1.This ruling as pertains to objection raised in the course of hearing of the main suit when the respondent brought up issues of admissibility of audio recordings as perceived to be electronic evidence.
2.The court has carefully considered the oral submissions by the claimant and the respondent respectively.
3.Section 78A (1) of the Evidence Act (cap 80) provides for admissibility of electronic and digital evidence while section 78A (2) provides that a court shall not deny admissibility of evidence under subsection (1) only on the ground that it is not in its original form. These provisions must be read together with Section 106A which provides that the contents of electronic records may be proved in accordance with the provisions of section 106B which states:-
4.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—
5.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—
6.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.
7.In decision of Jackline Vusevwa Selenge v Olivier Guiguemde  eKLR which relied on the decision of Republic vs Berisa Wayu Matuguda Criminal Case No.6 of 2008, the court considered when a certificate will be admissible and it held:
8.In light of the above, the Claimant vide her Certificate, Confirming the Authenticity, Accuracy and Manner of Production of Audio Recordings and Computer Printouts dated June 23, 2022 sworn by the Claimant confirms the authenticity of the recordings as it has identified the electronic records contained in the statement, described the manner in which it was produced and given particulars of the device involved in the production of the electronic record (CD). The certificate has also been duly signed by the Claimant upon confirmation that she is the person responsible in respect of the management of the computer which was used to transfer the recordings to the SanDisk Cruzer Blade.
9.In view of the fact that the respondent did not oppose the production of the audio recordings during or within the period of pre-trials up to the time the case was in the middle of the hearing this opposition seems to be an afterthought.
10.The court finds no reasons to reject the admission of the audio at this point. The same are admitted as evidence in this court.
11.Case will proceed on 9/11/2023.Orders accordingly.