Admissibility of Electronic Evidence in Kenya

The advent of technological development and the consequent evolution of paperless transactions have
permeated every sphere of life, and the legal system is no exception: in the event of disputes involving
transactions conducted through electronic means, parties are bound to rely on electronic evidence of
such transactions.

The Kenyan Evidence Act (Cap 80 Laws of Kenya) recognizes and endorses the use of
electronic evidence in Kenya. Second, it reiterates the conditions for the admissibility of
electronic evidence. In determining the admissibility of electronic evidence Section 78A of the
Act provides;
78A. Admissibility of electronic and digital evidence
(1) In any legal proceedings, electronic messages 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 its original form.1
This section is that it makes explicit that electronic messages are admissible as evidence in
Kenya provided that they satisfy the other requirements for such admission. This section does
not obviate the need for establishing the relevance of the proposed evidence in the same way it
does not excuse the need for authentication of the proposed evidence. This section is also helpful
in codifying the factors to be taken into account in assessing the weight to be given to an
authenticated and admitted electronic message.
The conditions upon which such electronic evidence would be admissible are provided for under
Section 106 (B) of the same Act. Section 106 (B) (1) provides as follows.
“106B(1) Notwithstanding anything contained in this Act, any information
contained in an electronic record which is printed on a paper, stored, recorded or
copied on optical or electro-magnetic media produced by a computer (herein
referred to as 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
Section 106 (B) means that any information stored in a computer which is then printed or copied
to optical media such a CD in this case, shall be treated like documentary evidence and will be
admissible as evidence without production of the original. However, Section 106B also provides
that such electronic evidence will only be admissible if the conditions laid out in that provision
are satisfied, Section 106B (4) provides: –

1
Evidence Act s78AN Laws of Kenya
2
Ibid s106(B)
This provision is clear that, for electronic evidence to be deemed admissible it must be
accompanied by a certificate in terms of Section 106 B (4).
Given the significant technological challenges the Court faces in the digital age, it has never
been more important for judges to engage with technological concepts. Judges have the final say
in determining the authenticity of digital evidence.3 They are therefore the best hope and weakest
link for ensuring the proper resolution of authentication disputes. For these reasons, judges must
improve their basic literacy of digital evidence authentication.

3
Chelsea Quilling, ‘The Future of Digital Evidence Authentication at the International Criminal Court’ (2022)