11/07/2025
Can your WhatsApp Chats, text messages, audio recordings and videos be used in Court?
Yes — under Kenyan law, WhatsApp chats, text messages, audio recordings, videos, and other electronic communications can be admitted as evidence in court, but only if certain strict legal conditions are met.
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✅ 1. Legality under the Evidence Act
Section 78A of the Kenya Evidence Act explicitly provides that electronic messages and digital material shall be admissible in any legal proceedings, and it does not matter if they are not in their original form .
However, when the court weights the evidence, it must consider:
How the evidence was created, stored, or transmitted,
How its integrity was preserved,
How the sender was identified, and
Any other relevant factors .
Section 106B, which governs electronic records (including outputs like screenshots or printouts), states that such records are admissible as documents if certain conditions are fulfilled:
1. They were produced during regular use of the computer/device by someone in lawful control.
2. Data was regularly fed into the system in the course of ordinary business.
3. The device operated properly, or any malfunction did not affect the record’s accuracy.
4. The record faithfully reproduces the data fed into the system .
A certificate of electronic evidence must also be provided, signed by a person responsible for the system or its data. The certificate should detail how the record was produced, the devices used, the relevant technical conditions, and compliance with the above requirements .
🤝 2. Application to WhatsApp Chats, Audio, and Video
Courts have confirmed that WhatsApp messages fall under both Section 78A and 106B. But without a valid certificate, they cannot be admitted—even if screenshots or printouts are provided. In one case, the absence of a certificate led to the exclusion of WhatsApp messages altogether .
Even if a certificate is provided, courts scrutinize whether:
the messages’ source (e.g. phone, SIM) is authentic;
the chain of custody is unbroken;
the integrity of the data is verifiable;
and any disputes over sender identity have been addressed .
Audio recordings or videos shared through WhatsApp can also be admissible if the same legal requirements are met, including device integrity and certification. But again, courts are cautious due to risks of tampering or manipulation.
Additional Considerations
Privacy and legality of obtaining data: Although Kenya doesn’t generally prohibit using one’s own messages in court, other statutes such as the Computer Misuse and Cybercrimes Act (2018/2020) may make unauthorized access or tampering a criminal offence if recorded without consent or by hacking.
Lack of original device: Courts may not accept exported chat logs or screenshots alone—possession and certification of the original device (e.g. phone) increases admissibility significantly .
Foreign cases (e.g. UK) likewise highlight the need for authentication and chain of custody, and note that screenshots alone may not convince judges without formal statements or affidavits.
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✔️ Practical Advice
1. If you plan to rely on WhatsApp or similar evidence, retain the original device.
2. Prepare or obtain a proper certificate of electronic evidence, detailing:
how and when the data was captured,
what device(s) were involved,
how integrity was maintained,
and signed by a responsible person.
3. Document the chain of events and transmission to show authenticity.
4. Engage a legal professional early, preferably with experience in digital evidence or cybercrime, to ensure full compliance.
