[2022] KEHC 13778 (KLR)

Wanjiru v Mutoko & 2 others (Civil Case 143 of 2011) [2022] KEHC 13778 (KLR) (Civ) (5 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13778 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 143 of 2011

JK Sergon, J

October 5, 2022

Between

Bishop Margaret Wanjiru

Plaintiff

and

Caroline Mutoko

1st Defendant

Felix Oduor alias Mzee Jalango

2nd Defendant

Radio Africa Limited t/a Kiss FM

3rd Defendant

Ruling

1)Pursuant to the cross-examination of Enos Kombo on the admissibility of the audio compact disks, the defence raised an objection on the production of the said disks as evidence in court. Arguments for both parties were canvassed through written submissions.

2)The plaintiff in her submissions argued that the honourable court delivered a ruling on the objections raised by the defendants that the contents of the certificate may not contain all the requirements set out under section 106B of the Evidence Act but contains sufficient information as required under the section.

3)The honourable court directed the plaintiff to file a further certificate including the particulars used in the production of the electronic record. She contends that the ruling was not set aside, varied and/or otherwise discharged and remains a valid decision. The first certificate’s inadequacies were remedied by the further certificate which complies with section 106B of the Evidence Act. She relied on the case of Samuel Kazungu Kami v Nelly Ilongo the Returning Officer, Kilifi County & 2others [ 2017] eKLR

4)Counsel for the defendants propounded in court that the basis of their objection was not the content of the compact disk but the production and the manner in which it was processed as there is material difference between the master copy and the duplicate.

5)The basis of their submissions is that the certificates did not provide a detailed explanation of the production of the audio disks, which details include the date and time which the disk was first produced, the software used to create the content, the website through which the producer accessed the show and the process the master compact disk underwent thereafter, that is, duplication and truncation. The defendants contend that Enos Kombo’s testimony during cross examination is inconsistent with the contents of the certificate.

6)The issues raised by both parties can be summed up to one main issue; whether the audio disks should be admitted as evidence.

7)Section 106B of the Evidence Act provides that: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 electronic-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.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…(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—identifying the electronic record containing the statement and describing the manner in which it was produced;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;dealing with any matters to which conditions mentioned in subsection (2) relate; andpurporting 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.

8)The 1st certificate by Enos Kombo provided a general explanation that the evidence was produced by the computer, which was used to store or process information and that the audio was produced in the ordinary course of activities.

9)The 2nd certificate was more specific in its description of the audio disk. It stated that audio compact disk was produced using the computer MacOS Sierra, serial number D25JJ074DHJN. The software adobe edition, was used in recording the audio. The audio file was copied into a master cd and later duplicated into four master copies using a duplicating machine ZENITH DVD 11 of serial number ZJ768UJ078 at JIAM Broadcast studios in Nairobi CBD.

10)The purpose of Section 106B is to ascertain the authenticity of electronic records owing to their susceptibility to manipulation; that the document produced in court is as original as when it was first produced. This is why the person responsible for the daily operations of the electronic device has to certify the authenticity of the record. In this case, concerning this record, the person holding the responsible position is Enos Kombo. He explained what happened to the audio from the point it was recorded, to when it was copied and then duplicated into the four copies. The devices used in the production thereof were indicated. Any evidence further than this has to come from the producer of the breakfast show who will then ascertain that the information is not authentic. This, however, is not the duty of the plaintiff. The burden at this point shifts to the defendants to prove that the record is not authentic. The court then has to listen to the audio to get both sides of the story.

11)Article 259 of theConstitutionof Kenya requires that justice is administered without undue regard to procedural technicalities. I reiterate my words in the case ofMable Muruli v Wycliffe Ambetsa Oparanya & 3 others[2013] eKLR“The essence of justice is that a party should be able to approach the court and present his or her case. Such presentation should be supported by his or her oral evidence, electronic and documentary evidence. On the other side the defendants or respondents should also be accorded an opportunity to produce their evidence. By the end of the of the day each party should be able to go back home satisfied that they have presented their case to the court and the court was able to take their evidence. This is in line with the provisions of Article 50 which gives the right to every person to have any dispute resolved by the application of the law in a fair and public hearing before a court. Shutting out the electronic evidence will make the petitioner go back home while nursing the notion that the court did not take her evidence. In Presidential Election Petition No. 5 of 2013 Nairobi the court was able to view electronic evidence and such issues as the authenticity of the evidence did not arise.”

12)The defendants’ objections are in my view based on technicalities. Matters of procedure can be remedied by amendment or in this case, tendering further evidence. There is no limit to this allowance save for the fact that litigation must come to an end. The details of truncation can be remedied by another certificate. However, I do not think them necessary because they are substantive. The procedural aspects of the certificate have in my view been satisfied. The inconsistencies in dates and time of production and modification are also substantive and since they were raised by the defendants, it is upon them to prove this and as said above, the person responsible for the production of the breakfast show is best placed to do this. The defendants are not opposed to the contents of the records but are not satisfied on how the compact disk was processed. There is no claim that the evidence was obtained unlawfully.

13)In the end, I find that the defendants objections are without merit. The audio compact disks presented by the plaintiff are admissible and the plaintiff is allowed to produce the same as evidence in court.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 5TH DAY OF OCTOBER, 2022. .............................J. K. SERGONJUDGEIn the presence of:……………………………. for the Plaintiff……………………………. for the 1st Defendant……………………………. for the 2nd Defendant…………………………… for the 3rd Defendant