Admission of electronic evidence

Contradictions in the Kenyan Evidence Act

Abstract

In its provision for the admissibility of electronic evidence, the Kenyan Evidence Act includes two apparently conflicting provisions. Under section 106B, the Evidence Act prescribes conditions for admissibility, and uses the concept of a certificate as a means of proof of authenticity. On the other hand, under section 78A, electronic evidence is admissible, with no mention of the use of a certificate. There has been conflicting jurisprudence as a result. This paper proposes that section 106B ought to be repealed to give way to the section 78A presumption of admissibility due to numerous issues associated with the certificate.

Index words: Kenya; Evidence Act; conditions for admissibility; electronic evidence; conflicting jurisprudence; Commonwealth Model Law on Electronic Evidence