[2019] KEHC 3955 (KLR)
The court found that the photographs in question were not computer generated and thus did not fall under Section 106 of the Evidence Act, which governs electronic evidence. Instead, they are governed by Section 78, which allows for the admissibility of photographs as evidence when accompanied by a certificate from...
Source-derived case information.
- Citation
- [2019] KEHC 3955 (KLR)
- Parties
- Applicant: Republic; Respondent: Nicholas Muu Kiteng'e
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 18 of 2018
- Procedural Posture
- Criminal Trial / Ruling on Evidentiary Objection
- Outcome
- objection dismissed; exhibits admitted
- Legal Topics
- Admissibility of Evidence, Electronic Evidence, Photographic Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Nicholas Muu Kiteng'e
Respondent
Procedural Posture
Criminal Trial / Ruling on Evidentiary Objection
Legal Issues
- 1 Whether the photographs of the recovered cattle heads are admissible as evidence under the Evidence Act.
- 2 Whether the certificate accompanying the photographs complies with Sections 78, 79, and 106 of the Evidence Act.
Ratio Decidendi
The court found that the photographs in question were not computer generated and thus did not fall under Section 106 of the Evidence Act, which governs electronic evidence. Instead, they are governed by Section 78, which allows for the admissibility of photographs as evidence when accompanied by a certificate from the person who took them. The court further held that there is no legal requirement for the certificate to be dated the same day as the photographs were taken. The defence retains the right to cross-examine the witness on the certificate and to submit on legal issues at the appropriate time. Consequently, the objection to the admissibility of the photographs and certificate was...
Court Disposition
objection dismissed; exhibits admitted
Orders
- The objection to the admissibility of the photographs and certificate is dismissed.
- The photographs and certificate shall be produced as exhibits.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCR NO. 18 OF 2018
REPUBLIC...........................................................................PROSECUTION
VERSUS
NICHOLAS MUU KITENG’E...................................................ACCUSED
RULING
1. Pw10 Sergent Paul Kiilu of DCI Makueni scenes of crime section took photos of recovered heads of cattle. As per the certificate before the court, he was appointed as scenes of crime officer vide gazette notice No. 10284 of 6th December, 2006. Mr. Muli for the accused objected to the production of these photos because the certificate by Sgt Paul Kiilu was not in compliance with Section 78, 79 and 106 of the Evidence Act on admissibility of electronic evidence.
2. Mrs. Owenga for the prosecution opposed the objection saying those were issues to be tackled in cross examination since the witness was present in court.
3. I have considered both submissions. The photographs before this court have not been shown to be computer generated to be governed by Section 106 of the Evidence Act. They fall under Section 78 Evidence Act. The witness is the person who took the photos and has done a certificate to that effect. There is no requirement that the certificate must be dated the date of taking the photos.
4. The defence will have an opportunity to cross examine the witness on the issues he is raising about the certificate. He may also submit on issues of law on the subject at an appropriate time.
5. My finding is that the objection is not merited and the photos and certificate shall be produced as exhibits.
DELIVERED, SIGNED & DATED THIS 1ST DAY OF OCTOBER 2019, IN OPEN COURT AT MAKUENI.
……………………………….
H. I. ONG’UDI
JUDGE