High court Judge James Makau has allowed the application by film director Wanuri Kahiu to air the film Rafiki in court.
The Kenya film and Classification board had argued that allowing the display of the film in court would delay the conclusion of the case.
KFCB CEO EZekiel Mutua argued that application amounted to admitting new evidence without the leave/permission of court and without compliance of the Evidence Act.
“The Evidence Act lays down the conditions which must be met before electronic records can be declared admissible. Petitioners have not satisfied any of the conditions stipulated by the Evidence Act in relation to production of electronic records as evidence before the court. The film we assume shall be presented in some electronic format for exhibition before court,” he said.
According to Mr Mutua and the KFCB board, it is not necessary for the film to be played in court to help in the determination of the case.
Through their lawyers from the firm of Sisule Musungu & Associates Advocates, Mutua argued that the film’s director Wanuri Kahiu had failed to produce a certificate in court for an electronic material to be played in court as evidence.
The lawyers affirmed: “The petitioners have not satisfied any of the conditions stipulated by the Evidence Act in relation to production of electronic record as evidence.
“Whereas the petitioners make this application orally at such an advanced stage of the proceedings without leave from court and further without a certificate as provided under Section 106 (B)(4) the same is opposed as the evidence is inadmissible,” the lawyers added.
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In her submissions, Ms Kahiu had asked the court to allow her to air the audio-visual equipment of the disputed film.
In a letter drafted by her lawyers, Ms Kahiu stated: “We kindly write this letter to request for audio-visual equipment to enable us play the ‘Rafiki’ film at the hearing, the matter is coming on April 4, your quick response will be highly appreciated.”
Ms Kahiu took the matter to court after Ezekiel Mutua banned the film from receiving public recognition or airing.
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According to Mutua, the film was banned because it is featuring a theme that is illegal in Kenya and intends to ‘corrupt the morals of Kenyans.’
“Rafiki, contains homosexual scenes that are against the law, culture and the moral values of the Kenyan people. The film seeks to overtly promote lesbianism,” Mutua asserted in a presser after the movie was produced.
‘Rafiki’ is a love story of two teenage girls who develop a romantic relationship which is rejected by their families and community.
In her defense, Ms Kahiu noted that the banning if the movie is contrary to the freedom of artistic creativity and that they are bound to suffer losses.
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