Introduction
The proliferation of digital communication platforms has fundamentally transformed the manner in which disputes arise, are investigated and ultimately determined by courts. Further, the digitalization of communication has altered the evidentiary landscape of modern litigation where litigants place before Courts WhatsApp conversations, screenshots, social media posts, emails, audio recordings, photographs, videos, CCTV footage, call logs and other forms of electronically generated material as evidence in support of their cases.
However, the fact that information exists electronically does not, by itself, make it automatically admissible or conclusive as such, various laws have been passed establishing the framework intended to ensure that electronic evidence is sufficiently authentic, reliable and capable of being properly attributed to its alleged originator.
In the circumstance, the Kenyan courts are mandated to ensure that the electronic evidence produced by a party is relevant, authentic, admissible and compliant with the statutory provisions.
The principal provisions governing electronic and digital evidence are enshrined in Sections 78A, 106A and 106B of the Evidence Act, Cap. 80 as read together with Articles 31 and 50 of the Constitution of Kenya (2010) that is right to privacy and the right to a fair hearing respectively.
1. Admissibility of electronic and digital evidence
The production of electronic evidence does not automatically guarantee admissibility of the said evidence. Section 78A of the Evidence Act (Cap 80, Laws of Kenya) provides for the admissibility of electronic and digital evidence in legal proceedings. Section 78A(2) provides that a court should not reject electronic or digital evidence merely because it is not presented in its original form. This is significant because most of the electronic evidence tendered in the Kenyan courts take the form of printouts, copies, screenshots or extracts rather than the original electronic file or device.
The courts have repeatedly held that Sections 78A and 106B must be considered together where the electronic record falls within the statutory requirements of Section 106B.
In Mwaganda v Mbangha [2022] KEHC 17091 (KLR), the High Court considered printed WhatsApp messages and observed that the process of taking screenshots, transmitting them electronically, downloading them and subsequently printing them constituted electronic records. The court consequently held that Sections 78A and 106B had to be complied with.
In Mugania & 3 Others v Meru County Government & 3 Others [2026] KEELC 117 (KLR), the court rejected the argument that Section 106B applies only to criminal proceedings and held expressly that the provision applies to both civil and criminal proceedings. The court further held that WhatsApp messages could be admitted subject to compliance with Section 106B.
Thus, in Kenyan Courts, the practical position is that Digital evidence may be admissible, but the party seeking to rely upon it must still establish the necessary evidentiary foundation.
2. The Authentication Framework
Authentication is the process of establishing that the digital evidence fits and relates to the intended use and parties, i.e has not been altered and/or manipulated. Section 106A of the Evidence Act provides that the contents of electronic records may be proved in accordance with Section 106B, therefore establishing Section 106B as the central test for admissibility of electronic records that are tendered as computer output.
In the case of Commissioner for Human Rights & Justice (CHRJ) vs Victoria Mutuku & others (2021), the court stated that there must be sufficient certainty that digital evidence was handled in a manner that did not compromise its integrity.
Section 106B(4) provides for need of a certificate that the party relying on electronic evidence is required to produce in court in order to assess the authenticity and integrity of the electronic record. The Certificate should:
a) identify the electronic record;
b) describe the manner in which the record was produced;
c) provide appropriate particulars of the device involved in producing the record;
d) address the statutory conditions under Section 106B(2); and
e) be signed by a person occupying a responsible position in relation to the operation of the relevant device or management of the relevant activities
In County Assembly of Kisumu & 2 Others v Kisumu County Assembly Service Board & 6 Others [2015] KECA 397 (KLR), the Court of Appeal explained that Mandatory Statutory requirement for a certificate exist because electronic evidence is susceptible to manipulation. The court also pointed out that the Evidence Act does not prescribe a particular format for the certificate. It may take different forms, including, in appropriate circumstances, averments contained in an affidavit which satisfy the statutory requirements.
Kenyan courts have frequently rejected electronic evidence where the statutory foundation has not been established. In Shorcha v Republic [2024] KEHC 5835 (KLR), the High Court held that the failure to produce the requisite Section 106B certificate rendered the electronic photographs inadmissible and directed that they be expunged from the record.
In the circumstance, it is therefore important to comply with Section 106B where the digital evidence is central to your case. Its evidentiary foundation should also be considered at the point of collection, preservation and preparation of the evidence for trial. For example,
i. WhatsApp messages – they may contain admissions, contractual negotiations, instructions, threats, acknowledgements of debt, employment communications, disciplinary discussions or other information directly relevant to a dispute. In AWG v SG & 2 Others [2025] KEHC 12614 (KLR), the High Court Judge illustrated the nature of objections that may arise in relation to WhatsApp screenshots, including concerns about whether the identity of the sender and recipient, date, time and context can be established and stated that a screenshot should not automatically be treated as conclusive merely because it appears to show a conversation.
ii. Emails printouts – they are relied upon to provide a stronger evidentiary trail than screenshots because they may contain information such as sender and recipient details, dates, timestamps, subject lines and attachments. In Florence Mueni Mbuvi v Faustina Holdings Limited & Another [2021] KEELC 265 (KLR), the court considered emails downloaded and printed from a computer and found that the emails and accompanying certificate satisfied the Section 106B requirements.
iii. CCTV, photographs, audio and video are also widely relied upon as evidence and require authentication and proper storage as they are prone to manipulation and editing. In the case of Keter & another vs Republic (2022), the Court considered the admissibility and authentication of video evidence and emphasized the importance of the authentication process.
Digital evidence at times may be subjected to expert witness/evidence in order to verify, confirm and/or provide evidence where the authenticity and integrity of the evidence is seriously disputed and/or challenged.
3. Privacy and Data Protection Considerations
Article 31 of the Constitution protects the right to privacy, including the right not to have the privacy of a person’s communications infringed. This is particularly significant where digital evidence has been obtained from another person’s phone, a private email account, a WhatsApp account, a password-protected computer, private cloud storage, workplace systems containing personal communications and/or another person’s private electronic account.
Article 50(4) is relevant to the above discourse, and it reads “Evidence obtained in a manner that violates a right or fundamental freedom in the Bill of Rights should be excluded if admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice”. In Cheruiyot v Ethics and Anti-Corruption Commission [2023] KEHC 3918 (KLR), the High Court observed that not all illegally obtained evidence is automatically excluded; the constitutional test under Article 50(4) requires consideration of whether admission would render the trial unfair or otherwise be detrimental to the administration of justice.
At the same time, recent decisions demonstrate that privacy violations can have serious evidentiary consequences. In Muchemi v Muchemi [2025] KEELRC 2862 (KLR), the court considered Article 31 alongside Article 50(4) and emphasized the importance of the manner in which covert recordings are obtained, authenticated and presented. The Kenyan Court have adopted the approach of constitutional balancing, rather than an automatic rule of inclusion or exclusion.
The Data Protection Act, 2019 adds another dimension to the analysis of the issue as to whether the collection, disclosure, storage or use of such material complies with applicable data-protection obligations. Digital communications frequently contain personal data: names, telephone numbers, photographs, financial information, employment information, location information and private correspondence.
4. Chain of Custody and Preservation
Where digital evidence is likely to be contested, preservation should begin immediately. This is particularly important for audio recordings, videos, photographs, exported WhatsApp conversations and other files capable of being edited. This is to ensure that the authenticity of the evidence is preserved.
5. Digital Evidence and Trial by Ambush
It is trite in the Kenyan Courts that, electronic evidence should not ordinarily be introduced at the last minute in a manner that deprives the opposing party of a fair opportunity to examine or challenge it, this is based on the principle of procedural fairness. Article 50(2)(j) of the Constitution protects an accused person’s right to be informed in advance of the evidence the prosecution intends to rely upon and to have reasonable access to that evidence.
Article 50(4) requires the court to consider whether admission of digital evidence would render the trial unfair or otherwise be detrimental to the administration of justice following collection of such evidence through an infringement of privacy or another fundamental right.
Conclusion
Digital communications are now an established and increasingly important category of evidence in Kenyan litigation. Section 78A of the Evidence Act expressly recognizes the admissibility of electronic and digital material, while Sections 106A and 106B provide the statutory framework through which electronic records may be produced and proved.
A party seeking to rely upon digital evidence must be prepared to establish its authenticity, integrity, origin and reliability and, where applicable, comply with Section 106B, including the certificate requirement.
How ESK Advocates LLP Can Help
At ESK Advocates LLP, our Dispute Resolution Team advises and represents clients across a broad spectrum of civil, commercial and labour disputes. We approach each matter with a clear understanding of the client’s commercial, legal and strategic objectives, developing focused litigation strategies designed to protect our clients’ interests and achieve effective outcomes.
Modern disputes increasingly turn on evidence generated, stored or communicated electronically. Our team is adept at navigating the evidentiary issues that arise from digital material, including its preservation, relevance, authenticity, admissibility and presentation before courts and tribunals. We apply the relevant statutory and evidentiary principles to ensure that electronic evidence is properly identified, preserved and deployed, while anticipating challenges to its admissibility and evidentiary weight.
Whether dealing with contractual disputes, employment and labour claims, commercial conflicts or complex civil litigation, we combine rigorous legal analysis with a practical appreciation of how evidence-including digital evidence-can shape the outcome of a dispute. Our objective is not simply to respond to litigation, but to build and advance cases strategically, with the evidence and the client’s interests at the centre of our approach.
Article By:
Anastacia Njambi
Legal Assistant
Disclaimer:
This publication is for informational purposes only and does not constitute legal advice. For tailored legal support, kindly consult our team.
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