Abstract

Digital evidence just like other forms of evidence are expected to provide information to court trying cases, involving factual disputes including testimony, documents, and physical objects Section 3(2) of the evidence Act CAP 80 of the laws of Kenya, defines evidence as something (including testimony), documents and tangible objects that tend to prove and disprove existence of the alleged facts. In the words of Eughan Cassey, digital evidence is “any data stored or transmitted using a computer that support or refute a theory of how an offense occurred or that address critical elements of the offense such as an intent or an “alibi”. This paper focuses on the substantive laws providing the legal frame works for the admissibility of digital evidence in the administration of justice in Kenya with emphasis on sexual offenses cases. The paper intends to analyze the adequacy and the effectiveness of Kenya laws when handling digital evidence in the administration of justice. The object of a court is to administer justice and the purpose of digital evidence investigators is to present or provide supporting evidence, facts, and the probabilities. The fundamental question, should any digital evidence stored in a computer continue to be treated as documentary evidence? It is imperative to examine the jurisprudence from other jurisdictions as well. The paper analyzes whether digital evidence is admissible in Kenya and its consideration of probative value and reliability.

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