficient for a matter to be stated to be the best of the knowledge of the person stating it.** 1. For clarity, **Section 106B** of the **Evidence Act** requires that a certificate be filed in respect of any electronic record placed before a Court. Such a certificate, it states should describe the manner of production of the record or the particulars of the device and contain the signature of the person in charge of the relevant device or the management of the relevant activities. 2. In **the case of Samwel Kazungu Kambi v Nelly Ilongo & 2 others (2017) eKLR**, the Court held as follows: “***Sub-section (4) of Section 106B requires a certificate confirming the authenticity of the electronic record. Such a certificate should describe the manner of the production of the record or the particulars of the device. The certificate could also have the signature of the person in charge of the relevant device or the management of the relevant activities.******”***. 1. In the case of **Republic V Barisa Wayu Matruguda (2011) eKLR,** the court ruled that: ***“….any information stored in a computer…which is then printed or copied…shall be treated just like documentary evidence and will be admissible as evidence 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 that provision are satisfied.”*** 1. And The Court of Appeal in **Civil Appeal No.17& 18 of 2015(consolidated) County Assembly of Kisumu & 2 others vs Kisumu County Assembly Service Board & 6 others** held that the electronic record in dispute was not admissible as the freelance journalist who had made the electronic record did not produce the requisite certificate, therefore, the averments set out in his affidavit did not meet the d threshold under **Section 106B** of the **Evidence Act.** 2. In considering the admission of the Plaintiffs’ Item No.3, in evidence, this court is guided by the finding in the case of **Cytonn Investment Management Plc V John Bosco Matheka (2021) KEHC 13456 eKLR,** where the court stated the law as follows: “…***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 vouch safe the authenticity and integrity of the electronic record sought to be produced.*** ***21.The Applicant’s documents having not satisfied the mandatory requirements of production of electronic documents for want of certificate are hereby inadmissible. Rectification cannot be possible at this stage. The requirement of a certificate is not only want of form but also want of substance on the question of authenticity and the integrity of the publications in question. Consequently, the application fails with costs.”*** 1. I have considered the pleadings and evidence filed by the plaintiffs in support of their case and find that they confirm their source and authencity. Therefore, the screenshots contained therein are rendered inadmissible and shall not be considered by the Court. 2. I have also perused the Certificate of the Electronic record adduced by the plaintiffs dated 6th May, 2024 in respect of item number 2, and find it clearly lacks particulars relating to the computer used to copy the said video into a DVD, thereby, running afoul of the requirements of **Section 106B (4)** of the **Evidence Act.** Moreover, the certificate in question only provides details of the 1st Plaintiff’s phone without the particulars of the computer used to copy the said vedios. In addition, the aforesaid Certificate was signed by the 1st Plaintiff and yet she has not been shown to occupy a responsible position in relation to the operations of the relevant device or management of the relevant activities of production of the said record as contemplated under **Section 106B (4)** of the **Evidence Act.** 3. Consequently, the Plaintiffs’ Item. No 2 is also found wanting, hence hereby held to be inadmissible as it was not accompanied by a certificate in line with the provisions of **Section 106B (4)** of the **Evidence Act**. 4. **In the upshot, the Defendants’ objection with regard to the production of items No. 2 and 3 in the Plaintiff’s list of documents dated 18th September,2019 is hereby upheld. Consequently, having been forced inadmissible in evidence, items Nos. 2 and 3 on the Plaintiff’s list of document dated 28th September,2019 are hereby expunged from the court record.** 5. **It is so Ordered**. **RULING DELIVERED DATED AND SIGNED AT MURANG’A THIS 18TH DAY OF JUNE,2026** **HON. D.O CHEPKWONY (JUDGE)**