1. By Originating Summons dated 30th September 2024, filed pursuant to Order 52 Rule 7 of the Civil Procedure Rules, the Applicant herein is seeking the following Orders:-
a. That the Respondent be ordered to forthwith honour the undertaking of 2nd November,2022 by paying to the Applicant the outstanding sum of Kenya shillings Three Hundred and Eighty Thousand (Kshs. 380, 000/-) and in default, an enforcement order be made compelling the Respondent to pay Kenya shillings Three Hundred and Eighty Thousand (Kshs. 380, 000/-) to the Applicant;
b. That the Respondent be ordered to pay interest on the sum of Kenya shillings Three Hundred and Eighty Thousand (Kshs. 380, 000/-) for the period of delay in honouring the undertaking at court rates;
c. That the Honourable Court be pleased to grant any further relief that it may deem fit to grant in the interest of justice;
d. That the Respondent to bear the costs of this Application.
2. The Summons is supported by the affidavit sworn on 30/9/2024 by the Applicant.
3. The grounds of the Application were that the Applicant had provided legal services to the Respondent's former clients: Margaret Magugu, Gicho Kinyanjui Magugu, and Miriam Susan Njambi Magugu. In response, the Respondent undertook to settle the Applicant's outstanding legal fees.
4. The Applicant averred that on 2/11/2022, the Respondent issued a formal undertaking to pay the sum of Kshs. 380,000/- within forty-five days. However, that period lapsed without payment, and despite multiple reminders, the Respondent failed to fulfill its obligation under the said undertaking.
5. The Respondent opposed the Application vide his replying affidavit sworn on 24/10/2024 where he denied the existence of any professional undertaking between himself and the Applicant, contrary to the claims made. He argued that the letter relied upon by the Applicant did not constitute a valid or enforceable professional undertaking for several reasons: it had not been delivered to or acknowledged by the Applicant; it was drafted during negotiations that were never finalized; there was no evidence the Applicant relied on its contents; and that the Applicant had actually rejected its terms. As a result of this rejection, the Respondent claimed to have paid the Applicant Kshs. 150,000/- on 2/11/2022, but this payment had allegedly been concealed from the court.
6. The Respondent further argued that the amount of Kshs.380,000/- being pursued arose from professional services rendered by the Applicant to mutual clients, and that the Applicant should instead pursue recovery through taxation of costs rather than enforcing an undertaking. He reiterated that the Kshs. 380,000 was disputed due to his prior payment of Kshs. 150,000 on the same date the purported undertaking was made.
7. It was further the Respondent’s position that even if the undertaking were found to be valid, which he denied, the Respondent asserted that it was conditional upon him receiving a payment from the mutual clients within 45 days, which never happened. Therefore, in his view, the undertaking never came into effect, and the Applicant ought to seek payment from the clients directly.
8. The Respondent concluded that the Originating Summons lacked merit and prayed for its dismissal with costs.
9. The Applicant swore a further affidavit on 27/2/2025 in response to the Respondent’s replying affidavit. He described the Respondent’s affidavit as being based on falsehoods and intended to mislead the court. He emphasized that the professional undertaking in question was clear and self-explanatory, and that the payment of Kshs. 150,000/- referred to by the Respondent was irrelevant to the subject of the undertaking.
10. The Applicant argued that the payment mentioned had no connection whatsoever to the professional undertaking and that the Respondent was misrepresenting facts. He further claimed that the Respondent had obtained title documents from him based on the very undertaking he was now discrediting.
11. He alleged that the Respondent’s actions demonstrated bad faith and that if the Kshs. 150,000 payments had been part of the undertaking, it would have been referenced in the document, yet it was not. This, in his view, reinforced the fact that the payment was unrelated.
12. The Applicant reiterated that he had relied on the undertaking by releasing the property title and had ceased pursuing fees from their mutual clients, trusting that the undertaking would be honored. He contended that the Respondent’s affidavit was an attempt to evade his professional obligations.
13. The Application was canvassed by way of written submissions. The Applicant filed its submissions dated 28th February 2025, whilst that of the Respondent is dated 25th May 2025.
Analysis and determination:-
14. I have duly considered the affidavits and submissions filed by the parties in support of their respective positions. The first issue for determination is whether there exists a valid professional undertaking between the parties.
15. The Applicant submitted that there exists a valid and enforceable professional undertaking between the parties and relied on the letter dated 2nd November 2022 produced in his supporting affidavit to buttress this.
16. On his part, the Respondent submitted that the letter dated 2nd November 2022 relied on by the Applicant does not qualify to be considered as a professional undertaking as there is no evidence to show that the letter was actually formally sent and received by the Applicant who in turn placed reliance on it by doing or refraining from doing any such act as provided therein.
17. The Respondent further submitted that the aforementioned letter was a printed screenshot of a photo taken using a mobile phone, but the same was not accompanied by a certificate of production of electronic evidence and should therefore be struck out.
18. A professional undertaking was described in Civil Appeal 165 of 2009 Waruhiu K’owade & Ng’ang’a Advocates v Mutune Investment Limited [2016] eKLR where the Court of Appeal stated:-
“Our answer is that a professional undertaking is an unequivocal promise made by a party to another either to do or to refrain from doing something or acting in a manner which may prejudice the right of the opposite party, to which liability may attach. See Equip Agencies Limited v Credit Bank Limited [2008] 2 EA 115 (HCK). Generally speaking, professional undertakings are given by advocates in order to make transactions easier, faster and more convenient. Where an advocate breaches a professional undertaking, the court has jurisdiction to order the enforcement of that undertaking.
In enforcing undertakings, the court is guided not by the considerations of contract, or of securing the legal rights of parties, but mainly by ensuring the honesty of advocates. See Muiruri v Credit Bank & Another (Civil Appeal No 263 of 1998) LLR No. 5676 (CAK).
In the words of this Court in Harit Sheth t/a Harit Sheth Advocate v K. Osmond Advocates [2011] eKLR (Civil Appeal No 276 of 2001),
“A professional undertaking is a bond by an advocate on the authority of his client. It is based on the relationship which exists between the advocate and his client. An advocate who gives such a professional undertaking takes a risk. The risk is his own and he should not be heard to complain that it is too burdensome and that someone else should shoulder the responsibility of recovering the debt from his own client. A professional undertaking is a bond by an advocate to conduct himself as expected of him by the court to which he is an officer. No matter how painful it might be to honour it, the advocate is obliged to honour it if only to protect his own reputation as an officer of the court.”
19. In this case, the Applicant claims that the Respondent sent a letter to him dated 2nd November 2022, which constitutes a professional undertaking. The said letter is produced in the Applicant’s supporting affidavit as ‘EXHIBIT “JMK-001”. It reads as follows:-
“RE: RELEASE OF THE ORIGINAL TITLE FOR HOUSE NO.4 ON L.R NO. MN/1/3904 NYALI MOMBASA
We refer to the above subject.
We hereby undertake to pay you the sum of Kenya shillings Three Hundred and Eighty Thousand (Kshs. 380,000/-) due and owed to you by Mrs. Margaret Magugu, Gicho Kinyanjui Magugu, Miriam Susan Njambi Magugu being your legal fees which sum shall be paid to us within forty-five (45) days from the date hereof.”
20. The letter bears the letterhead of the Respondent’s law firm and was signed by the Respondent.
21. A plain reading of the letter indicates that the Applicant made an unequivocal promise to the Respondent to pay the sum of Kshs.380, 000/- as their legal fees due to the release of the original title for the property identified as L.R. NO. MN/1/3904 NYALI MOMBASA. The legal fees were to be released within 45 days from the date of the letter. In my view, the letter constitutes a professional undertaking by the Respondent.
22. As stated in the Court of Appeal decision above, an advocate who gives such a professional undertaking takes a risk, the risk is his own and should not be transferred to someone else to shoulder the responsibility of recovering the debt from his own client.
23. In this case, the Respondent did not honour the terms of the undertaking by paying the said sum to the Applicant within 45 days. Although he claimed that he had settled the Applicant’s fees by paying Kshs.150,000, there is no evidence that this figure had anything to do with the subject matter. If that was the case, this would have been included in the professional undertaking that the Respondent sent to the Applicant. In any event, I agree with the position taken by the Court (Odunga J – as he then was) in the case of Christopher Musyoka Musau V. N. P. G. Warren & 7 Others [2012] KEHC 2309 (KLR) that an advocate cannot resile from an undertaking by qualifying the same on account of accounting disputes between the parties.
24. However, I note that the Respondent in his submissions asserted that the aforementioned letter was a printed screenshot of a photo taken using a mobile phone, but the same was not accompanied by a certificate of production of electronic evidence and should therefore be struck out. I note further that this issue was raised in his submissions; the Respondent did not plead on this issue in his replying affidavit.
25. Section 106B of the Evidence Act on the admissibility of electronic records states as follows:-
“(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the 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 of which direct evidence would be admissible.
(2) The conditions referred to 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 a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the 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, it was not such as to affect the electronic record or the accuracy of its contents;
(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 subsection (2) was regularly performed by a combination of computers operating over that period, they shall all be treated for the purposes of this section as constituting a single computer.
(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 of the matters to which the conditions mentioned in subsection (2) relate, and 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 purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.”
26. Pursuant to Section 106B of the Evidence Act, electronic records—including screenshots—are admissible in evidence provided specific conditions are satisfied. In particular, subsection (4) mandates that such evidence be accompanied by a certificate that: (a) identifies the electronic record and outlines the manner in which it was generated; (b) specifies details of the device used to produce the record; (c) affirms compliance with the conditions stipulated under Section 106B(2), including the regular use and proper functioning of the computer; and (d) is signed by an individual occupying a responsible position in relation to the operation of the device or the management of the relevant activities.
27. The Court of Appeal in the case of County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others [2015] eKLR held:-
“Section 106B of the Evidence Act states that electronic evidence of a computer recording or output is admissible in evidence as an original document if the conditions mentioned in this section are satisfied in relation to the information and computer. In our view, this is a mandatory requirement which was enacted for good reason. The court should not admit into evidence or rely on manipulated (and we all know this is possible) electronic evidence or record hence the stringent conditions in sub-section 106B (2) of that Act to vouchsafe the authenticity and integrity of the electronic record sought to be produced. The Evidence Act does not provide the format the certificate required under subsection 106B (2) thereof should take. The certificate can therefore take any form, including averments in the affidavit of the recorder.”
28. I concur with the above decision. Although the letter dated 2nd November 2022 appears to constitute a professional undertaking, it was submitted in the form of a printed screenshot taken from a mobile phone. However, it was not accompanied by a certificate of electronic evidence, as required under Section 106B of the Evidence Act.
29. It is imperative that litigants comply with the mandatory provisions of the law. In the absence of the requisite certificate, this Court cannot rely on the letter as presented by the Applicant. It would have been appropriate for the Applicant to file a certificate of electronic evidence to authenticate the document.
30. A similar conclusion was reached in Equity Traders Limited v John & 2 others; Bazalel (Plaintiff); Mukindia & another (Defendant) (Environment & Land Case E005 of 2024) [2024] KEELC 1668 (KLR) (Ruling), where the Court held:
“To the extent that no electronic certificate as envisaged under Section 106B of the Evidence Act, Chapter 80 Laws of Kenya, was ever filed and/or attached to the impugned photographic evidence, there is no gainsaying that the impugned photographic evidence were thus rendered invalid, illegal and hence devoid of any probative value.”
31. In light of the foregoing, the Application is hereby dismissed with costs. The Court is unable to enforce the alleged professional undertaking as the supporting evidence was submitted in contravention of the provisions of Section 106B of the Evidence Act.
32. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
19TH DAY OF JUNE, 2025
ADO MOSES
JUDGE
In the presence of:
Moses – C/A
Kamwathi..……………..for the Applicant
Ongeri.……………for the Respondent
a. That the Respondent be ordered to forthwith honour the undertaking of 2nd November,2022 by paying to the Applicant the outstanding sum of Kenya shillings Three Hundred and Eighty Thousand (Kshs. 380, 000/-) and in default, an enforcement order be made compelling the Respondent to pay Kenya shillings Three Hundred and Eighty Thousand (Kshs. 380, 000/-) to the Applicant;
b. That the Respondent be ordered to pay interest on the sum of Kenya shillings Three Hundred and Eighty Thousand (Kshs. 380, 000/-) for the period of delay in honouring the undertaking at court rates;
c. That the Honourable Court be pleased to grant any further relief that it may deem fit to grant in the interest of justice;
d. That the Respondent to bear the costs of this Application.
2. The Summons is supported by the affidavit sworn on 30/9/2024 by the Applicant.
3. The grounds of the Application were that the Applicant had provided legal services to the Respondent's former clients: Margaret Magugu, Gicho Kinyanjui Magugu, and Miriam Susan Njambi Magugu. In response, the Respondent undertook to settle the Applicant's outstanding legal fees.
4. The Applicant averred that on 2/11/2022, the Respondent issued a formal undertaking to pay the sum of Kshs. 380,000/- within forty-five days. However, that period lapsed without payment, and despite multiple reminders, the Respondent failed to fulfill its obligation under the said undertaking.
5. The Respondent opposed the Application vide his replying affidavit sworn on 24/10/2024 where he denied the existence of any professional undertaking between himself and the Applicant, contrary to the claims made. He argued that the letter relied upon by the Applicant did not constitute a valid or enforceable professional undertaking for several reasons: it had not been delivered to or acknowledged by the Applicant; it was drafted during negotiations that were never finalized; there was no evidence the Applicant relied on its contents; and that the Applicant had actually rejected its terms. As a result of this rejection, the Respondent claimed to have paid the Applicant Kshs. 150,000/- on 2/11/2022, but this payment had allegedly been concealed from the court.
6. The Respondent further argued that the amount of Kshs.380,000/- being pursued arose from professional services rendered by the Applicant to mutual clients, and that the Applicant should instead pursue recovery through taxation of costs rather than enforcing an undertaking. He reiterated that the Kshs. 380,000 was disputed due to his prior payment of Kshs. 150,000 on the same date the purported undertaking was made.
7. It was further the Respondent’s position that even if the undertaking were found to be valid, which he denied, the Respondent asserted that it was conditional upon him receiving a payment from the mutual clients within 45 days, which never happened. Therefore, in his view, the undertaking never came into effect, and the Applicant ought to seek payment from the clients directly.
8. The Respondent concluded that the Originating Summons lacked merit and prayed for its dismissal with costs.
9. The Applicant swore a further affidavit on 27/2/2025 in response to the Respondent’s replying affidavit. He described the Respondent’s affidavit as being based on falsehoods and intended to mislead the court. He emphasized that the professional undertaking in question was clear and self-explanatory, and that the payment of Kshs. 150,000/- referred to by the Respondent was irrelevant to the subject of the undertaking.
10. The Applicant argued that the payment mentioned had no connection whatsoever to the professional undertaking and that the Respondent was misrepresenting facts. He further claimed that the Respondent had obtained title documents from him based on the very undertaking he was now discrediting.
11. He alleged that the Respondent’s actions demonstrated bad faith and that if the Kshs. 150,000 payments had been part of the undertaking, it would have been referenced in the document, yet it was not. This, in his view, reinforced the fact that the payment was unrelated.
12. The Applicant reiterated that he had relied on the undertaking by releasing the property title and had ceased pursuing fees from their mutual clients, trusting that the undertaking would be honored. He contended that the Respondent’s affidavit was an attempt to evade his professional obligations.
13. The Application was canvassed by way of written submissions. The Applicant filed its submissions dated 28th February 2025, whilst that of the Respondent is dated 25th May 2025.
Analysis and determination:-
14. I have duly considered the affidavits and submissions filed by the parties in support of their respective positions. The first issue for determination is whether there exists a valid professional undertaking between the parties.
15. The Applicant submitted that there exists a valid and enforceable professional undertaking between the parties and relied on the letter dated 2nd November 2022 produced in his supporting affidavit to buttress this.
16. On his part, the Respondent submitted that the letter dated 2nd November 2022 relied on by the Applicant does not qualify to be considered as a professional undertaking as there is no evidence to show that the letter was actually formally sent and received by the Applicant who in turn placed reliance on it by doing or refraining from doing any such act as provided therein.
17. The Respondent further submitted that the aforementioned letter was a printed screenshot of a photo taken using a mobile phone, but the same was not accompanied by a certificate of production of electronic evidence and should therefore be struck out.
18. A professional undertaking was described in Civil Appeal 165 of 2009 Waruhiu K’owade & Ng’ang’a Advocates v Mutune Investment Limited [2016] eKLR where the Court of Appeal stated:-
“Our answer is that a professional undertaking is an unequivocal promise made by a party to another either to do or to refrain from doing something or acting in a manner which may prejudice the right of the opposite party, to which liability may attach. See Equip Agencies Limited v Credit Bank Limited [2008] 2 EA 115 (HCK). Generally speaking, professional undertakings are given by advocates in order to make transactions easier, faster and more convenient. Where an advocate breaches a professional undertaking, the court has jurisdiction to order the enforcement of that undertaking.
In enforcing undertakings, the court is guided not by the considerations of contract, or of securing the legal rights of parties, but mainly by ensuring the honesty of advocates. See Muiruri v Credit Bank & Another (Civil Appeal No 263 of 1998) LLR No. 5676 (CAK).
In the words of this Court in Harit Sheth t/a Harit Sheth Advocate v K. Osmond Advocates [2011] eKLR (Civil Appeal No 276 of 2001),
“A professional undertaking is a bond by an advocate on the authority of his client. It is based on the relationship which exists between the advocate and his client. An advocate who gives such a professional undertaking takes a risk. The risk is his own and he should not be heard to complain that it is too burdensome and that someone else should shoulder the responsibility of recovering the debt from his own client. A professional undertaking is a bond by an advocate to conduct himself as expected of him by the court to which he is an officer. No matter how painful it might be to honour it, the advocate is obliged to honour it if only to protect his own reputation as an officer of the court.”
19. In this case, the Applicant claims that the Respondent sent a letter to him dated 2nd November 2022, which constitutes a professional undertaking. The said letter is produced in the Applicant’s supporting affidavit as ‘EXHIBIT “JMK-001”. It reads as follows:-
“RE: RELEASE OF THE ORIGINAL TITLE FOR HOUSE NO.4 ON L.R NO. MN/1/3904 NYALI MOMBASA
We refer to the above subject.
We hereby undertake to pay you the sum of Kenya shillings Three Hundred and Eighty Thousand (Kshs. 380,000/-) due and owed to you by Mrs. Margaret Magugu, Gicho Kinyanjui Magugu, Miriam Susan Njambi Magugu being your legal fees which sum shall be paid to us within forty-five (45) days from the date hereof.”
20. The letter bears the letterhead of the Respondent’s law firm and was signed by the Respondent.
21. A plain reading of the letter indicates that the Applicant made an unequivocal promise to the Respondent to pay the sum of Kshs.380, 000/- as their legal fees due to the release of the original title for the property identified as L.R. NO. MN/1/3904 NYALI MOMBASA. The legal fees were to be released within 45 days from the date of the letter. In my view, the letter constitutes a professional undertaking by the Respondent.
22. As stated in the Court of Appeal decision above, an advocate who gives such a professional undertaking takes a risk, the risk is his own and should not be transferred to someone else to shoulder the responsibility of recovering the debt from his own client.
23. In this case, the Respondent did not honour the terms of the undertaking by paying the said sum to the Applicant within 45 days. Although he claimed that he had settled the Applicant’s fees by paying Kshs.150,000, there is no evidence that this figure had anything to do with the subject matter. If that was the case, this would have been included in the professional undertaking that the Respondent sent to the Applicant. In any event, I agree with the position taken by the Court (Odunga J – as he then was) in the case of Christopher Musyoka Musau V. N. P. G. Warren & 7 Others [2012] KEHC 2309 (KLR) that an advocate cannot resile from an undertaking by qualifying the same on account of accounting disputes between the parties.
24. However, I note that the Respondent in his submissions asserted that the aforementioned letter was a printed screenshot of a photo taken using a mobile phone, but the same was not accompanied by a certificate of production of electronic evidence and should therefore be struck out. I note further that this issue was raised in his submissions; the Respondent did not plead on this issue in his replying affidavit.
25. Section 106B of the Evidence Act on the admissibility of electronic records states as follows:-
“(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the 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 of which direct evidence would be admissible.
(2) The conditions referred to 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 a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the 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, it was not such as to affect the electronic record or the accuracy of its contents;
(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 subsection (2) was regularly performed by a combination of computers operating over that period, they shall all be treated for the purposes of this section as constituting a single computer.
(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 of the matters to which the conditions mentioned in subsection (2) relate, and 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 purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.”
26. Pursuant to Section 106B of the Evidence Act, electronic records—including screenshots—are admissible in evidence provided specific conditions are satisfied. In particular, subsection (4) mandates that such evidence be accompanied by a certificate that: (a) identifies the electronic record and outlines the manner in which it was generated; (b) specifies details of the device used to produce the record; (c) affirms compliance with the conditions stipulated under Section 106B(2), including the regular use and proper functioning of the computer; and (d) is signed by an individual occupying a responsible position in relation to the operation of the device or the management of the relevant activities.
27. The Court of Appeal in the case of County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others [2015] eKLR held:-
“Section 106B of the Evidence Act states that electronic evidence of a computer recording or output is admissible in evidence as an original document if the conditions mentioned in this section are satisfied in relation to the information and computer. In our view, this is a mandatory requirement which was enacted for good reason. The court should not admit into evidence or rely on manipulated (and we all know this is possible) electronic evidence or record hence the stringent conditions in sub-section 106B (2) of that Act to vouchsafe the authenticity and integrity of the electronic record sought to be produced. The Evidence Act does not provide the format the certificate required under subsection 106B (2) thereof should take. The certificate can therefore take any form, including averments in the affidavit of the recorder.”
28. I concur with the above decision. Although the letter dated 2nd November 2022 appears to constitute a professional undertaking, it was submitted in the form of a printed screenshot taken from a mobile phone. However, it was not accompanied by a certificate of electronic evidence, as required under Section 106B of the Evidence Act.
29. It is imperative that litigants comply with the mandatory provisions of the law. In the absence of the requisite certificate, this Court cannot rely on the letter as presented by the Applicant. It would have been appropriate for the Applicant to file a certificate of electronic evidence to authenticate the document.
30. A similar conclusion was reached in Equity Traders Limited v John & 2 others; Bazalel (Plaintiff); Mukindia & another (Defendant) (Environment & Land Case E005 of 2024) [2024] KEELC 1668 (KLR) (Ruling), where the Court held:
“To the extent that no electronic certificate as envisaged under Section 106B of the Evidence Act, Chapter 80 Laws of Kenya, was ever filed and/or attached to the impugned photographic evidence, there is no gainsaying that the impugned photographic evidence were thus rendered invalid, illegal and hence devoid of any probative value.”
31. In light of the foregoing, the Application is hereby dismissed with costs. The Court is unable to enforce the alleged professional undertaking as the supporting evidence was submitted in contravention of the provisions of Section 106B of the Evidence Act.
32. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
19TH DAY OF JUNE, 2025
ADO MOSES
JUDGE
In the presence of:
Moses – C/A
Kamwathi..……………..for the Applicant
Ongeri.……………for the Respondent