[2017] KEHC 1731 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

ELECTION PETITION NO. 2 OF 2017

IN THE MATTER OF: THE ELECTIONS ACT CHAPTER 7 LAWS OF KENYA & THE REGULATIONS MADE THEREUNDER

IN THE MATTER OF: ELECTION FOR MEMBER OF THE NATIONAL ASSEMBLY OF ALI MENZA MBOGO FOR KISAUNI CONSTITUENCY

RASHID JUMA BEDZIMBA………………………………PETITIONER

VERSUS

1. ALI MENZA MBOGO

2. MOHAMED ABOUD BAHERO

3. INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION

(IEBC)…………………………………....……….…..RESPONDENTS

RULING

1. By way of an objection made in open court on 4th December, 2017, Mr. Ndegwa learned Counsel for the 1st Respondent argued that exhibits AO2 and AO3 which PW11 sought to produce were not anchored in his Further Affidavit filed on 1st December, 2017 and that the said Further Affidavit was not in the manner prescribed by Rule 9 of the Oaths and Statutory Declaration Rules.

2. Counsel contended that Rule 9 of the Oaths and Statutory Declaration Rules, requires that all exhibits to an affidavit shall be securely sealed thereto by the seal of the Commissioner and marked. Mr. Ndegwa stated that the document in issue was a certificate under Section 106B of the Evidence Act yet the certificate was not fastened to the affidavit nor was it produced by the Further Affidavit of PW11, OMAR ABDALLAH.

3. Mr. Ndegwa further submitted that even if the certificate was properly annexed to the Further Affidavit it would still not satisfy the requirements under Section 106B of the Evidence Act. Counsel pointed out that the certificate does not indicate the user of the computer, the computer is not identified, the period when the printing was done is not stated and there is no indication whether the computer was operating normally during that period. Counsel argued that Section 106B requires that the person who did the printing should be the one to swear about the process.

4. Mr. Khagram, learned Counsel for the 2nd and 3rd Respondents supported the objection. In support of the contention by Mr. Ndegwa that the Further Affidavit has not complied with the requirements of Section 106B of the Evidence Act, Mr. Khagram cited the case of County Assembly of Kisumu & 2 others versus Kisumu County Assembly Service Board & 6 others [2015] eKLR.

5. Mr. Abed, learned Counsel for the Petitioner, opposed the objection and stated that the objection had been made in bad faith as no notice was given to the Petitioner. Further, Counsel submitted that the deponent to the Further Affidavit was present in court and can be cross examined about the circumstances under which the print outs were made.

6. Mr. Abed contended that under Section 106B (4) it is not mandatory to annex the certificate to the affidavit and urged this court to dismiss the objection.

7. Mr. Ndegwa, in rejoinder, submitted that contents of a certificate as required under Section 106B may also be averred in an affidavit and in this case contents of the certificate are not in any of the affidavits of PW11, OMAR ABDALLA. Counsel argued that if the averment are in the certificate then the certificate must conform to Rule 9 of the Oaths and Statutory Declaration Rules.

Analysis and Determination

8. Having carefully considered the objection and the submissions made thereto, the only issue that arises for determination is whether this court should allow production of exhibits marked AO2 and AO3 (Exhibits AO2 and A03 are printed out pictures and a CD-DVD-R respectively) by PW11- OMAR ABDALLAH.

9. The aforementioned exhibits are annexed to the affidavit of OMAR ABDALLAH sworn on 4th September, 2017. Without the leave of this court the Petitioner filed a certificate under Section 106 B (4) of the Evidence Act on 10th October, 2017. By a ruling made on 30th November, 2017, this Court granted the Petitioner leave to file a Further affidavit to anchor the certificate required under Section 106B of the Evidence Act. Subsequently, the Petitioner filed a Further Affidavit sworn by OMAR ABDALLAH on 30th November, 2017.

10. It is on the basis of the Further Affidavit sworn on 30th November, 2017 that Mr. Ndegwa raised the foregoing objection. Counsel argued that the exhibits AO2 and AO3 are not anchored in the Further Affidavit thus do not comply with Rule 19 of the Oaths and Statutory Declaration Rules. Rule 9 of the Oaths and Statutory Declaration Rules provides as follows:

“All exhibits of affidavits shall be securely sealed thereto under the seal of the commissioner, and shall be marked with several letters of identification”.

11. I have carefully perused through the Further Affidavit sworn by OMAR ABDALLAH on 30th November, 2017 and filed in court on 1st December, 2017. The said affidavit contains seven (7) paragraphs and in none of the paragraphs does the deponent refer to or mention Exhibits AO2 and AO3. The Deponent did not also annex the said exhibits nor did he mark them. The deponent simply states at paragraph 5 that:

“THAT I proceeded to attach the videos and pictures on my affidavit sworn on 4th September and filed on 6th September, 2017”.

12. Being that this court granted leave for the filing of the Further Affidavit in order to anchor the certificate under Section 106B, and bearing in mind that the certificate related to the exhibits AO2 and A03, it was incumbent upon the Petitioner to ensure that the Further Affidavit did indeed anchor the exhibits and annexed them while being properly marked and also that it included the certificate under Section 106 B of the Evidence Act as an annexure. I do therefore accept Mr. Ndegwa’s submission that the Further Affidavit does offend Rule 9 of the Oaths and Statutory Declaration Rules.

13. Mr. Ndegwa further contended that even if the Further affidavit was proper and included the certificate under section 106B of the Evidence Act as an annexure, the Further Affidavit would still not satisfy the requirements of Section 106B of the Evidence Act

14. Section 106B provides:

(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on paper, stored, recorded or copied on optical or electro-magnetic media produced by a computer (herein referred to as “computer output”) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein where direct evidence would be admissible.

(2) The conditions mentioned in subsection (1), in respect of a computer output, are the following—

(a) the computer output containing the information was produced by the computer during the period over which the computer was used to store or process information for any activities regularly carried out over that period by a person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its content; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in paragraph (a) of subsection (2) was regularly performed by computers, whether—

(a) by combination of computers operating in succession over that period; or

(b) by different computers operating in succession over that period; or

(c) in any manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, then all computers used for that purpose during that period shall be treated for the purposes of this section to constitute a single computer and references in this sections to a computer shall be construed accordingly.

(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—

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) 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;

(c) dealing with any matters to which conditions mentioned in subsection (2) relate; and

(d) purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or there 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.

(5) For the purpose of this section, information is supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of an appropriate equipment whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purpose of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities.

15. The Court of Appeal stated the reasons for the requirements under Section 106B of the Evidence Act in the case of County Assembly of Kisumu & 2 others versus Kisumu County Service Board & 6 others [2015] eKLR as follows:

“In our view, this is a mandatory requirement which was enacted for good reason. 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 vouchsafe the authenticity and integrity of the electronic record sought to be produced.”

16. The Petitioner filed a certificate under Section 106B on 10th October, 2017 without the leave of this court and on 30th November, 2017 this court granted the Petitioner leave to file a further affidavit in order to anchor the certificate. The Further affidavit was indeed filed on 1st December, 2017.

It is worth noting that the Evidence Act does not provide the form the Certificate under Section 106B (4) should take. The Court of Appeal in the case of County Assembly of Kisumu & 2 others (supra) held that the certificate can take any form including averments in the affidavit of the recorder.

17. The certificate filed on 10th October 2017 which was in the form of an affidavit and the further affidavit both sworn by PW11, OMAR ABDALLAH only stated the electronic gadget that was used to take the photos and record the video being an iPhone7, serial number F71SL1GTHG71. In the Further Affidavit filed on 1st December, 2017, the deponent states that on 2nd September, 2017 he connected his iPhone to his laptop and exported the pictures and videos taken on 9th August, 2017 and proceeded to burn them on several Compact discs and saved them on his flash drive and later on the same day he printed them at a cyber café in Mombasa town.

18. The certificate and the Further Affidavit only indicate the source of the photographs and videos. There is no reference to the computer that was used to print the pictures, the period within which the computer was used to store and process the information, the person that lawfully had control over the use of the computer. The Petitioner has also not established that the information contained in the electronic record was regularly fed into the computer and that during this period the computer was properly functioning.

19. Further, Section 106B (4) (d) of the Evidence Act provides the following in relation to the person making the averments in the certificate:

“(d) purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or there 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.”

20. In this case, the certificate was not signed by the person who purportedly was in charge of the device that was printing the photographers nor did the deponent explain to the best of his knowledge how the photographers were transferred from his phone to printed form and how the videos were transferred to a DVD-R. The Petitioner did not even reveal who processed the images into print form.

21. For the above reasons, the certificate filed on 10th October, 2017 and the further affidavit filed on 1st December, 2017 do not meet the requirements of Section 106B of the Evidence Act. Therefore, the objection made by the 1st Respondent on 4th December, 2017 is upheld.

Dated, Signed and Delivered in Mombasa this 6th day of December 2017.

E. K. O. OGOLA

JUDGE

In the presence of:

Mr. Ndegwa & Mr. Aziz for 1st Respondent

Mr. Abed & Mr. Mohammed for Petitioner

Mr. Khagram & Ms. Oyier for 2nd and 3rd Respondents

Mr. Silas Kaunda Court Assistant