Evidence Law: Documentary Evidence in Kenyan Courts

Section 64-78A of the Kenya evidence Act

DOCUMENTARY EVIDENCE
64. Proof of contents of documents
The contents of documents may be proved either by primary or by secondary
evidence.
65. Primary evidence
(1) Primary evidence means the document itself produced for the inspection
of the court.
(2) Where a document is executed in several parts, each part is primary
evidence of the document.
(3) Where a document is executed in counterpart each counterpart being
executed by one or some of the parties only, each counterpart is primary evidence
as against the parties executing it.
(4) Where a number of documents are all made by one uniform process, as in
the case of printing, lithography or photography, each is primary evidence of the
contents of the rest; but where they are all copies of a common original they are
not primary evidence of the contents of the original.
(5) Notwithstanding anything contained in any other law for the time being in
force—
(a) a micro-film of a document or the reproduction of the image or images
embodied in such micro-film; or
(b) a facsimile copy of a document or an image of a document derived or
captured from the original document; or
(c) a statement contained in a document and included in printed material
produced by a computer (hereinafter referred to as a “computer print-
out”),
shall, if the conditions stipulated in subsection (6) of this section are satisfied, be
deemed to also be a document for the purposes of this Act and shall be admissible
in any proceedings without further proof of production of the original, as evidence
of any contents of the original or of any fact stated therein of which direct evidence
would be admissible.
(6) The conditions referred to in subsection (5) in respect of a computer print-
out shall be the following, namely—
(a) the computer print-out containing the statement must have been
produced by the computer during the period in which the computer
was regularly used to store or process information for the purposes of
any activities regularly carried on over that period by a person having
lawful control over the use of the computer;
(b) the computer was, during the period to which the proceedings relate,
used in the ordinary course of business regularly and was supplied
with information of the kind contained in the document or of the kind
from which the information so contained is derived;
(c) the computer was operating properly or, if not, that any respect in
which it was not operating properly was not such as to affect the
production of the document or the accuracy of its content;
(d) the information contained in the statement reproduces or is derived
from information supplied to the computer in the ordinary course of
business.
(7) Where, over any period, the function of storing or processing information
for the purposes of any activities regularly carried on over that period mentioned in
paragraph (a) of subsection (6) was regularly performed by computers, whether—
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over
that period; or
(d) in any other manner involving the successive operation over that
period, in whatever order, of one or more computers and one or more
combination of computers,
all computers used for that purpose during that period shall be treated for the
purposes of this section as constituting a single computer; and references in this
section to a computer shall be construed accordingly.
(8) In any proceedings under this Act where it is desired to give a computer
print-out or statement in evidence by virtue of this section, a certificate doing any
of the following things, that is to say—
(a) identifying a document containing a print-out or statement and
describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that
document as may be appropriate for the purpose of showing that the
document was produced by a computer;
(c) dealing with any of the matters to which conditions mentioned in the
subsection (6) relate,
which is certified by a person holding a responsible position in relation to the
operation of the relevant device or the management of the activities to which
the document relates in the ordinary course of business shall be admissible in
evidence.
(9) For the purposes of this section—
(a) information shall be deemed to be supplied to a computer if it is
supplied in any appropriate form and whether it is so supplied directly
or (with or without human intervention) by means of any appropriate
equipment;
(b) information shall be deemed to be supplied in the ordinary course of
business if the information was obtained, received or supplied with a
view to it being processed, stored or retrieved in the ordinary course
of business; and
(c) a document shall be deemed to have been produced by a computer
whether it was produced by it directly or (with or without human
intervention) by means of any other appropriate equipment connected
to such computer.
66. Secondary evidence
Secondary evidence includes—
(a) certified copies given under the provisions hereinafter contained;
(b) copies made from the original by mechanical processes which in
themselves ensure the accuracy of the copy, and copies compared
with such copies;
(c) copies made from or compared with the original;
(d) counterparts of documents as against the parties who did not execute
them;
(e) oral accounts of the contents of a document given by some person
who has himself seen it.
67. Proof of documents by primary evidence
Documents must be proved by primary evidence except in the cases hereinafter
mentioned.
68. Proof of documents by secondary evidence
(1) Secondary evidence may be given of the existence, condition or contents
of a document in the following cases—
(a) when the original is shown or appears to be in the possession or power
of—
(i) the person against whom the document is sought to be proved;
or
(ii) a person out of reach of, or not subject to, the process of the
court; or
(iii) any person legally bound to produce it,
and when, after the notice required by section 69 of this Act has been given,
such person refuses or fails to produce it;
(b) when the existence, condition or contents of the original are proved
to be admitted in writing by the person against whom it is proved, or
by his representative in interest;
(c) when the original has been destroyed or lost, or when the party
offering evidence of its contents cannot, for any other reason not
arising from his own default or neglect, produce it in a reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section
79 of this Act;
(f) when the original is a document of which a certified copy is permitted
by this Act or by any written law to be given in evidence;
(g) when the original consists of numerous accounts or other documents
which cannot conveniently be examined in court, and the fact to be
proved is the general result of the whole collection.
(2) (a) In the cases mentioned in paragraphs (a), (c) and (d) of subsection (1),
any secondary evidence of the contents of the document is admissible.
(b) In the case mentioned in paragraph (b) of subsection (1) of this section, the
written admission is admissible.
(c) In the cases mentioned in paragraphs (e) and (f) of subsection (1) of this
section, a certified copy of the document, but no other kind of secondary evidence,
is admissible.
(d) In the case mentioned in paragraph (g) of subsection (1) of this section,
evidence may be given as to the general result of the accounts or documents by
any person who has examined them, and who is skilled in the examination of such
accounts or documents.
69. Notice to produce a document
Secondary evidence of the contents of the documents referred to in
section 68(1)(a) of this Act shall not be given unless the party proposing to give
such secondary evidence has previously given to the party in whose possession or
power the document is, or to his advocate, such a notice to produce it as is required
by law or such notice as the court considers reasonable in the circumstances of
the case:
Provided that such notice shall not be required in order to render secondary
evidence admissible in any of the following cases—
(i) when the document to be proved is itself a notice;
(ii) when from the nature of the case, the adverse party must know that
he will be required to produce it;
(iii) when it appears or is proved that the adverse party has obtained
possession of the original by fraud or force;
(iv) when the adverse party or his agent has the original in court;
(v) when the adverse party or his agent has admitted the loss of the
document;
(vi) when the person in possession of the document is out of reach of, or
not subject to, the process of the court;
(vii) in any other case in which the court thinks fit to dispense with the
requirement.
70. Proof of allegation that persons signed or wrote a document
If a document is alleged to be signed or to have been written wholly or in part
by any person, the signature or the handwriting of so much of the document as is
alleged to be in that person’s handwriting must be proved to be in his handwriting.
71. Proof of execution of document required by law to be attested
If a document is required by law to be attested it shall not be used as evidence
until one attesting witness at least has been called for the purpose of proving its
execution, if there is an attesting witness alive and subject to the process of the
court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of
the execution of any document which has been registered in accordance with the
provisions of any written law, unless its execution by the person by whom it purports
to have been executed is specifically denied.

72. Proof where no attesting witness found
Where evidence is required of a document which is required by law to be
attested, and none of the attesting witnesses can be found, or where such witness
is incapable of giving evidence or cannot be called as a witness without an amount
of delay or expense which the court regards as unreasonable, it must be proved
that the attestation of one attesting witness at least is in his handwriting, and that
the signature of the person executing the document is in the handwriting of that
person.
73. Admission of execution of attested document
The admission of a party to an attested document, of its execution by himself,
shall be sufficient proof of its execution as against him though it be a document
required by law to be attested.
74. Proof where attesting witness denies execution
If the attesting witness denies or does not recollect the execution of a document,
its execution may be proved by other evidence.
75. Proof of document not required to be attested
An attested document not required by law to be attested may be proved as if
it was unattested.
76. Comparison of signatures, seals, etc.
(1) In order to ascertain whether a signature, writing or seal is that of the person
by whom it purports to have been written or made, any signature, writing or seal,
admitted or proved to the satisfaction of the court to have been written or made
by that person, may be compared by a witness or by the court with the one which
is to be proved, although that signature, writing or seal has not been produced or
proved for any other purpose.
(2) The court may direct any person present in court to write any words or
figures for the purpose of enabling the court to compare the words or figures so
written with any words or figures alleged to have been written by such person.
(3) This section applies with necessary modifications to finger impressions.
77. Reports by Government analysts and geologists
(1) In criminal proceedings any document purporting to be a report under the
hand of a Government analyst, medical practitioner or of any ballistics expert,
document examiner or geologist upon any person, matter or thing submitted to him
for examination or analysis may be used in evidence.
(2) The court may presume that the signature to any such document is genuine
and that the person signing it held the office and qualifications which he professed
to hold at the time when he signed it.
(3) When any report is so used the court may, if it thinks fit, summon the analyst,
ballistics expert, document examiner, medical practitioner, or geologist, as the case
may be, and examine him as to the subject matter thereof.
78. Photographic evidence—admissibility of certificate
(1) In criminal proceedings a certificate in the form in the First Schedule to this
Act, given under the hand of an officer appointed by order of the Director of Public
Prosecutions for the purpose, who shall have prepared a photographic print or a
photographic enlargement from exposed film submitted to him, shall be admissible,
together with any photographic prints, photographic enlargements and any other
annex referred to therein, and shall be evidence of all facts stated therein.
(2) The court may presume that the signature to any such certificate is genuine.
(3) When a certificate is received in evidence under this section the court may,
if it thinks fit, summon and examine the person who gave it.
[L.N. 22/1965, Act No. 12 of 2012, Sch.]
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.
(3) In estimating the weight, if any, to be attached to electronic and digital
evidence, under subsection (1), regard shall be had to—
(a) the reliability of the manner in which the electronic and digital evidence
was generated, stored or communicated;
(b) the reliability of the manner in which the integrity of the electronic and
digital evidence was maintained;
(c) the manner in which the originator of the electronic and digital
evidence was identified; and
(d) any other relevant factor.
(4) Electronic and digital evidence generated by a person in the ordinary course
of business, or a copy or printout of or an extract from the electronic and digital
evidence certified to be correct by a person in the service of such person, is on
its mere production in any civil, criminal, administrative or disciplinary proceedings
under any law, the rules of a self-regulatory organization or any other law or the
common law, admissible in evidence against any person and rebuttable proof of
the facts contained in such record, copy, printout or extract.