NAME: EVERLYNE NJOROGE

ADMISSION NUMBER: L95S/14209/2015

UNIT TITLE: LAW OF SCIENCE AND

TECHNOLOGY

UNIT CODE: LIL 402

LECTURER: MR. ROBERT CHESANG

STREAM TWO

SIGNATURE:
VARIOUS WAYS IN WHICH SCIENCE AND TECHNOLOGY COULD BE USED IN
THE KENYAN COURTS.

Technology can be described to mean the application of knowledge to meet the goals, goods and
services for sustainable development1 while science refers to the intellectual and practical
activity encompassing the systematic study of the structure and behaviour of the physical and
natural world through observation and experiment. When it comes to considering technology
upgrades and enhancements in the courtroom setting, the primary question to ponder is whether
or not justice will be improved based upon the usage of the technology2. The problem, of course,
is finding reliable and economical solutions to real world problems that ensures justice is
improved and certainly not hindered3. In my research, I will focus on ways in which science and
technology can offer assistance to the court system in Kenya and promote justice.

TECHNOLOGY

Based on the Judiciary Strategic Plan (2014-2018) it highlighted one of the weakness which has
impeded the Judiciary’s effective service delivery is poor physical and ICT infrastructure. It
identified the slow pace of embracing technology, low quality of technology infrastructure and
low levels of innovation and availability of technological solutions as issues requiring attention4.
The former Chief Justice, Dr. Willy Mutunga established the Integrated Court Management
System Committee to address those challenges. The Committee developed an ICT Master Plan
2017-2022 and piloted the Judiciary Automated Transcription System in the Commercial and
Tax Division of the High Court.

Technology can be introduced in Kenyan Courts in the following ways:

1. VIDEO CONFERENCING

During court proceedings, at times a matter has been adjourned due to the absence of a witness.
The matter is delayed in court and takes a long time before a decision is rendered, this leads to
the backlog of cases. The major reason as to why a witness can be absent during court

1
Section 2 of the Science, Technology and Innovation Act No. 28 of 2013.
2
WHITE PAPER: ENHANCING COURTS AND JUSTICE WITH TECHNOLOGY- A POLYCOM PERSPECTVE.
3
WHITE PAPER: ENHANCING COURTS AND JUSTICE WITH TECHNOLOGY- A POLYCOM PERSPECTVE.
4
SUSTAINING JUDICIARY TRANSFORMATION(SJT) A SERVICE DELIVERY AGENDA , 2017-2021
proceedings and have left the country could be due to fear for their life which might have been
threatened. The solution to this is through video conferencing where the witness can be able to
testify against the accused from the comfort of his location through Skype, this mode of
technique will enable the witness to open up and testify with ease. Additionally, he or she will be
safe from any danger since the location of his or her whereabouts will be confidential. Under the
Evidence Act, it provides that the court may receive oral evidence through video conferencing5.
Therefore, the Chief Justice is required to come up with regulations which will be used to govern
video conferencing6. It is a form of acquiring witness statements who are far away from the
country.

2. JUDICIARY WEBSITE

Based on the transition from analogue to digital communication and the introduction of
smartphones in the world, the judiciary should come up with a website which will contain
various information such as: accessing the courts, law magazines, law journals and the cases
which will be heard in court on a certain day. This will provide the public with knowledge on
how the system of the courts work and prevent crowding in the court’s registry by people who
wish to know when the matter will be mentioned or decision being rendered.

3. E-FILLING

Electronic Filling is where there is an electronic platform for filing and service of documents
within the litigation process. It provides the registries of courts with an electronic registry and
workflow system and an electronic case file. This will enable safe storage of documents and easy
access to the documents which will be used in court on a certain date. It will reduce the
congestion of documents in the registry’s cabinet. Also, documents can be sent to an advocate
via email to assist them in preparation for making their submission in court.

4. RECORDING OF SESSIONS

This can be done by taking videos in courts and stored in the registry or the ICT department.
This will assist the judiciary in the following ways: the presiding judge/magistrate will be able to
look back at the evidence provided in court and enable them in rendering a judgement on the

5
Section 63A of the Evidence Act, Cap 80 Laws of Kenya.
6
Section 63A of the Evidence Act, Cap 80 Laws of Kenya.
matter, the advocates for both parties will have an opportunity to look at their opponent’s
evidence once again, find a loophole and rebut their submissions. This will indeed assist in
ensuring effective administration of justice in the Judiciary.

5. TYPING OR TRANSCRIBING OF PROCEEDINGS

Introducing this kind of system during court proceedings will be beneficial to the judiciary. This
will reduce the amount of work the presiding judge/magistrate has of noting down what has been
said during the proceedings. Court clerks who have undergone are equipped with computer
literacy they will be in a position to do the above work.

6. ELECTRONIC MAIL

E-mail is one of the major used form of communication in the world, also its one of the safest
places one can store his or her documents in preparations of court proceedings. The advocates’
clients and witnesses can send very vital information in his or her e-mail which will assist them
during their submissions. E-mail will also prevent instances where evidence gets lost in the court
registry.

7. MOBLIE PAYMENT OF COURT FEES

There should be introduction of M-PESA services within the vicinity of the court. This will
prevent a situation where a person gets robbed off their huge bundles of cash as they come to pay
for bail/bond. At times, a matter can be adjourned and the advocate may forget that he or she is
required for the court adjournment fees and may be in a situation where he has the money in his
phone and there is no M-pesa shop within the compound of the court and be forced to withdraw
the money outside which might be far from the court. This will speed up the court proceedings
and prevent from justice being delayed.

8. VIDEO SURVEILLANCE/ VIDEO EVIDENCE

Most buildings whether offices or homes have put up video cameras for security purposes. In
court proceedings the matter can be admissible in form of electronic and digital evidence7. Video
surveillance is reliable in providing evidence in courts for it shows how the act was committed,

7
Section 78A of the Evidence Act, Cap 80 Laws of Kenya.
the time it occurred and the image of the perpetrator. It will assist the defence in proving that the
defendant is innocent. The Evidence Act provides that in estimating the weight, if any, to be
attached to electronic and digital evidence it shall be had to8-

(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

(d) Any other relevant factor.

Most courts don’t have the proper equipment that will enable to play video recordings in the
courtrooms. Therefore, the judiciary should receive funds in order to purchase televisions and
DVD player for this purpose. This will indeed speed up the court proceedings and justice being
delivered effectively.

9. INFORMATION, COMMUNICATION AND TECHNOLOGY (ICT)

INFRASTRUCTURE

Every courts in the country should have this kind of infrastructure that will have experts in ICT
and also equipment which will be able to adduce electronic evidence. This will also assist in
providing ICT expertise during court proceedings when it is called upon to provide for more
insight in the evidence. This will assist in court proceedings and speed up the procees.

10. JUDICIARY E-DIARY SYSTEM

There is usually a huge problem in the manual date fixing, close diaries and publishing of the
cause lists. Most court diaries are filled and closed within two or three weeks of January and
February in each year. This means no hearing dates can be given for the rest of the year thus
leading to despondency of many litigants and their advocates. Come the following year, there is
a scramble for dates and this creates a fertile ground for corruption in the allocation of hearing
dates. This kind of system will address this problem which enable litigants to continually take

8
Section 78A of the Evidence Act, Cap 80 Laws of Kenya.
hearing dates throughout the year and automatically generates cause lists. It can also incorporate
different interfaces that will assist user to update case dates arising from both the registries and
court room activities.

11. JUDICIAL REGISTRY QUEUE AND CUSTOMER CARE SYSTEM

The judiciary should set up public information centres and High Court stations and introduce
queue management systems as part of digitization with the objective of improving and achieving
better and quality service delivery to citizens. The system will create order and fairness in
serving citizens in the registries. In addition to this, the system will provide statistical reports on
the performance of the registry in terms of case registration, grants/orders collections over a
given period of time, as well as reorganizing business procedures in the registries by mapping
services to service points as well as re-engineering the processes.

12. HIGH-SPEED WIRELESS INFRASTRUCTURE

The courts should implement a high-speed wireless infrastructure in each station and court. This
will provide wireless connection to devices. Citizens, lawyers and judicial officers will be able to
freely access date from their phones, tablets and laptops. This approach will lead to increased
operational flexibility, ubiquitous information access and also has dramatic cost efficiencies.

13. INTERNET ACCESS

Courts should be provided with resources and guidance to procure robust, high-speed internet
access locally. This will give stations the ability to ensure that they are getting the best locally
available service.

SCIENCE

The Evidence Act of Kenya provides that when the court has to form an opinion upon a point of
science, opinions upon that point are admissible if made by persons skilled in such9. Science can
be introduced in Kenyan courts in the following ways:

1. DNA SEQUENCING

9
Section 48 of the Evidence Act, Cap 80 Laws of Kenya
This is referred to the process of determining the accurate order of nucleotides along
chromosomes and genomes. It includes any method or technology that is used to determine the
order of the four bases: adenine, guanine, cytosine, and thymine in a strand of DNA. This can be
helpful during murder trial whereby the blood stains of the murderer found on the body of the
deceased can be taken to the science laboratory for examination. Once a match has been made
then it can be presumed that the murder may have committed the crime. In instances of rape, the
semen found in the victim’s body and the perpetrator can also go through DNA in order to
determine whether the accused did indeed commit the crime. This can also be used in
determining the paternity of the child born out of defilement in order to prove the accused did
commit the act. This is important since there are some defilement cases which the accused
person has been accused falsely and be sent to jail without any DNA being undertaken.

2. BLOOD GROUPING

This will be helpful during instances of medical cases filed in court. For example, a patient may
have died due to blood transfusion where the blood group of the deceased and the donor failed to
match but the hospital went ahead with the process. Medical negligence arises as a result and
therefore in order for justice be provided, the blood group must be determined in order to hold
the hospital liable for the death of the deceased.

3. DENTAL FORMULA RECOGNITION

In instances where a person is alleged to have inflicted pain on a person by way of biting. The
bite marks can be taken for observations in the laboratory for a match to be made in order to
determine whether it belongs to a human or animal.

4. LIE DETECTORS

Also known as Polygraph is a device or procedure that measures and records several
physiological indicators such as blood pressure, pulse, respiration, and skin conductivity while a
person is asked and answers a series of questions in order to determine a person is lying. This
system can be introduced in courts so as a way to speed up the process of a matter, it should be
done to the witnesses and also the parties to the cases. This will avoid sending an innocent
person to jail for a crime he or she didn’t commit.
 5. BRIAN IMAGING

Also referred to as Neuroimaging is the use of various techniques to either directly or indirectly
image the structure, function/pharmacology of the nervous system. This can be helpful in court
proceedings to determine whether a person suffered injuries in the brain and died as a result of
internal bleeding. This can be mostly used in murder trials.

6. BALLISTICS

This is referred to the science that deals with the motion, behavior, and effects of projectiles,
especially bullets, aerial bombs, rockets, or the like; the science or art of designing and hurling
projectiles so as to achieve a desired performance. This is helpful in murder trials where bullets
is involved. For example in Kenya, once the bullet has been removed from the deceased’s body,
the bullet should be taken for examination in order to determine which type of gun was used.
This will provide to catch the owner of the gun and be taken in for questioning.

7. BIOMETRICS

This can be helpful during identifying fingerprints that have been found at the scene of the crime
and the deceased’s body. For example, in the case of Monica Kimani’s murder, fingerprints were
taken for determining whether Joseph Irungu was present at the scene of the crime and it was
discovered that he was indeed present at the time of Monica Kimani’s death. This will indeed
assist to speed up the court proceedings.

8. TOXICOLOGY

Is referred to as the branch of science concerned with the nature, effects, and detection of
poisons. Once again this can be applied in murder cases where a person may have died as a result
of poisoning, the toxic/ poison substance ought to be taken to the laboratory for examination in
order to determine the type of poison that was administered. This will assist in tracking down the
source of the poison, speed up the investigations and justice being served.

9. HANDWRITING

Under the Evidence Act, it provides that when the court has to form an opinion as to the person
by whom any document was written or signed, the opinion of any person acquainted with the
handwriting of the person by whom it is supposed to be written or signed that it was or was not
written or signed by that person, is admissible10. Therefore, this should be implemented in court
proceedings by bringing a handwriting expert in this matter.

CONCLUSION

Science and technology being introduced in courts will be a good initiative in promoting justice
and fairness in the corridors of justice. It will assist in reducing the backlog of cases and speed
up the process of rendering a judgment in the matter.

REFERENCES

1. EVIDENCE ACT, CAP 80 LAWS OF KENYA

2. WHITE PAPER: ENHANCING COURTS AND JUSTICE WITH TECHNOLOGY- A
POLYCOM PERSPECTVE.
3. SUSTAINING JUDICIARY TRANSFORMATION(SJT) A SERVICE DELIVERY
AGENDA , 2017-2021

10
Section 50 of the Evidence Act, Cap 80 Laws of Kenya.