taken not from one show but a series of shows over a period of time which was a contravention
of the property rights of Bauhaus Limited.
7. In reply, counsel for the Plaintiffs submitted that under section 106 A and B of the Evidence Act
the only lawful obligation impressed on a party tendering evidence on ICT was to tender a
Certificate of the Person responsible for rendering that evidence on ICT form. I however note
that there is no such certificate attached to the DVDs the Plaintiffs seek to rely on or at least
none has been brought to the Court’s attention.
8. The admissibility of electronic records is provided for under Section 106 B of the Evidence Act
(Cap 80) Laws of Kenya 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.”
9. 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.”
10. 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).
11. 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