A Comparative study on the admissibility of digital evidence in criminal courts in Kenya

Abstract

Section 106B of the Evidence Act of Kenya regulates the admissibility of digital evidence in Kenya. With the evolution of technology, questions can be raised as to whether the standards for admissibility outlined in Section 106B are sufficient. This research critiques the sufficiency of standards of admissibility of evidence outlined in Section 106B. It does so by engaging in a comparative study of the standards used in the UK and in South Africa. The study arrives at the conclusion that the standards of admissibility currently in place offer too wide investigatory powers for law enforcement. These powers are subject to abuse and may result in compromising the integrity of digital evidence. The standards in Section 106B offer little guidance for law enforcement and criminal justice partners in admitting digital evidence. With the evolution of technology as well as the primacy placed on personal liberties such as the right to privacy, more stringent rules must be developed. In order to complement the standards outlined in section 106B, guidelines should be developed. These guidelines could either be general or sectoral. They should be reviewed constantly in order to keep up with the latest technology trends. The guidelines to be developed should guide law enforcement and criminal justice partners in the collection, analysis, presentation and preservation of digital evidence in order to prevent adverse rulings.