[2023] KEHC 25091 (KLR)

Republic v Migiro & 3 others (Criminal Case E009 of 2023) [2023] KEHC 25091 (KLR) (9 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25091 (KLR)

Republic of Kenya

In the High Court at Nyamira

Criminal Case E009 of 2023

WA Okwany, J

November 9, 2023

Between

Republic

Prosecutor

and

Ezekiel Mogeni Migiro

1st Accused

Peris Ondari

2nd Accused

Dennis Ondara Clement

3rd Accused

Peter Njoroge Kirika

4th Accused

Ruling

1. When this matter came up for hearing on 19th October 2023, the prosecution presented the evidence of their 9th witness, No. 101529 PC Victoria Mbula, who introduced herself as a trained forensic and imaging acoustic expert with experience to certify video and audio clips. The witness testified that she is currently stationed at the National Forensic Laboratory Imaging and Acoustic Unit where her duties include retrieval and analysis of CCTV footages having been gazetted to undertake the said duties through Gazette Notice No. 1145 dated 19th January 2023.

2. The witness recalled that she, on 11th October 2023, analysed a CCTV footage that had been presented to her office by No. 85366 Cpl Fredrick Odemba who informed her that the footage was retrieved from Cooperative Bank, Limuru branch. She explained that the CCTV footage, accompanied by an exhibit memo from the Director of Criminal Investigations, was in a flash disk labelled HP 20B. The flash disk was in a sealed khaki envelop marked LIM. She testified that she captured 9 still photographs from the said footage. The footage was played in court during the hearing after which the witness identified each of 9 still photographs that she had captured. The witness testified that she made a certificate that was included in her report.

3. PW9 indicated that she wished to produce the CCTV footage in court as an exhibit when Mr. Nyaberi, learned counsel for the Accused objected to the said production thereby setting the stage for submissions by the said counsel, counsel for the victims and counsel for the state. The objection raised by the defence is the subject of this ruling.

4. Mr. Nyaberi argued that in light of the said provisions of Section 106B (2) (4) (d) of the evidence Act and, PW9 is incompetent to produce the documents because she is not an employee of Cooperative Bank and was not involved in the harvesting of the said content. Counsel added that PW9 is neither the originator of the documents nor the person in control of the machine where the footage/clip was retrieved.

5. Counsel for the defence further argued that the production of the photographs will be prejudicial the accused persons as they had not been supplied with the same beforehand so as to enable them prepare for defence.

6. Mr. Ochoki Counsel watching brief for the victims, submitted that allowing the objection to the production of the documents by PW9 would set a dangerous precedent that may paralyse all criminal trials that involve photographic evidence. He argued that sections 78, 78A and 106B of the Evidence Act permits PW9 to produce the photographic images yet the defence selectively relied on section 106B (4) (d) to buttress the argument that the witness did not occupy a relevant position in the facility where the CCTV footage was obtained. Counsel argued that it will be demonstrated during the trial that the CCTV footage was obtained pursuant to a court order issued to the Investigating Officer. According to Mr, Ochoki, the only person occupying a responsible position to produce the exhibit was PW9.

7. It was further submitted that Section 106B of the Evidence Act should be read alongside Sections 78 and 78A of the Evidence Act which stipulate that in criminal proceedings, photographic evidence is only admissible if it is produced by an officer appointed by order of the Director of Public Prosecutions and gazetted as was the case with PW9. He reiterated that the risk of disallowing the evidence by PW9 would be equivalent to a proposal that the documents in question be produced by a person who is not gazetted. He urged the Court to reject the objection.

8. Mr. Chirchir, Counsel for the prosecution concurred with the submissions by Mr. Ochoki and argued that the Defence deliberately ignored the provisions subsection 4 (a), (b), and (c) and (d) of section 106B of the Evidence Act which outlines the 4 conditions that must be considered in admitting such evidence. Counsel argued that Section 78A (3) is couched in mandatory terms which the witness had complied with because she is a duly gazetted officer as opposed to the witness that the defence proposed from Co-operative Bank. It was submitted that the footage was properly extracted and stored.

9. In a rejoinder, Mr. Nyaberi denied the claim that he was selective on the applicable law. He argued that Section 106B 4 (d) was the most relevant provision to the circumstances of this case. It was submitted that the mischief that the section intended to cure was to have relevant witnesses testify before the court.

10. It was further submitted that Sections 78A and 77 were stand-alone sections and were not in any way connected to the matter before the Court. He submitted that the Prosecution’s admission that the person who was the custodian of this footage was not a gazetted officer confirmed that PW9 was not the ordinary custodian of the footage and that gazzettement was not an enactment under the law or procedure but was merely a practise. He maintained that if the documents were to be certified, such certification should be by the custodian of the clips.

11. Counsel submitted that the video clips were documents by themselves and practise required the use of a stamp on physical documents to show that they were true copies of the originals. He further argued that, in the circumstances of this case, the certificate under Section 106B was the one that would authenticate that the clips were indeed a true copy of what the custodian of the data had.

12. I have considered the objection and the rival submissions by the parties. The main issue for my determination is whether the Objection is merited.

13. The law governing admissibility of electronic evidence is Section 78 of the Evidence Act which stipulates as follows: -78. Photographic evidence—admissibility of certificate.(1)In criminal proceedings a certificate in the form in the First Schedule to this Act, given under the hand of an officer appointed by order of the Director of Public Prosecutions for the purpose, who shall have prepared a photographic print or a photographic enlargement from exposed film submitted to him, shall be admissible, together with any photographic prints, photographic enlargements and any other annex referred to therein, and shall be evidence of all facts stated therein.(2)The court may presume that the signature to any such certificate is genuine.(3)When a certificate is received in evidence under this section the court may, if it thinks fit, summon and examine the person who gave it.

14. The objection, in this case, was premised on Section 106B of the Evidence Act which provides as follows: -106B. Admissibility of electronic records.1. Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a 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; andd.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; orb.by different computers operating in succession over that period; orc.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 these 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; andd.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.

15. My understanding of the above provision is that any electronic or digital evidence to be produced in court must be accompanied by a certificate. This was the position explained by Muchelule J. (as he then was) in William Odhiambo vs IEBC & 2 others [2013] eKLR where it was held that: -“Section 106A of the Evidence Act (Cap 80) provides that the contents of electronic records may be proved in accordance with the provisions of section 106B. Section 106B deals with admissibility of electronic records….Under sub-section (4), where a party seeks to give evidence by virtue of Section 106B he has, among other things, to tender a certificate….”

16. The Defence argued that PW9 was not competent to produce the CCTV footage into evidence because she is not a person occupying a responsible position in the operation of the electronic devices from which the footage was obtained. In essence, the defence argued that the footage analysed by PW9 could not be authenticated as having emanated from CCTV cameras at the Co-operative Bank ATM in Limuru because the person who would ordinarily be in charge of the said CCTV cameras was not called to testify. The Defence also contended that they were not served with the photographs beforehand.

17. I have considered the evidence tendered by PW9, P.C. Mbula who testified that not only was she a trained forensic imaging and acoustic expert but that she was also gazetted to perform her duties. I note that the witness explained the circumstances under which she obtained the CCTV footage before she analysed it in detail and took still photographs which she processed and intended to produce as exhibits. She also prepared a certificate and a report over the said footage. I find that PW9 demonstrated that she complied with the requirements of Section 106B of the Evidence Act.

18. While it was not disputed that PC Mbula was not the originator of the said CCTV footage in question, her evidence revealed the source of the footage to be a DCI officer whom she identified as PC Fredrick Odemba. I find that at this stage of the proceedings, where the prosecution is yet to present the evidence of all their witnesses, it is too early to tell if the said PC Odemba and/or an official from Cooperative Bank is among the witnesses that the prosecution intends to call in this case. I hasten to add that unlike the counsel for the parties herein, this court is not privy to the nature of evidence that the prosecution intends to present before it. It is noteworthy that role of PW9 in this matter was only limited to producing the material that she generated in the ordinary course of her business or duties. For the above reasons, I find that PW9 has laid a basis for the production of the evidence that came into her possession in the course of her work. I find guidance in the provisions of Section 78 A (4) of the Evidence Act which provides as follows: -(4)Electronic and digital evidence generated by a person in the ordinary course of business, or a copy or printout of or an extract from the electronic and digital evidence certified to be correct by a person 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 the common law, admissible in evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract.

19. My interpretation of the above provision is that any digital or electronic evidence generated by a person and certified to be correct by another person who is acting in his ordinary course of business, is admissible as rebuttable evidence.

20. Courts have had occasions to interpreted the import of Section 78 of the Evidence Act when dealing with the issue of production of photographic evidence. In Republic vs. Jackson Ngara Nderitu [2018] eKLR it was held thus: -“…It appears to me that s. 78 sets out the manner in which photographic evidence may be admitted in evidence in criminal proceedings.i.It will be through a certificate in the prescribed form;ii.The certificate must be by an officer appointed for that purpose by the DPP. This appears to be the basis for gazettement of scenes of crime personnel:iii.This certificate to certify that the officer, eithera)prepared the photographic print or prints, orb)prepared or as we used to say ‘developed’ the photographic enlargements from exposed film submitted to him by the person who may have taken the photographs.Meaning he may take the photographs himself or receive film from which he would prepare the photographic print. This photographic evidence must be accompanied by his certificate in the prescribed form.”

21. In Republic vs. Jackson Ngara Nderitu (supra) the court went on to state as follows: -“…I am of the view that section 78 lays the law on how photographic evidence will be admitted in evidence. The photos may be taken by gazetted officer or any other officer. The officer who took them is a competent witness who ought to testify as to their veracity and contents. However, in both cases the production of those photos must be accompanied by the scenes of crimes officer’s certificate that he either took the photos or developed them from whichever source. In the absence of the scenes of crimes officer someone else could produce the certificate on their behalf but the court is at liberty to call him for cross examination if necessary………..Section 78(1) is couched in mandatory terms. There is no skirting around it.”

22. As already stated in this ruling, PW9 disclosed the source of the footage and explained her role in preparing or developing the photographic prints. She also prepared a certificate in compliance with Section 78 in respect to the footage and the still photos. I find that the witness established that she complied with all the requirements of Section 78 of the Act and is the proper witness to produce the evidence in question. In any event, the evidence produced by PW9 is rebuttable. This means that the defence will have the chance, either in cross examination, in their evidence or during submissions to rebut the evidence tendered by the said witness by showing that it was either stage-managed, obtained from a different location other than what was stated by PW9.

23. Furthermore, Section 78 (3) (c) of the Evidence Act speaks to the factors that the court must consider in admitting electronic evidence. The section provides thus: -78A. Admissibility of electronic and digital evidence.(3)In estimating the weight, if any, to be attached to electronic and digital evidence, under subsection (1), regard shall be had to—a.the reliability of the manner in which the electronic and digital evidence was generated, stored or communicated;b.the reliability of the manner in which the integrity of the electronic and digital evidence was maintained;c.the manner in which the originator of the electronic and digital evidence was identified; andd.any other relevant factor.

24. My interpretation of the above provision is that the mere fact that electronic and digital evidence is produced does not connote that the court will automatically attach weight to the said evidence as the court will still have to consider issues such as the reliability in the manner in which the evidence was generated, stored or communicated and the identity of the originator. I therefore find that it will be premature to determine the admissibility of the CCTV footage at this stage of the proceedings before the prosecution calls all its witnesses. It is also my considered view that the Defence will have an opportunity to challenge the authenticity and admissibility of the said footage during cross examination or submissions.

25. Having found that PW9 has complied with all the requirements of section 78 of the Evidence Act, I find she is competent to produce the CCTV footage, still photos, Report and Certificate as required by section 78 of the Evidence Act.

26. I have also considered the claim that the Prosecution did not supply Defence with copies of the 9 still photos captured from the said CCTV footage. I note that it was not disputed that the said still photos were generated from the CCTV footage which had already been shared with the Accused persons prior to the commencement of the hearing. It is therefore my view that the production of the said still photographs will not occasion any prejudice to the accused persons.

27. In sum, I find that the Objection raised by the Defence is not merited and I therefore dismiss it.

28. Turning to the application for the review of this court’s earlier decision on bond pending the trial, I recall that one of the reasons for rejecting the request for bond was the safety of the accused persons owing to the hostility and tension that was reported on the ground following the double murder. I note that the prosecution opposed the review of the decision on bond citing hostility that allegedly still persists within the community where the incident occurred.

29. This court directed the probation officer to file another pre-bail report for its consideration before determining the review application. I have perused the pre-bail report filed on 8th November 2023 and I note that the probation officer still maintains that it is not advisable to release the 2nd accused on bond as her safety may not be guaranteed. The report reveals that the community where the accused comes from is still hostile while the local administration reports that the situation on the ground is still tense. I therefore decline to grant bond to the 2nd accused at this stage.

30. Orders accordingly.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS AT NYAMIRA THIS 9THDAY OF NOVEMBER 2023. W.A. OKWANYJUDGE