[kictanet] Day 6: e-Discussion. What laws define the rules of evidence in Kenya?

[Kerubo Ombati]

*Hi Listers,*

When it comes to admissibility of electronic records the court is guided by
Sections 106A-I of the Evidence Act.

The basic provisions are

-Any information contained in an electronic record shall be considered to be
a document and admissible in evidence without need to produce the original
document provided the following conditions are met

·         *The information was produced from a computer which was used to
process it by a person having lawful control over that computer*

·         *The information was input into the computer in the ordinary
course of business/activities*

·         *The computer was operational during the period in which the
information was stored and if not, the malfunction did not distort/affect
the information*

·         *If the information is entered by a series of computers, they
shall be deemed to constitute one computer*

·         *Regarding electronic signatures, the subscriber of that signature
must prove that it is theirs unless the signature is secure*

·         *The court will presume in the case of documents containing
electronic signatures that the signature has not been altered since it was
affixed, unless it is proved to the contrary*

·         *Information contained in electronic form of the government
gazette is admissible provided it is contained in the format required by law
*

·         *A court shall presume that every electronic record purporting to
be an agreement containing the electronic signatures of the parties was
concluded by affixing the digital signature of the parties***

·         *Regarding e-mails and other electronic messages ( sms) the court
may presume that the message forwarded by the originator to the person to
whom the message purports to be addressed corresponds with the message as
fed into his computer(or phone as the case may be) for transmission, but the
court shall not make any presumption as to the person by whom such a message
was sent.***

*From the definition of computer in the act,the conditions would also apply
to IPADS,PHONES ETC.*


On Thu, Sep 22, 2011 at 2:34 AM, Grace Githaiga <ggithaiga at hotmail.com>wrote:

>
>
> Good morning Listers******
>
> ** **
>
> This is day six of our discussion on *Aligning records management with ICT
> e-government and Freedom of Information in East Africa**, *a study
> conducted by International Records Management Trust (IRMT) and supported by
> IDRC *. *The study covered five Eastern African Countries namely Kenya,
> Rwanda, Uganda, Burundi and Tanzania****
>
> Today is our last day to focus on the second theme namely: *Electronic
> Records and Citizens.*****
>
> *Under this theme, three issues were identified and today we look at the
> third issue namely* Evidentiary Value of Electronic Records: relying on
> electronic records before the law recognizes them as evidence put
> governments and citizens at risk. If electronic records are to have value as
> evidence, the laws of evidence need to be reformed.****
>
> * *****
>
> *Consider this:*****
>
> ·         What laws define the rules of evidence in Kenya?****
>
> ·         What do these laws provide in respect of admissibility of
> electronic records as evidence in judicial and quasi-judicial processes?**
> **
>
> ·         Have there been any reforms in respect of these laws?****
>
> ·         What issues do these laws need to address?****
>
> **
>
> *Question*
>
> What steps could be taken to raise this issue with Law Reform Commissions
> and legislators?**
>
>
>
> Can we kindly get contributions and especially from those with a legal
> background? This will really be of use to us. **
>
> Regards**
>
> Grace****
>
>
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