This case came up for pre-trial on 4.12.24 when prosecution informed court that they had the evidence of CCTV footage in a CD but they intended to serve defence with the same via email as burning the CD would tamper with the evidence . They sought the emails of the advocates on record to enable him supply the same .
The learned counsel for the 3rd accused person, Mr. Nyang’acha vehemently opposed this saying they were seeking to be served with compressed disc (CD ) of the CCTV footage which prosecution intended to rely on. Also that supplying the evidence on email would not be in compliance with section 106B the evidence act.
In reply Mr Koima indicated that they have a certificate of processing under Section 106 B of the Evidence Act.
Section 106B of the Evidence Act provides as follows:
“(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on 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 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 sections 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 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.
It outright the above section relates to admissibility of electronic evidence and emphasizes that electronic documents must be accompanied by a certificate line with conditions set under subsection 4 for them to be deemed admissible.
Article 50 (2) (j) provides that accused has a right “to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence”
The duty of prosecution is to supply copies of evidence that they intend to rely as it is. Section 106 B 9(1) refers to electronic evidence and the manner of storage . The court also takes judicial notice that email services have file size limits and CCTV Images or videos may exceed the limits necessitating the use of compression softwares which can degrade image quality and reduce evidential value . Email is also not a secure method of transmission if the email is not encrypted . We are not told the size of the footage and whether the email is secure . Prosecution submitted that burning of the CD they have may compromise the content of the CD and hence they intend to supply defence with the evidence by email . Burning of CD is one of the ways of storing or preservation of digital evidence in a physical format envisaged under section 106 B (1) of the evidence Act. There are 3 accused persons herein and this court expected prosecution to produce copies of the CD for each accused too. Though prosecution says that their evidence may be compromised by burning of the CD to make copies for defence , on the contrary it is the use of email which may tamper with the evidence and prejudice defence .
The CD that prosecution has in their possession can be burned using Write -once media (CD-R) which secures the data against any changes . I order that the Evidence be supplied to both counsel herein in a CD form within 7 days from today.
There was also the issue of whether counsel watching brief has a right to actively address the court . Mr Nyangacha objected to Mr Morara addressing court saying he must seek leave to address court . Mr Morara in response submitted that he was addressing court as a matter of right as he is properly on record. In the case of Waswa v Republic (Petition 23 of 2019) [2020] KESC 23 (KLR) (4 September 2020) (Judgment)the Supreme court held that the trial court must determine the manner and extent of participation of counsel watching brief upon an application being made for it’s consideration. Counsel watching brief ought to have sought leave to actively participate in the case. The submissions by counsel watching brief made on 4.12.24 are expunged from record. Hg on 26.2.25.
It is so ordered
Nyangacha for 3rd accused and holding for Mr Godia for Accused no 2 .
Mokaya for Accused no. 1 is absent
Mr Koima for the state
CA: Oigo
Koima : I will supply the evidence as ordered.
Ct : noted.
Nyangacha : the exhibit memo form but not the certificate.
Bonuke : watching brief for complainant.
Order : certificate be also served within 7 days from today.