Case Metadata |
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| Case Number: | Election Petition 2 of 2012 |
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| Parties: | WILLIAM ODHIAMBO ODUOL v INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION & 2 others |
| Date Delivered: | 05 Jun 2013 |
| Case Class: | Civil |
| Court: | High Court at Kisumu |
| Case Action: | |
| Judge(s): | A. O. MUCHELULE |
| Citation: | WILLIAM ODHIAMBO ODUOL v INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION & 2 others [2013] eKLR |
| Case Summary: | Reported by Lynette A. Jakakimba Brief facts The petitioner sought to produce as part of evidence a video which had been developed into a Compact Disc (CD). The petitioner’s chief campaign manager had used his cellphone to take a video of ballot papers which one of the IEBC clerks at Ujwan\'ga polling station in Rarieda Constituency had allegedly attempted to stuff in the ballot boxes at the station. Issues i. Whether video evidence was admissible in election petition proceedings. ii. Whether the requirement that electronic evidence be accompanied with a certificate in terms of section 106B (4) of the Evidence Act could be substituted with the submission of a verifying affidavit. iii. Whether lack of disclosure of the particulars of the device used to develop electronic evidence as required by section 106B of the Evidence Act rendered the evidence inadmissible. Evidence Law – electronic evidence –admissibility of electronic evidence in election petition proceedings – lack of disclosure of the particulars of the device used to develop electronic evidence – whether the requirement that electronic evidence be accompanied with a certificate in terms of section 106B(4) of the Evidence Act could be substituted with the submission of a verifying affidavit- Evidence Act section 106 B Evidence Act section 106 B provided that: “(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; 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 sub-section (2) was regularly performed by computers, whether- (a) by a 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 section 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 sub-section (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 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 sub-section it shall be sufficient for a matter to be stated to 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. Held 1. Ordinary documentary evidence and electronic evidence was to be distinguished. While alterations on physical documents were often immediately visible on the face of the document, this was not the case with electronic material. An electronic document could be modified in the process of collecting it as evidence, compared to physical or other forms of exhibit evidence electronic evidence was relatively more difficult to detect and trace the signs of tampering. Further computer equipment ran on artificial intelligence which received, interpreted and applied human commands; this artificial intelligence was known to go awry. Finally, the capturing, preserving and presenting of evidence in electronic form required a measure of technical knowledge in the operation of the electronic equipment. 2. Section 106B(4)of the Evidence Act provided that for electronic evidence to be deemed admissible it had to be accompanied with a certificate that was signed by the person in control of the device that produced the electronic evidence and the particulars of the device used had to be given. 3. A verifying affidavit was not a certificate, if it were to be taken as such, the petitioner had to show that it met the conditions set in section 106B(4) of the Evidence Act. 4. The reason why the particulars of the computers used in the production of the CD tendered by the petitioner had to be given was so that, if it became necessary, one could trace the devices for audit purposes. Without such information it could not be ascertained that the computers used in the production of the CD tendered by the petitioner were operating properly and therefore that its content was accurate. In the present petition there was no evidence adduced to show who owned, operated and managed the computer, and the particulars of the computer used to produce the CD with the video evidence were not given. Application dismissed. The CD sought to be produced was not admissible |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
REPUBLIC OF KENYA
High Court at Kisumu
Election Petition 2 of 2012
IN THE MATTER OF THE CONSTITUTION OF THE REPUBLIC OF KENYA, 2010
IN THE MATTER OF THE ELECTIONS (GENERAL) REGULATIONS, 2012
IN THE MATTER OF THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION ACT, 2012
IN THE MATTER OF THE ELECTIONS (REGISTRATION OF VOTERS) REGULATIONS 2012
IN THE MATTER OF THE ELECTIONS(PARLIAMENTARY AND COUNTY ELECTIONS) PETITION RULES, 2013
IN THE MATTER OF THE ELECTION FOR GOVERNOR OF SIAYA COUNTY
WILLIAM ODHIAMBO ODUOL ….................................................................................................PETITIONER
THE INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION.............................1ST RESPONDENT
BENSON MUGATSIA..........................................................................................................2ND RESPONDENT
CORNEL RASANGA AMOTH …........................................................................................3RD RESPONDENT
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 the admissibility of electronic records in the following terms:
“106B (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 a 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 to be satisfied are provided in sub-section (2) as follows:
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 denied from such information fed into the computer in the ordinary course of the said activities.
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 dealing with any matters to which the conditions above relate. The certificate should further:
a) identify the electronic record containing the statement and describing the manner in which it was produced; and
b) give 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.
The certificate has 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).
In the case of REPUBLIC .V. BARISA WAYU MATUGUDA [2011] eKLR the court observed that:
“........any information stored in a computer.......which is then printed or copied....shall be treated just like documentary evidence and will be admissible as evidence without the production of the original. However section 106B also provides that such electronic evidence will only be admissible if the conditions laid out in that provision are satisfied.
The court went on that:
“This provision makes it abundantly clear that for electronic evidence to be deemed admissible it must be accompanied by a certificate in terms of section 106B(4). Such certificate must in terms of S.106B(4)(d) be signed by a person holding a responsible position with respect to the management of the device.... Without the required certificate this CD is inadmissible as evidence.”
In the joint written submissions by the respondents counsel they sought to draw a distinction between the ordinary documentary evidence and electronic evidence. They also indicated why the Evidence Act has put conditions on the admissibility of electronic evidence. This is what they said:
“But electronic evidence presents unique characteristics which necessitate careful treatment. First, while alterations on physical document are often immediately visible on its face, this is not the case with electronic material. An electronic document can be, and is often, modified in the process of collecting it as evidence. A common example occurs when a file or application is opened, or copied from one computer into another or into an external hard drive. Changes which are not often immediately visible occur. Second, compared with physical or other forms of exhibit evidence electronic evidence is relatively more difficult to detect and trace the signs of tampering. It can be changed or manipulated much more easily than paper or other forms of evidence without having any obvious trace of such alteration.
Third, computer equipment runs on an artificial intelligence which receives, interpreters and applies human commands. This artificial intelligence has been known to go awry. System crashes, viruses, and/or botnets often occur, compromising the integrity of the material captured, preserved or presented using a computer. Finally, the capturing, preserving and presenting of evidence in electronic form requires a measure of technical knowledge in the operation of the electronic equipment.”
I fully agree with counsel on the need to be careful when admitting electronic evidence.
In the instant case, objection was taken by the respondents to the desire by AUGUSTINE OGAE ADHOLA (PW7), called by the petitioner, to produce a CD as part of his evidence. He was the petitioner's chief campaign manager for Rarieda Constituency and testified that on 4/3/13 his agent for Ujwan'ga polling station called to say that he had caught an IEBC clerk who was just about to stuff marked ballot papers into ballot boxes. PW7 rushed to the scene and, in the presence of the IEBC coordinator, OCS of the area and the clerk, used his Nokia E7 cellphone to take video of the ballot papers which he found in the hands of the agent. After the elections he went to Nairobi and developed the video into CD. The CD was part of the exhibits he annexed to the affidavit he swore in support of the petition. He swore two affidavits on 8/4/13. One was witness affidavit and the other was “Affidavit Verifying Video Recording.”
Mr. P.J. Otieno, holding brief for Mr. Gumbo for the 1st and 2nd respondents, and Mr. Kopot for the 3rd respondent objected to the production of the CD on the following grounds:
a) that the particulars of the device used by the witness to develop the CD had not been disclosed as required by Section 106B;
b) that no certificate accompanying the CD had been produced; and
c) that the petitioner had not discharged the burden imposed on him by section 107 of the Evidence Act.
The response by Mr. Wakla Odhiambo for the petitioner was that the device used to capture the information was PW7's telephone handset which had a video recording facility; and that PW7 was the owner of the handset which he had control of. Regarding the certificate, his contention was that the affidavit verifying video recording should be taken to be the certificate.
The relevant portions of PW'7's verifying affidavit were as follows:
“8. THAT I also took video clips of the said marked ballot papers using my cell phone make Nokia E7 which has video recording facilities.
9. THAT the video recording shows images of marked ballot papers as aforesaid and also contains my voice while I was talking to the DCIO, Bondo Police station informing him of the said electoral offence.
10. THAT the said video also captures, images of the Petitioner's agent called ZACKARY ODERO who is the person holding the ballot papers in the video.
11. THAT I later downloaded the said video clip into CD format and played it back where I was able to ascertain that the recordings were a true and accurate record of the happenings of the said events of 4th March 2013 at Ujwang'a polling station aforesaid.”
Coming back to section 106B(4), even if it were to be taken that the verifying affidavit is a certificate, the petitioner has to show that it meets the conditions in subsection (2) and in (a) and (b) of subsection (4). From the evidence of PW7 it does appear that the video was first recorded and saved in internal memory of the phone. The phone must then have been connected to a computer using a micro USB data cable; the video file was accessed from a computer through the cable, the file was copied to the computer's hard disk; an empty CD was inserted into the computer's CD-writer RAM; and the video file was then written on the CD as a VCD using a CD writing software.
PW7 may be the owner of the phone handset, but said nothing about its working condition. There was no evidence regarding the computer used, its condition or reliability. There was no evidence to show that PW7 was the one who owned, operated and managed the computer. The particulars of the computer were not given. My considered view is that the verifying affidavit is not certificate in terms of subsection (4), and neither has PW7 satisfied the conditions of subsection (2).
In the case of R. V. ROBSON AND HARRIS [1972] 1 W.L.R. 651 the court was dealing with the admissibility of tape recording of alleged conversations between the defendants and prosecution witness. It was held that in considering the question of admissibility the court was required to satisfy itself that what the prosecution alleged to be original tapes were shown, prima facie, to be original by evidence which defined and described the provenance and the history of the recording upto the moment of production in court. I find that PW7 has not given this history. It cannot be ascertained that the computers used in the production of this CD were operating properly and therefore that its content is accurate.
The reason why the particulars of the computers used in the production of the CD had to be given (and such particulars would include the make and the serial numbers) is so that, if it becomes necessary, one can trace the devices for audit purposes.
In conclusion, I find that the CD sought to be produced is not admissible.
Dated, signed and delivered this 5th day of June 2013.
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