Background
1. This is an appeal from the decision of the lower court in which the court allowed a suit by the Respondent against the Appellant for the recovery of a sum of Kshs. 460,250 with interest at 24 per cent in respect of goods allegedly supplied but not paid for.
2. The Respondent’s case at the lower court was that the Appellant had ordered construction materials from them on two occasions and took delivery of the goods, but despite several reminders, failed to settle the outstanding balance. In support of his case, the Respondent produced invoices, delivery notes, and electronic messages, including WhatsApp communications.
3. Dissatisfied with the trial court’s findings, the Appellant filed the present appeal, arguing that the judgment was based on erroneous legal reasoning and inadmissible evidence. The Appellant asserted that the trial court erred in relying on electronic evidence that did not meet the threshold set under Section 78(A) and Section 106(B) of the Evidence Act.
4. Furthermore, the Appellant contended that the court failed to properly evaluate his testimony, which he claimed was not controverted by the Respondent. He also maintained that he had fully settled any amounts in respect of the goods he had ordered and that the claim by the Respondent was baseless.
5. The appeal was canvassed by way of written submissions, with the Appellant filing his submissions on 25th June 2024, and the Respondent filed theirs dated 23rd May 2024.
Appellant’s Submissions
6. The Appellant submitted that the trial court erred in law by admitting and relying on electronic evidence that was inadmissible under the Evidence Act, specifically WhatsApp messages that were neither authenticated nor accompanied by a certificate of authenticity as required under Section 78(A) and Section 106(B) of the Act. The Appellant, in support of this argument, relied on the Court of Appeal decision in the case of County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others [2015] eKLR.
7. The Appellant further contended that the trial court failed to properly evaluate and consider his testimony, which was neither challenged nor contradicted by the Respondent. According to the Appellant, he had settled the entire sum in respect of the goods he had ordered, and that the claim by the Respondent was baseless.
8. Additionally, the Appellant submitted that the trial court erred in its finding that there existed an agency relationship between him and an individual named Yusuf, who placed a second order for materials on allegedly on the Appellant’s behalf. Citing the decision of this Court (Sergon J) in the case of Mary Apondi Wahonya Versus Salesio Gerrard Njeru [2020] eKLR, the Appellant asserted that the Respondent, then a Plaintiff, failed to discharge this burden.
9. The Appellant denied any association with the said Yusuf and maintained that if any orders were placed by him, then such orders were made without the Appellant’s knowledge or authorization. He argued that the Respondent bore the burden of proving the existence of an agency relationship between the Appellant and the aforesaid individual (Yussuf), which it failed to do.
10. The Appellant therefore urged this Court to allow the appeal with costs in its favour and set aside the trial Court’s Judgment in its entirety.
Respondent’s Submissions
11. The Respondent, on its part, supported the trial Court’s Judgment and urged this Court to uphold the same. According to the Respondent, the trial court’s judgment was proper and based on sound legal principles.
12. On the issue of admissibility of evidence, the Respondent argued that the Appellant failed to object to the production of WhatsApp messages at trial, thereby waiving his right to challenge its admissibility on appeal. Further, the messages from the WhatsApp chats were corroborative rather than primary evidence, and their authenticity was not contested.
13. Secondly, the Respondent maintained that the Appellant did not provide any evidence to refute the Respondent’s claim that he received goods but failed to pay for them. That the delivery notes produced in court, coupled with the Appellant’s own WhatsApp communication acknowledging the transaction, sufficiently established on a balance of probabilities, the Respondent’s claim against the Appellant.
14. Finally, Respondent asserted that the trial court properly exercised its discretion in evaluating the evidence, and therefore, there is no legal basis for appellate interference. According to the Respondent, the instant appeal is an afterthought and an attempt by the Appellant to avoid fulfilling a clear contractual obligation.
15. The respondent therefore urged this Court to dismiss the appeal with costs in its favour.
Analysis and Determination
16. I have carefully analyzed the parties’ submissions in support of their respective positions. The role of this court, sitting as a first appellate court, is well established in law. In Selle & Another v. Associated Motor Boat Co. Ltd & Others [1968] EA 123, the Court stated:-
“An appeal to this Court … is by way of a retrial, and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this Court must reconsider the evidence, evaluate it itself, and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”
17. From the submissions by counsel for the parties, I hold that two issues commend themselves to this Court as the issues for determination, thus: -
i. Whether the trial court erred in admitting the WhatsApp messages in evidence.
ii. Whether the trial court erred in failing to consider the Appellant’s testimony/evidence
Admissibility of Electronic Evidence
18. The first issue raised in this appeal concerns the admission and reliance on electronic evidence, particularly WhatsApp messages, without compliance with Section 78(A) and Section 106(B) of the Evidence Act (Cap 80, Laws of Kenya). These provisions govern the admissibility of electronic records, imposing strict requirements to ensure authenticity and reliability before such evidence can be considered by a court.
19. Section 78A of the Evidence Act provides that: -
“78A. Admissibility of electronic and digital evidence.
(1) In any legal proceedings, electronic message and digital material shall be admissible as evidence.
(2) The Court shall not deny admissibility of evidence under subsection (1) only on the ground that it is not in the original form.
(3) In the weight, if any, to be attached to electronic and digital evidence, under subsection (1) regard shall be had to –
(a) The reliability of the manner in which the electronic and digital evidence was generated, stored and communicated;
(b) The reliability of the manner in which the electronic and digital evidence was maintained;
(c) The manner in which the originator of the electronic and digital evidence was identified; and
(d) Any other relevant factor.
20. Further, section 106 B provides as follows: -
“106 B. Admissibility of electronic records
(1) Notwithstanding /anything contained in this Act, any information contained in an electronic record which is printed on paper, stored, record or copied or optical or electro-magnetic media produced by a computer (herein referred to as “computer out”) 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 any fact stated therein where direct evidence would be admissible …………………………”
21. Section 106(B)(1) explicitly provides:-
“Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on paper, stored, recorded, or copied in optical or electronic form 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…”
22. Further, Section 106(B)(4) of the Act provides for a certificate of computer printout in the following terms: -
“(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 subsection (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 subsection it shall be sufficient for a matter to be stated to be the best of the knowledge of the person stating it.”
23. From the above, it is evident that the conditions set out in Section 106(B) must be satisfied before a court can admit electronic evidence. Failure to produce a certificate of authenticity is fatal to the admissibility of such evidence. This provision is mandatory, as was held in Republic v. Barisa Wayu Mataguda [2011] eKLR, where the court categorically stated:-
‘’ This provision makes it abundantly clear that for electronic evidence to be deemed admissible, it must be accompanied by a certificate in terms of S. 106B(4)… attempt to produce the CD without such a certificate claiming that he watched the CCTV footage with PW4 will not suffice. Without the required certificate this CD is inadmissible as is inadmissible as evidence and I do so rule.’’
24. As pertains to whether or not the electronic certificate ought to take a particular format, it is instructive to take cognizance of and reiterate the holding of the Court of Appeal in the case of County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others [2015] eKLR where the court held thus:-
‘’ 66. 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.”
67. 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…’’ [emphasis added].
25. In the present case, the Respondent sought to rely on screenshots of WhatsApp messages to demonstrate communications between the parties. However, there is no evidence that a certificate was produced as required under Section 106B of the Evidence Act. Without such a certificate, the trial court had no legal basis to admit the electronic evidence, let alone rely on it in reaching its decision. The failure to adhere to these mandatory provisions is not a mere procedural lapse but a fundamental legal flaw on the part of the trial court.
26. The Court of Appeal in John Lokitare Lodinyo v I.E.B.C and 2 Others [2018] eKLR addressed the question of admissibility of electronic records under S 106B and stated that;-
“54: Essentially, the sections provide that electronic evidence which is printed out shall be treated like documentary evidence and will be admissible without production of the computer used to generate the information. The appellant claimed that his technical team downloaded the forms and had them printed. He admitted that the forms were from the IEBC public portal. Ordinarily, this would have meant accessing the IEBC portal, which one could only do if they had access to the internet, proceeding to log onto the IEBC portal page, clicking on the Forms 35A uploaded on Kacheliba Constituency, downloading the Forms 35A onto the computer’s hard disk and finally printing the documents via printed connected to the computer.
55. It is at this juncture that the provisions of Section 106B of the Evidence Act come into play as the section sets out the conditions to be fulfilled to have this evidence admissible since evidence shall only be admissible if a certificate is presented identifying the electronic record and a description of the manner in which the electronic evidence was produced, together with any particulars of any device involved in the production of that document, which the appellant did not..”
27. This court, therefore, finds that the trial magistrate erred in law by admitting and relying on inadmissible electronic evidence in clear contravention of Section 106(4)B of the Evidence Act.
28. The WhatsApp screenshot messages in the instant case ought to have been produced together with a certificate of electronic evidence to confirm their authenticity and integrity before admission.
Failure to Consider the Appellant’s Testimony
29. The second issue raised in this appeal by the Appellant is that the trial court erred in failing to consider the Appellant’s testimony, which was not challenged by the Respondent. The Appellant maintained that he had fully paid for the goods he had personally ordered and that the claim against him was unfounded.
30. Under Sections 107 – 109 of the Evidence Act, the burden is on the person who alleges. The said sections state that: -
‘’ 107. Burden of proof.
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
108. Incidence of burden.
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
109. Proof of particular fact.
The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
31. In the present case, while the Appellant concedes that he ordered some building materials from the Respondent on 15th April 2018 and paid for those goods in cash, the Appellant disputes that he made a second order, the order of 26th April 2018, as alleged by the Respondent. According to the Appellant, the said Yussuf, whom the Respondent alleged to have collected the goods in respect of the second order, was not known to him and was certainly not doing so on his behalf.
32. Conversely, the Respondent maintained that the said order of 26th April 2028 (the second order) was made by the Appellant through a telephone call, and that the goods were delivered to the Appellant’s residence at Bondo by a Mr. Zakayo and the said Yussuf, who were alleged to be the Appellant’s agent.
33. Having carefully considered the divergent position of the parties on this issue, the Court is of the view that the Respondent needed to prove by way of cogent evidence that the said Mr. Yussuf was indeed an agent of the Appellant. In this case, the only claim by the Respondent is that when the Appellant made the initial order/purchase on 15th April 2018, the Appellant was then accompanied by the said Mr. Yussuf, a fact which the Appellant denied.
34. It is the position of this Court that the question whether or not the said Yusuf was an agent of the Appellant is central to the resolution of this dispute. The burden of proving this fact lay with the Plaintiff. Apart from the general assertion that Mr. Yussuf accompanied the Appellant to the shop on 15th April 2018 when the initial undisputed order was made, there was no material by way of evidence that the said Yusuf was indeed an agent of the Appellant and acted in that regard when he allegedly placed the order of 26th April 2028.
35. The only attempt by the Respondent to prove the agency relationship between the Appellant and the said Mr. Yusuf was through the production of a screenshot of WhatsApp messages of 26th February 2020, which as indicated above, the Court has already been found by the Court to have been produced in a manner not to be supported by Section 106B of the Evidence Act, and therefore not admissible.
36. Agency is a legal relationship where one party, the agent, is authorized to act on behalf of another, the principal, in a manner that binds the principal. The Black’s Law Dictionary, 10th Edition defines agency as:-
“Created by operation of law when a person’s actions have led a third party reasonably to believe that another actor was actually another person’s agent.”
37. In the present case, the Respondent having failed to produce any cogent and admissible evidence to prove that Yusuf had express or implied authority to receive goods on behalf of the Appellant, then the trial court erred in its findings that the actions of the said Mr. Yusuf bound the Appellant.
38. In any event, the mere fact that Yusuf received goods does not automatically mean he was an agent of the Appellant. If courts were to assume agency merely because a third party transacted with someone’s property, it would open the door to unauthorized dealings, a scenario that neither law nor logic supports.
39. The upshot is that the appeal is found to be merited. Accordingly, the Court makes the following determinations: -
i. The appeal is hereby allowed on the grounds that the trial court erred in admitting inadmissible electronic evidence and in finding that an agency relationship existed between the Appellant and the alleged recipients of the goods.
ii. The trial court’s Judgment of 17th November 2022, and its consequential orders are hereby set aside.
40. On costs, the successful party ordinarily deserves costs. However, in the circumstances of this case, the Court is of the view that each party to bear their own costs. See the case of Ogembo v Yongo [2024] KEHC 15763 (KLR), where the learned Judge (Aburili J) reached a similar conclusion on costs, where no certificate of electronic printout was availed.
41. It is so ordered
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT
THIS 7TH DAY OF AUGUST 2025
ADO MOSES
In the presence of:
David Ngoge ……….C/A
1. This is an appeal from the decision of the lower court in which the court allowed a suit by the Respondent against the Appellant for the recovery of a sum of Kshs. 460,250 with interest at 24 per cent in respect of goods allegedly supplied but not paid for.
2. The Respondent’s case at the lower court was that the Appellant had ordered construction materials from them on two occasions and took delivery of the goods, but despite several reminders, failed to settle the outstanding balance. In support of his case, the Respondent produced invoices, delivery notes, and electronic messages, including WhatsApp communications.
3. Dissatisfied with the trial court’s findings, the Appellant filed the present appeal, arguing that the judgment was based on erroneous legal reasoning and inadmissible evidence. The Appellant asserted that the trial court erred in relying on electronic evidence that did not meet the threshold set under Section 78(A) and Section 106(B) of the Evidence Act.
4. Furthermore, the Appellant contended that the court failed to properly evaluate his testimony, which he claimed was not controverted by the Respondent. He also maintained that he had fully settled any amounts in respect of the goods he had ordered and that the claim by the Respondent was baseless.
5. The appeal was canvassed by way of written submissions, with the Appellant filing his submissions on 25th June 2024, and the Respondent filed theirs dated 23rd May 2024.
Appellant’s Submissions
6. The Appellant submitted that the trial court erred in law by admitting and relying on electronic evidence that was inadmissible under the Evidence Act, specifically WhatsApp messages that were neither authenticated nor accompanied by a certificate of authenticity as required under Section 78(A) and Section 106(B) of the Act. The Appellant, in support of this argument, relied on the Court of Appeal decision in the case of County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others [2015] eKLR.
7. The Appellant further contended that the trial court failed to properly evaluate and consider his testimony, which was neither challenged nor contradicted by the Respondent. According to the Appellant, he had settled the entire sum in respect of the goods he had ordered, and that the claim by the Respondent was baseless.
8. Additionally, the Appellant submitted that the trial court erred in its finding that there existed an agency relationship between him and an individual named Yusuf, who placed a second order for materials on allegedly on the Appellant’s behalf. Citing the decision of this Court (Sergon J) in the case of Mary Apondi Wahonya Versus Salesio Gerrard Njeru [2020] eKLR, the Appellant asserted that the Respondent, then a Plaintiff, failed to discharge this burden.
9. The Appellant denied any association with the said Yusuf and maintained that if any orders were placed by him, then such orders were made without the Appellant’s knowledge or authorization. He argued that the Respondent bore the burden of proving the existence of an agency relationship between the Appellant and the aforesaid individual (Yussuf), which it failed to do.
10. The Appellant therefore urged this Court to allow the appeal with costs in its favour and set aside the trial Court’s Judgment in its entirety.
Respondent’s Submissions
11. The Respondent, on its part, supported the trial Court’s Judgment and urged this Court to uphold the same. According to the Respondent, the trial court’s judgment was proper and based on sound legal principles.
12. On the issue of admissibility of evidence, the Respondent argued that the Appellant failed to object to the production of WhatsApp messages at trial, thereby waiving his right to challenge its admissibility on appeal. Further, the messages from the WhatsApp chats were corroborative rather than primary evidence, and their authenticity was not contested.
13. Secondly, the Respondent maintained that the Appellant did not provide any evidence to refute the Respondent’s claim that he received goods but failed to pay for them. That the delivery notes produced in court, coupled with the Appellant’s own WhatsApp communication acknowledging the transaction, sufficiently established on a balance of probabilities, the Respondent’s claim against the Appellant.
14. Finally, Respondent asserted that the trial court properly exercised its discretion in evaluating the evidence, and therefore, there is no legal basis for appellate interference. According to the Respondent, the instant appeal is an afterthought and an attempt by the Appellant to avoid fulfilling a clear contractual obligation.
15. The respondent therefore urged this Court to dismiss the appeal with costs in its favour.
Analysis and Determination
16. I have carefully analyzed the parties’ submissions in support of their respective positions. The role of this court, sitting as a first appellate court, is well established in law. In Selle & Another v. Associated Motor Boat Co. Ltd & Others [1968] EA 123, the Court stated:-
“An appeal to this Court … is by way of a retrial, and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this Court must reconsider the evidence, evaluate it itself, and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”
17. From the submissions by counsel for the parties, I hold that two issues commend themselves to this Court as the issues for determination, thus: -
i. Whether the trial court erred in admitting the WhatsApp messages in evidence.
ii. Whether the trial court erred in failing to consider the Appellant’s testimony/evidence
Admissibility of Electronic Evidence
18. The first issue raised in this appeal concerns the admission and reliance on electronic evidence, particularly WhatsApp messages, without compliance with Section 78(A) and Section 106(B) of the Evidence Act (Cap 80, Laws of Kenya). These provisions govern the admissibility of electronic records, imposing strict requirements to ensure authenticity and reliability before such evidence can be considered by a court.
19. Section 78A of the Evidence Act provides that: -
“78A. Admissibility of electronic and digital evidence.
(1) In any legal proceedings, electronic message and digital material shall be admissible as evidence.
(2) The Court shall not deny admissibility of evidence under subsection (1) only on the ground that it is not in the original form.
(3) In the weight, if any, to be attached to electronic and digital evidence, under subsection (1) regard shall be had to –
(a) The reliability of the manner in which the electronic and digital evidence was generated, stored and communicated;
(b) The reliability of the manner in which the electronic and digital evidence was maintained;
(c) The manner in which the originator of the electronic and digital evidence was identified; and
(d) Any other relevant factor.
20. Further, section 106 B provides as follows: -
“106 B. Admissibility of electronic records
(1) Notwithstanding /anything contained in this Act, any information contained in an electronic record which is printed on paper, stored, record or copied or optical or electro-magnetic media produced by a computer (herein referred to as “computer out”) 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 any fact stated therein where direct evidence would be admissible …………………………”
21. Section 106(B)(1) explicitly provides:-
“Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on paper, stored, recorded, or copied in optical or electronic form 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…”
22. Further, Section 106(B)(4) of the Act provides for a certificate of computer printout in the following terms: -
“(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 subsection (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 subsection it shall be sufficient for a matter to be stated to be the best of the knowledge of the person stating it.”
23. From the above, it is evident that the conditions set out in Section 106(B) must be satisfied before a court can admit electronic evidence. Failure to produce a certificate of authenticity is fatal to the admissibility of such evidence. This provision is mandatory, as was held in Republic v. Barisa Wayu Mataguda [2011] eKLR, where the court categorically stated:-
‘’ This provision makes it abundantly clear that for electronic evidence to be deemed admissible, it must be accompanied by a certificate in terms of S. 106B(4)… attempt to produce the CD without such a certificate claiming that he watched the CCTV footage with PW4 will not suffice. Without the required certificate this CD is inadmissible as is inadmissible as evidence and I do so rule.’’
24. As pertains to whether or not the electronic certificate ought to take a particular format, it is instructive to take cognizance of and reiterate the holding of the Court of Appeal in the case of County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others [2015] eKLR where the court held thus:-
‘’ 66. 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.”
67. 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…’’ [emphasis added].
25. In the present case, the Respondent sought to rely on screenshots of WhatsApp messages to demonstrate communications between the parties. However, there is no evidence that a certificate was produced as required under Section 106B of the Evidence Act. Without such a certificate, the trial court had no legal basis to admit the electronic evidence, let alone rely on it in reaching its decision. The failure to adhere to these mandatory provisions is not a mere procedural lapse but a fundamental legal flaw on the part of the trial court.
26. The Court of Appeal in John Lokitare Lodinyo v I.E.B.C and 2 Others [2018] eKLR addressed the question of admissibility of electronic records under S 106B and stated that;-
“54: Essentially, the sections provide that electronic evidence which is printed out shall be treated like documentary evidence and will be admissible without production of the computer used to generate the information. The appellant claimed that his technical team downloaded the forms and had them printed. He admitted that the forms were from the IEBC public portal. Ordinarily, this would have meant accessing the IEBC portal, which one could only do if they had access to the internet, proceeding to log onto the IEBC portal page, clicking on the Forms 35A uploaded on Kacheliba Constituency, downloading the Forms 35A onto the computer’s hard disk and finally printing the documents via printed connected to the computer.
55. It is at this juncture that the provisions of Section 106B of the Evidence Act come into play as the section sets out the conditions to be fulfilled to have this evidence admissible since evidence shall only be admissible if a certificate is presented identifying the electronic record and a description of the manner in which the electronic evidence was produced, together with any particulars of any device involved in the production of that document, which the appellant did not..”
27. This court, therefore, finds that the trial magistrate erred in law by admitting and relying on inadmissible electronic evidence in clear contravention of Section 106(4)B of the Evidence Act.
28. The WhatsApp screenshot messages in the instant case ought to have been produced together with a certificate of electronic evidence to confirm their authenticity and integrity before admission.
Failure to Consider the Appellant’s Testimony
29. The second issue raised in this appeal by the Appellant is that the trial court erred in failing to consider the Appellant’s testimony, which was not challenged by the Respondent. The Appellant maintained that he had fully paid for the goods he had personally ordered and that the claim against him was unfounded.
30. Under Sections 107 – 109 of the Evidence Act, the burden is on the person who alleges. The said sections state that: -
‘’ 107. Burden of proof.
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
108. Incidence of burden.
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
109. Proof of particular fact.
The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
31. In the present case, while the Appellant concedes that he ordered some building materials from the Respondent on 15th April 2018 and paid for those goods in cash, the Appellant disputes that he made a second order, the order of 26th April 2018, as alleged by the Respondent. According to the Appellant, the said Yussuf, whom the Respondent alleged to have collected the goods in respect of the second order, was not known to him and was certainly not doing so on his behalf.
32. Conversely, the Respondent maintained that the said order of 26th April 2028 (the second order) was made by the Appellant through a telephone call, and that the goods were delivered to the Appellant’s residence at Bondo by a Mr. Zakayo and the said Yussuf, who were alleged to be the Appellant’s agent.
33. Having carefully considered the divergent position of the parties on this issue, the Court is of the view that the Respondent needed to prove by way of cogent evidence that the said Mr. Yussuf was indeed an agent of the Appellant. In this case, the only claim by the Respondent is that when the Appellant made the initial order/purchase on 15th April 2018, the Appellant was then accompanied by the said Mr. Yussuf, a fact which the Appellant denied.
34. It is the position of this Court that the question whether or not the said Yusuf was an agent of the Appellant is central to the resolution of this dispute. The burden of proving this fact lay with the Plaintiff. Apart from the general assertion that Mr. Yussuf accompanied the Appellant to the shop on 15th April 2018 when the initial undisputed order was made, there was no material by way of evidence that the said Yusuf was indeed an agent of the Appellant and acted in that regard when he allegedly placed the order of 26th April 2028.
35. The only attempt by the Respondent to prove the agency relationship between the Appellant and the said Mr. Yusuf was through the production of a screenshot of WhatsApp messages of 26th February 2020, which as indicated above, the Court has already been found by the Court to have been produced in a manner not to be supported by Section 106B of the Evidence Act, and therefore not admissible.
36. Agency is a legal relationship where one party, the agent, is authorized to act on behalf of another, the principal, in a manner that binds the principal. The Black’s Law Dictionary, 10th Edition defines agency as:-
“Created by operation of law when a person’s actions have led a third party reasonably to believe that another actor was actually another person’s agent.”
37. In the present case, the Respondent having failed to produce any cogent and admissible evidence to prove that Yusuf had express or implied authority to receive goods on behalf of the Appellant, then the trial court erred in its findings that the actions of the said Mr. Yusuf bound the Appellant.
38. In any event, the mere fact that Yusuf received goods does not automatically mean he was an agent of the Appellant. If courts were to assume agency merely because a third party transacted with someone’s property, it would open the door to unauthorized dealings, a scenario that neither law nor logic supports.
39. The upshot is that the appeal is found to be merited. Accordingly, the Court makes the following determinations: -
i. The appeal is hereby allowed on the grounds that the trial court erred in admitting inadmissible electronic evidence and in finding that an agency relationship existed between the Appellant and the alleged recipients of the goods.
ii. The trial court’s Judgment of 17th November 2022, and its consequential orders are hereby set aside.
40. On costs, the successful party ordinarily deserves costs. However, in the circumstances of this case, the Court is of the view that each party to bear their own costs. See the case of Ogembo v Yongo [2024] KEHC 15763 (KLR), where the learned Judge (Aburili J) reached a similar conclusion on costs, where no certificate of electronic printout was availed.
41. It is so ordered
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT
THIS 7TH DAY OF AUGUST 2025
ADO MOSES
In the presence of:
David Ngoge ……….C/A