The screenshot that lost the case: digital evidence under the Evidence Act
Kenyan courts admit electronic records under sections 78A and 106B of the Evidence Act Cap 80, but the two provisions pull in different directions. What a brand owner should capture, and how, before the listing disappears.
A counterfeit listing on a marketplace can vanish in an hour. The seller renames the shop, the photographs change, and the only trace of the infringement is whatever the brand owner kept. Whether that trace survives an admissibility objection depends on decisions made in the first ten minutes, long before any advocate is involved.
Two provisions, two standards
Section 78A of the Evidence Act Cap 80 admits electronic and digital evidence and directs the court to weigh its reliability, looking at how the record was generated, stored, and communicated, and at the integrity of the system that held it. Section 106B, imported from the Indian model, takes a stricter line: it conditions admissibility of computer output on a certificate identifying the device and confirming that it operated properly.
The two sections have never been fully reconciled, and parties exploit the gap. An objection under 106B can stall a matter even where the record is plainly genuine. Until the contradiction is resolved by amendment or settled authority, the safe course is to satisfy both standards at once.
What to capture
A bare screenshot is the weakest form of digital evidence because it shows content without context. Capture the full page including the address bar and the date, then record the same listing as a screen recording that shows you arriving at the page from a search. Note the device used, the account that viewed it, and the time. Where money changed hands in a test purchase, keep the payment record and the delivery packaging; the physical goods corroborate the digital trail.
Who should capture it
The person who made the record may need to swear to it. A record made by a junior employee who has since left the company is harder to certify than one made by someone who will still be available at trial. For matters likely to be contested, an independent capture, by an advocate, an investigator, or a notarised process, is worth the cost.
The broader point is one this practice repeats often: a right you cannot prove is a right you cannot enforce. Evidence handling is not an afterthought to enforcement. It is the enforcement.