While it is trite that all admissible evidence must be relevant, is it the case that all relevant evidence must be admitted? In this article, we embark on a discussion on what is considered illegally obtained evidence under Kenyan law in civil cases and how the Supreme Court has treated illegally obtained evidence in recent decisions.

The Common Law Position

Prior to the promulgation of the Constitution of Kenya, 2010 (the Constitution), Kenyan Courts largely looked to common law on how to deal with illegally obtained evidence in civil cases. At common law, there was no prohibition on adducing any evidence before a court of law, provided that it was relevant to the matters in controversy.

Summing up this position is the holding of the Privy Council in the case of Kuruma, Son of Kaniu v The Queen (1955) AC 197 where it was held “…the test to be applied both in civil and in criminal cases in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the Court is not concerned with how it was obtained.” The position of the Privy Council in the Kuruma case relied upon the decision in Reg. v Leatham (1861) 8 Cox C.C.C 498 where it was iterated rather starkly, “It matters not how you get it, if you steal it even, it would be admissible in evidence.”

Similarly in Helliwell v Piggot-Sims (1980) FSR 356 it was held that “…so far as civil cases are concerned, it seems to me that the Judge has no discretion. The evidence is relevant and admissible. The Judge cannot refuse it on the ground that it may have been unlawfully obtained in the beginning.”

The Supreme Court of the United States of America also had an opportunity to weigh in on the admissibility of illegally obtained evidence in the case of Olmstead v United States (1928) 277 US 438 where it held “…the common law did not reject relevant evidence on the ground that it had been obtained illegally.”

The position set out in the foregoing authorities, i.e., that all relevant evidence is admissible regardless of how it was obtained, has formed the basis of many decisions by Kenyan Courts on the issue of illegally obtained evidence in civil cases, at least until the year 2010.

The promulgation of the Constitution however brought in a different perspective on the issue of illegally obtained evidence. In particular, the Constitution provides as follows in Article 50 (4):

“Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair or would otherwise be detrimental to the administration of justice.”

This provision departs from the common law position by providing exceptions to the rule that all evidence, if relevant, is admissible.

Supreme Court Decisions

We now consider two (2) decisions of note handed down by the Kenyan Supreme Court in which the Court considered the issue of illegally obtained evidence with respect to public documents being Njonjo Mue & Another v Chairperson of Independent Electoral and Boundaries Commission & 3 Others (2017) eKLR (the Njonjo Mue case) and Kenya Railways Corporation, the Attorney General and The Public Procurement Oversight Authority v Okiyah Omtatah Okoiti, Wyclife Gisebe Nyakini, The Law Society of Kenya and China Road and Bridge Corporation (2023) eKLR (the SGR case).

The Njonjo Mue Case

The Njonjo Mue case was a Presidential Election Petition which sought to challenge the results of the Presidential Election held on 26th October 2017, whereby the Independent Electoral and Boundaries Commission (IEBC) declared H. E. Uhuru Muigai Kenyatta the President elect. In urging their case, the Petitioners sought to rely on internal memos (the Memos) sent to the Commissioners and staff members of the IEBC. H. E. Kenyatta filed an application urging the Court to expunge the Memos from the Petition, on the basis that the documents had been illegally obtained.

In so contending, H. E. Kenyatta argued that the IEBC had issued a clarification indicating that the contents of the Memos were neither discussed nor sanctioned by it and that it only came to know about the Memos from the media. It was further contended that the Memos raised matters which were yet to be resolved by the IEBC, were not authenticated, were produced in piecemeal and taken out of context, with a view to aid the Petitioners’ case.

In rendering its decision, the Supreme Court considered that “…information held by the State or State organs, unless for very exceptional circumstances, ought to be freely shared with the public. However, such information should flow from the custodian of such information to the recipients in a manner recognized under the law without undue restriction to access of any such information.” The Supreme Court ultimately made a finding that the Petitioners had failed to account for how they accessed the Memos and had breached the provisions of sections 27 of the IEBC Act and Articles 24 (1) and 35 (1) of the Constitution, pertaining to access to information. As such, the Memos were expunged from the Petition.

The SGR Case

The SGR case is the Supreme Court’s latest pronouncement on the issue of illegally obtained evidence. This case commenced in the High Court where Okiya Omtatah Okoiti, Wyclife Gisebe Nyakina and the Law Society of Kenya (the 1st, 2nd and 3rd Petitioners) filed Petitions against the Kenya Railways Corporation, the Attorney General, the Public Procurement Oversight Authority and China Road and Bridge Corporation (the 1st, 2nd, 3rd and 4th Respondents)

challenging the procurement process for the construction of the Standard Gauge Railway (SGR) contending inter alia that the single sourcing or direct procurement for SGR was illegal and that the entire procurement process run afoul various sections of the Public Procurement and Asset Disposal Act of 2005 (PPDA) and the Public Finance Management Act, 2012. Of relevance to this article, is that the petitioners sought to rely on various correspondence between officers of government institutions, the financier of the SGR Project, the 1st, 2nd and 4th Respondents, and the Office of the Deputy President (the Correspondence). The Respondents filed a Cross-Petition seeking inter alia the expungement of the Correspondence contending that their production was contrary to Articles 31 and 35 of the Constitution, and section 80 of the Evidence Act (Cap. 80) Laws of Kenya.

After hearing the Petitions, Lenaola, J (as he then was) dismissed the Petition and allowed the Cross-Petition to the extent of expunging the Correspondence. On appeal, the Court of Appeal affirmed the High Court’s finding on the issue of inadmissibility of illegally obtained evidence. However, the Court of Appeal allowed the Petition to the extent of declaring that the 1st Respondent had failed to comply with Article 227 (1) of the Constitution and sections 6 (1) and 29 of the PPDA.

Finding themselves partially aggrieved by the decision of the Court of Appeal, the Respondents filed Petitions of Appeal in the Supreme Court. In response, the 1st and 2nd Petitioners filed a Cross-Appeal challenging the Court of Appeal’s findings, notably the decision to expunge the Correspondence. In defending their position, the 1^st and 2nd Petitioners intimated that they obtained the Correspondence from whistleblowers who feared for their safety and thus required anonymity in exchange for providing the highly confidential documents. The Supreme Court found this reason unacceptable, citing the existence of bodies such as the Witness Protection Agency (under section 3A of the Witness Protection Act, 2006) that would have protected the whistleblowers had they provided the Correspondence through the right channels. Further, the explanation was found wanting as it was bereft of details.

Interestingly, some of the Correspondence consisted of documents tabled before Parliament and were being debated in some of Parliament’s committees. This, according to the 1st Petitioner, made the impugned documents public documents. However, citing Parliamentary privilege and the power of Parliament to call for evidence including documents under Article 125 of the Constitution, the Supreme Court held that the impugned documents did not mutate into public documents for this reason, and would thus remain inadmissible.

Conclusion

In a marked departure from the previously prevailing common law position that freely allowed for adducing of relevant evidence no matter how it was obtained, the position of Kenyan Courts, as pronounced by the Supreme Court in the foregoing decisions, is that the production of illegally obtained evidence in Court is prohibited, more so in the case of public documents that are produced in violation of the law. It thus appears that in balancing the competing interests, the Court lends greater weight to safeguarding procedural fairness than what the probative value of the evidence might be. The message from the Supreme Court may thus be aptly summarized thus: The Courts will not look favourably upon a litigant who rushes to Court alleging the violation of the Constitution while relying on evidence obtained in violation of the very same Constitution.