GROUP 14 (GROUP N)

EVIDENCE LAW 1 ASSIGNMENT

GROUP MEMBERS;
1.Wayne Magori - G34/3494/2022
2.Peterson Lesaina - G34/3368/2022
3.Jacob Kiarie - G34/3493/2022
4.Simon Kinyanjui - G34 /3423/2022
5.Newseen Nyongesa - G34/3383/2022
6.Chai Shadrack -G34/3305/2022
7.Winnierose Karithi - G34/3308/2022
8.Kioko Jean Zip Mbithe – G34/3307/2022
9.Thiery Henry Junior - G34/3337/2022
10.Grace Karanja - G34/3306/2022
11.Yvonne Jebichii - G34/3487/2022
12.Beatrice Watetu - G34/3310/2022
What law reform would you suggest in the provisions of the Evidence Act in light of
the Constitution of Kenya, 2010.
In light of the 2010 Kenyan Constitution , several law reforms could be made to the
Kenyan Evidence Act. These reforms aim to align the legal framework with the
constitutional provisions. Some of the suggested reforms include:
1.Reforms on the burden of proof.
The Evidence Act in Kenya may be reformed in light of the 2010 Constitution to ensure
its compatibility with the constitutional provisions. One potential area of reform is the
constitutionality of penal provisions that shift the burden of proof from the prosecution
to the accused person. This reform is relevant because the 2010 Constitution of Kenya
requires that the courts deliver justice to all Kenyans regardless of economic or social
status and without delay or undue influence. Shifting the burden of proof from the
prosecution to the accused person may not align with these constitutional provisions, as
it could potentially disadvantage individuals with limited resources or access to legal
representation.
The 2010 Constitution of Kenya also requires that the courts consider the unique
circumstances of each case and the mitigation of the accused person when determining
sentences. Shifting the burden of proof to the accused person may not allow for a fair
and proportionate sentence, as it could potentially lead to harsher penalties for
individuals who may not have the means to prove their innocence.

In conclusion, the constitutionality of penal provisions that shift the burden of proof
from the prosecution to the accused person is a potential area of reform for the Evidence
Act in Kenya, as it may not align with the constitutional provisions that require justice
to be delivered fairly and proportionately to all Kenyans, regardless of their economic
or social status.
2. Reform on expert Evidence
There should be clear guidelines on the admissibility of expert evidence and testimonies
in the courts. The courts should consider whether the present method of taking experts
evidence through question and answer is necessarily the best method of doing so.
They should ensure that this experts whose testimonies and evidences will be presented
to court meet certain qualifications so as to enhance the reliability of the evidence
provided in court. This is because majorly expert evidence is mainly technical and
complex and the judges may lack experience on accessing reliability of such evidence.
They should also make guidelines (legal tests)on the presentation of this evidence to
ensure that it’s reliable, relevant and fair. In absence of a clear legal test to ensure the
reliability of the evidence the judges do not always cross examine the expert evidence
to check whether there are flaws to their reasoning and data.
3. Reforms on witness protection.
Witness protection is a crucial aspect that can be addressed in evidence law reforms.
Witness protection safeguards individuals who are willing to testify or provide
evidence in legal proceedings. Without protection, witnesses may be reluctant or
fearful, leading to a reluctance to come forward and share important information. When
individuals see that witnesses are protected and can testify without fear, they are more
likely to trust that the legal process is fair and capable of delivering justice.Here are
some considerations for integrating witness protection measures into the Evidence Act:
a) Confidentiality Orders: Allow for the issuance of confidentiality orders to protect
the identity and information of witnesses, especially in cases where revealing
their identity may pose a risk to their safety. minimizing the risk of witness
intimidation or retaliation.
 b) Anonymous Testimony: Introduce provisions for witnesses to provide testimony
anonymously, shielding them from potential harm while still ensuring their
evidence is presented and evaluated.
c) Secure Testimony Facilities: Establish secure locations for witnesses to testify,
reducing the likelihood of encounters with the accused or other potentially
threatening parties.
d) Relocation Assistance: Provide for the relocation of witnesses to ensure their
safety, including financial support and logistical assistance in moving to a
different area.
e) Restricted Access to Witness Lists: Limit access to witness lists to only those who
need the information for legal purposes, preventing the unauthorized
dissemination of potentially sensitive details.
f) Fast-Tracking Trials: Implement procedures to expedite trials involving
protected witnesses, minimizing the time they are exposed to potential threats.
g) In-camera Proceedings: Allow for in-camera proceedings where certain parts of
the trial are conducted in private to protect the identity and testimony of the
witness.
h) Psychological Support: Include provisions for psychological support and
counseling services for witnesses who may experience emotional trauma or
stress due to their involvement in legal proceedings.
i) Penalties for Intimidation: Strengthen penalties for witness intimidation, creating
a deterrent to those who may attempt to interfere with the protection measures.
4. Reforms on cross-examination of accused person.
Section 156 of the Evidence Act on cross-examination of accused person states that
person charged with an offence and called as a witness for the defence may be asked
any question in cross-examination notwithstanding that the answer may tend to
incriminate him as to the offence charged.This provision is in contravention with article
50(I) of the Constitution which states that a person has the right to refuse to give self-
incriminating evidence.
The section should be repealed and give a provision for what happens in case the
answer given by the witness incriminates him or her.This is because the section focuses
on an accused being called as a witness for defence and therefore the answer being
given turning out to incriminate him or her is prejudicial.It may be repealed so that any
answer given by the witness which is incriminating does not form part of the
judgement and any re-examination on the incriminating answer should be objected by
the judge to protect the accused person.
5.Law reform on the compellability of the witness.
Section 128 of the Evidence Act provides that,
 “A witness shall not be excused from answering any question as to any matter relevant
to the matter in issue in any suit or in any civil or criminal proceeding upon the ground
that the answer to such question will incriminate, or may tend directly or indirectly to
incriminate such witness, or that it will expose or tend directly or indirectly to expose
such witness to a penalty of forfeit of any kind…”
This section of the evidence act is inimical to Article 50(2)(I) and (l) of the constitution of
Kenya which states that,
“Every accused person has the right to a fair trial which includes the right to
(i) remain silent and not to testify during the proceedings
(l) to refuse to give any self-incriminating evidence.
In a case where the accused happens to also be a witness in their case then if they are
competent, they are also compellable.
This should be reformed to ensure that no accused person should be compellable to be
a witness in their case to protect their right to a fair trial of not giving incriminating
evidence as per the constitution of Kenya.
6. 1Reforms on the admissibility of Electronic Evidence
The creation, storing, and transmission of information has been completely transformed
by the quick development of technology. Legal reform is desperately needed in order
for Kenya to keep up the values of justice and fairness entrenched in the 2010 Kenyan
Constitution and to keep up with the rapidly changing digital landscape. The Evidence
Act's provisions recognising electronic evidence are one important revision that needs
to be taken into account.
The recognition of electronic evidence in the Evidence Act aligns with various
constitutional provisions including:
1. Right to Fair Hearing as provided for in Article 50(1): Acknowledging electronic
evidence permits the entry of pertinent electronic evidence that can help
establish the truth and bring about justice. It guarantees that parties can submit
and contest such evidence, strengthening their capacity to provide a strong
defence or prosecution.
2. Access to justice as provided for in Article 48: Acknowledging electronic
evidence enables parties to use all accessible evidence, regardless of format,
hence facilitating access to justice. Ensuring the admissibility and consideration

1 Constitution of Kenya 2010

 of pertinent electronic evidence in court processes is crucial in fostering a just
and impartial justice system.
3. Right to Privacy as provided for in Article 31: To protect privacy, the acceptance
of electronic evidence should be weighed against protections. To ensure
adherence to constitutional privacy standards, the Evidence Act revision should
include guidelines for the gathering, storing, and use of electronic evidence.

Despite acknowledging the significance of including electronic evidence in the Evidence

Act, there are a number of objections and issues that must be resolved:
1. Contradictory provisions;Sections 106B and 78A
In Kenya, the first notable and substantive change to the law on e-evidence was the
introduction of section 106B. It introduced the use of a certificate accompanying e-
evidence as an authentication mechanism. However, section 78A, the result of a
subsequent amendment, provides, generally, that e-evidence is admissible (without
stipulating that a certificate is a requirement).

Section 106B was the dominant provision relating to admission of e-evidence until an
amendment in 2014 introducing section 78A. The amendment in question did not repeal
section 106B despite it providing for admission of e-evidence in a manner contrary to
the provisions of section 106B.

Section 106B is problematic for a number of reasons. A major issue identified is the lack
of 2certainty as to whether the requirement of a certificate is mandatory. Section 106B(4)
can be distilled into the following relevant statement: ‘In any proceedings where it is
desired to submit e-evidence, a certificate… 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’. This is hardly a clear
directive that e-evidence is not admissible in the absence of a certificate.
The wording of the provision essentially provides that the courts may make use of a
certificate as a mechanism to authenticate electronic records. It goes no further than
that, and certainly does not state that certificates are prerequisites, as has been held in
some judicial cases

2 Isaac Rutenberg, Stephen Kiptinness and Abdulmalik Sugow, Admission of Electronic Evidence: Contradictions in the Kenyan Evidence Act, (2021), DEESLR, 18.
 2. Conflicting jurisprudence
The mandatory nature of section 106B was not clear before the enactment of section
78A. The wording of the provision does not expressly place a mandatory burden on
litigants to produce a certificate. In Mable Muruli v Wycliffe Oparanya & 3 others [2013]
eKLR, the High Court applied article 159 of the Constitution of Kenya (2010) to admit
evidence contained in CDs, citing the absence of a certificate as a mere technicality that
ought not get in the way of justice.

Article 159 urges courts to dispense with undue regard for procedural technicalities.
The judge in the matter cautioned against equating admission of evidence with the
court’s being convinced by the evidence. The court found that the evidence ought to be
admitted in its totality, and the probative value decided after the fact. It is instructive
that this position is essentially replicated in section 78A, which was enacted a year after
this decision.

Despite the enactment of section 78A, a number of cases have interpreted the certificate
as a mandatory requirement such as MNN v ENK [2017] eKLR and London Distillers
(K) Ltd. v Mavoko Water and Sewerage Company & 2 others [2019] eKLR).
The common approach adopted by decisions upholding the mandatory nature of the
certificate is to argue that sections 106B and 78A ought to be contemporaneously
applied. This was the case in R v Mark Lloyd Stevenson [2016] eKLR, Republic v Betting
Control & Licensing Board & 3 others ex-parte Diana Muthoni t/a DND Gaming
Machines [2019] eKLR, and Idris Abdi Abdullahi v Ahmed Bashane & 2 others [2018]
eKLR, all before the High Court. In rationalising a finding that the requirement is
mandatory, the High Court held that, despite section 106B being the earlier of the two
provisions, it gives effect to section 78A, in that it sets out the conditions in which the
latter should be implemented, and that article 159 considerations are insufficient to
displace this requirement of a certificate

3. Ambiguities and shortcomings

A textual analysis of section 106B uncovers several issues. There are major ambiguities
in subsections (2) and (4). To start, the law refers to "ordinary" or "regular" activities in
relation to the production of the computer output that is sought to be admitted as
evidence. This raises concerns because, when it comes to ubiquitous general purpose
computer devices like 3smartphones, the challenge of this ambiguity becomes all too
evident. Some concepts and phrases remain undefined.
For example in Ndigwa Steve Mbogo v IEBC & 2 others [2017] eKLR ,just what is the
regular activity of a smartphone? In addition to the device in question being subjected
to this ‘ordinary activity’ standard, operators of such devices are also subject to the
standard, yet the concept remains undefined. In Ndigwa Steve Mbogo v IEBC & 2
others ([2017] eKLR), the court rejected audiovisual evidence obtained from social
media due to the fact that downloading videos from social media did not constitute the
person's regular activities.

4. The 106B certificate is impractical and ineffective

First, requiring a certificate presents a barrier that may be significantly challenging or
even insurmountable in the context of the Kenyan jurisdiction. An illustrative example
is evidence from a user account on a social media platform. Given the wide availability
of internet-connected mobile devices, evidence pertaining to criminal or tortious
activity is increasingly obtained by ordinary individuals and uploaded to social media
accounts, sometimes directly. . For example, video evidence relevant to a crime may be
transmitted by a user device to Facebook Live, but the video may be stored on Facebook
servers rather than locally to the user device. Requiring a certificate for such evidence
raises numerous questions and significant challenges, since the people involved in the
multi-step process of collecting, storing, and retrieving such evidence are numerous and
often outside the jurisdiction of Kenya.

Second, requiring a certificate is further problematic because it oversimplifies the issue,

and may unjustifiably bias a judge toward finding a piece of evidence reliable, even
where the certificate does not address reliability. Requiring a single certificate to
guarantee admissibility of the evidence also ignores the continuity of evidence (also
called chain of custody), a long-established principle in judicial systems.

Third, the preliminary threshold requiring certification of e-evidence from the

beginning is not necessary considering that, where the e-evidence is admitted without
certification, there remains an opportunity for the court to interrogate the evidence and
make a determination as to its probative value and if any weight is to be attached
thereto.

3 Isaac Rutenberg, Stephen Kiptinness and Abdulmalik Sugow, Admission of Electronic Evidence: Contradictions in the Kenyan Evidence Act, (2021), DEESLR, 18.
 ● Sections 78A and 106B of the Evidence Act provide contradicting approaches to
the admissibility of e-evidence. These contradictions have resulted in conflicting
jurisprudence throughout the Kenyan judicial system. In the conflict, some
decisions provide that certification is mandatory whereas others dispense with it,
favouring admissibility. The latter approach is the preferred practice due to,
among other reasons, the inability of certificates to guarantee reliability, and the
encumbrance placed upon litigants.
The following choices could be taken into consideration in order to ensure consistency
and clarity when handling the conflicting approaches of Sections 106B and 78A of the
Evidence Act:
● Legislative amendments
A potential solution to address the inconsistencies and promote consistency would be
amending the Evidence Act. This could entail adding or removing clauses that
contradict one another or making clarifications to clear up any ambiguous terms.
Thorough deliberation, research, and consultation with experts and interested parties
would be necessary during the legislative process to guarantee that the amendments
adequately address the issue at hand.

● Judicial Harmonisation
One more option would be for the judiciary to take the initiative in reconciling and
interpreting the contradictory clauses. Courts could examine the conflicting clauses and
offer reputable verdicts or suggestions for how to interpret them. This would facilitate
the development of a common approach and provide clarity in the way the law is
applied.

● Law reform commission

The Kenya Law Reform Commission could conduct an in-depth review of the Evidence
Act and offer reform recommendations to resolve the inconsistencies. Studying
precedents, speaking with legal professionals, and interacting with stakeholders would
all be necessary to guarantee thorough revisions that improve consistency and clarity.

● Comparative analysis
Comparatively analysing different jurisdictions might reveal important information
about how similar contradictions have been resolved. Analysing the methods employed
in similar legal systems can present solutions to the issues discussed above. For
example:
1. United Kingdom: Guidelines on the admissibility of electronic evidence are
provided by the Criminal Justice Act 2003 and the Civil Evidence Act 1995 in the
United Kingdom. The law contains rules for certification, which is not necessary
if alternative forms of authentication can be satisfied, and it sets requirements for
the admissibility of electronic records.
2. United States: To address the admissibility of electronic evidence, the Federal
Rules of Evidence in the United States were amended. Rule 901 and Rule 902,
which provide specific guidelines for self-authenticating electronic evidence,
such as certified records generated by an electronic process or certified copies of
public records, are examples of updated rules that define the requirements for
authentication and certification of electronic evidence.

These reforms would promote access to justice, ensure a fair hearing and equip legal
professionals with the necessities to address contemporary challenges with regard to
the admissibility of electronic evidence.
7.Admissibility of unlawfully obtained evidence.
Article 50(4) of the 2010 Kenyan Constitution provides that “evidence obtained in a
manner that violates any right or fundamental freedom in the Bill of Rights shall be
excluded if the admission of that evidence would render the trial unfair,or would
otherwise be detrimental to the administration of justice.’’In other words Article 50(4)
allows a court to admit evidence obtained in a manner that violates a right or rights in
the Bill of Rights provided the admission of such evidence would not render the trial
unfair or otherwise be detrimental to the administration of justice.
The provisions in the evidence act should be revised to clearly define the circumstances
under which unlawfully obtained may be admissible,ensuring it adheres to
constitutional protections against unreasonable searches and seizures.
8. Reforms on hearsay evidence in Kenya.
Hearsay evidence- This is an out of court statement which is offered in court for the truth of
what happens.

There is normally a rule against hearsay known as the hearsay evidence rule which states that a
statement made by a person not called as a witness to prove the truth of the facts contained in
the statement is hearsay and not admissible but if the statement is offered in evidence not to
prove the facts of the statement but to prove that the statement was actually made then it is not
hear say and is admissible.
This is emphasized in the a case in the court of appeal of Kinyatti v Republic and section 63 of
the evidence act which states that oral evidence in all cases must be direct evidence.

However, there are a few exceptions to the hearsay evidence rule which have been stated in
article 33 of the evidence act.

A major criticism of this rule is that it is so strict and unreliable such that it may exclude
evidence that would be accurate and unreliable.

As a result there should be reforms aimed at striking a balance between safeguarding against
unreliable information and admitting important evidence.

A good case is the case of Subramanium v Public prosecutor where the appellant was charged with
being in possession of firearms without a lawful excuse. In his defence he stated that he acted
under duress as a result of threats directed to him by terrorists. When he attempted to state the
content of the threats, the judge dismissed the evidence as hearsay. He appealed against the
conviction and the court of appeal quashed the conviction stating that what the terrorists told
the appellant should have been admitted as direct evidence as it would have shed light on
subsequent actions of the appellant.

This case just goes to show how dismissing hearsay can deter justice for some people hence the
need for some reforms on hearsay.

One proposal would be to amend the existing rule which prohibits the admission of hearsay
evidence in criminal proceedings should be reformed such that the court be given discretion to
admit hearsay that isi necessary and reliable.

We should also clearly define and expand the exceptions for hearsay in order to ensure a
greater scope to admit hearsay in specific circumstances. Hearsay should be admissible if

a) It falls within a statutory exception.

b) It falls within a common law exception.
c) The parties agree
d) The court admit that it is necessary to admit the evidence and that it is reliable.

For purposes of admission, the court must give regard to all circumstance relevant to the
apparent reliability of the statement, including the nature and contents of the statement,
circumstances in which it was made and factors that relate to the truthfulness of the declarant.

Hearsay should not be admitted unless it’s probative value exceeds it’s prejudicial effect.

It would also help to place some emphasis on documents and records to support the reliability
of the statements made outside the court room.

It would also help if business records should be presumed to be admissible in both civil and
criminal cases. They should however be subject to procedural requirements to ensure both are
reliable. Such records include hospital records for personal injuries.

Doing so and adding the presumption of admissibility, would mean that admitting them in
evidence would no longer depend on the agreement of the parties and that a witness maybe on
standby to ensure that the records were properly compiled in the course of business.
This would assist in reducing the cost of civil proceedings, including personal injuries.

Experts should also be allowed to check on the credibility of certain types of hearsay evidence
which would give the court insights into the probative value of the evidence.

There should also be cross examination opportunities to challenge hearsay evidence and ensure
fair scrutiny and ability to test it’s accuracy.