Why Judge Gitari rejected Karua's evidence - Daily Nation

High court rejects Karua's evidence in election case

Tuesday May 22 2018

Martha Karua

Narc-Kenya party leader Martha Karua testifies against the election of Kirinyaga Governor Anne Waiguru at Kerugoya High Court on May 3, 2018. PHOTO | NATION MEDIA GROUP 

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The High Court has prevented Martha Karua from producing video evidence of alleged malpractices committed during the Kirinyaga governorship elections.

Kerugoya High Court Judge Lucy Gitari ruled that the evidence is inadmissible.

"It would be irregular to produce additional evidence after cross examination.

"With the strict timelines, it may deny the respondents opportunity to make enquiry and adequately respond. The evidence is inadmissible. The application is disallowed," Judge Gitari said.

Ms Karua’s witness Kepha Sagana indicated that the video shows improprieties that took place at Kangaru in Mwea during the August 8, 2017 election.


The Narc-Kenya party leader had urged the court to allow presentation of the evidence, arguing that it was not produced when submitting her evidence.  

Mr Sagana said the video was recorded using his phone and that he made a compact disk that was annexed to his affidavit.

This means, the judge said, the phone was connected to a computer for the video to be accessed.

"Meaning the video was subjected to a process. The witness said nothing about his consent and there was no certificate made as required by the Evidence Act," Ms Gitari said.

She further noted that the evidence was initially in the mobile phone of the witness and it has been his custody.

"It is also electronic evidence," the judge said while making legal citations of other judges emphasising the need for wariness when handling electronic evidence.


She referred to Section 106 (b) and 107 of the Evidence Act cited by a judge at the Kisumu High Court in 2015 where it was ruled that a CD was not admissible.

She argued that such evidence can be manipulated, changed or altered.  

She said Mr Sagana’s exhibit has not met requirements for production as electronic evidence.

"The law on admissibility of electronic evidence as set out in Section 78 and 106 of the Evidence Act states that electronic evidence can only be admitted if it meets the safeguards and conditions set out in the provisions of the law," the judge ruled.

She said the law seeks to ensure authenticity and reliability of such evidence.

"There was no attempt by the witness to comply with the provisions and requirements. No certificate was provided," she said.


Mr Sagana was the final witness for Ms Karua in the petition that seeks to quash the election of Governor Anne Waiguru.

The Independent Electoral and Boundaries Commission (IEBC), which is opposing the petition, has started producing its witnesses.

The hearing will continue on Tuesday.