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Ask a lawyer:
whether evidence obtained contrary to constitutional guarantees that it should be excluded

1. Key sources I will rely on

Constitution of Kenya, 2010

  • Article 31 – Privacy
    Constitution (PDF – Parliament) ↗

  • Article 35 – Access to information

  • Article 50(1) – Right to a fair hearing

  • Article 50(2) – Rights of an accused person

  • Article 50(4) – Exclusion of evidence obtained in violation of rights

  • Article 25(c) – Fair trial as a non-derogable right

Statutes

Leading Kenyan cases (with links)

  1. Njonjo Mue & another v Chairperson of IEBC & 3 others (SC, 2017) – internal IEBC memos expunged
    https://new.kenyalaw.org/akn/ke/judgment/kesc/2017/28 ↗

  2. Kenya Railways Corporation & 2 others v Okoiti & 3 others (SC, 2023) – SGR documents, public records and Article 50(4)
    https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/38/eng ↗

  3. Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others (CA, 2020) – Article 50(4) applies in civil/constitutional cases
    https://new.kenyalaw.org/akn/ke/judgment/keca/2020/589/eng ↗

  4. Chitembwe v Tribunal Appointed to Investigate into the Conduct of Hon. Justice Chitembwe (SC, 2023) – “dual threshold” under Article 50(4)
    https://kenyalaw.org/caselaw/cases/view/277726/ ↗

  5. David Ogolla Okoth v Chief Magistrate’s Court, Kibera & 2 others (HC, 2016) – early, influential Article 50(4) test
    https://new.kenyalaw.org/akn/ke/judgment/kehc/2016/4483/eng ↗

  6. RC v KKR (HC, 2021) – spouse hacking phones and emails, privacy and exclusion of digital evidence
    https://new.kenyalaw.org/akn/ke/judgment/kehc/2021/12803 ↗

  7. Philomena Mbete Mwilu v DPP & 3 others; ICJ–Kenya (Amicus) (HC, 2019) – big comparative discussion on illegally obtained evidence
    https://new.kenyalaw.org/akn/ke/judgment/kehc/2019/11366/eng ↗

  8. Robert Muli Matolo v Republic (HC, 2015) – illegality not limited only to torture/confessions
    https://new.kenyalaw.org/akn/ke/judgment/kehc/2015/1800/eng ↗

  9. Republic v T M N (HC, 2015) – confessions and fair trial safeguards
    https://new.kenyalaw.org/akn/ke/judgment/kehc/2015/3648/eng ↗

  10. RC v KKR; Njenga v DIB Bank; Kinyanjui v Scania; Maluki v Tiny Totos; Pebler Holiday Homes Ltd v Mwadago – modern applications in civil, family, employment, and land contexts.

2. The starting point: what does the Constitution say?

The core provision is Article 50(4) of the Constitution of Kenya, 2010:

“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.”

So, in Kenya the question is not simply “Was the evidence obtained illegally?” The question is:

  1. Was a constitutional right violated in the way the evidence was obtained? and

  2. Would admitting that evidence make the trial unfair, or be detrimental to the administration of justice?

Both conditions must be satisfied before the court excludes the evidence.

Other rights often involved include:

  • Article 31 – Privacy (home, property, communications)

  • Article 49 & 50(2) – rights of arrested and accused persons (e.g. no torture, right to counsel, fair trial)

  • Article 35 – the proper way to get information from the State

  • Article 25(c) – the right to a fair trial is non-derogable

3. The modern Kenyan test: the “dual threshold”

The Supreme Court in Chitembwe v Tribunal and the High Court in David Ogolla Okoth describe Article 50(4) as creating a two-step (dual) test:

  1. Rights-violation limb

    • The evidence must have been obtained in a manner that violates a right or freedom in the Bill of Rights (e.g. illegal search violating Article 31, beating a suspect to get a confession (Articles 25, 29, 50), hacking a spouse’s private messages (Article 31)).

  2. Fairness / administration-of-justice limb

    • Even if there was a rights violation, the evidence is only excluded if admitting it would:

      • Render the trial unfair, or

      • Be otherwise detrimental to the administration of justice.

This means:

  • Not every illegality leads to exclusion, but

  • Courts must seriously consider exclusion where the violation is serious and admission would damage fairness or public confidence in the justice system.

4. Is exclusion automatic whenever evidence is unconstitutionally obtained?

No. Kenyan courts have been very clear that exclusion is not automatic.

(a) High Court position – David Ogolla Okoth

In David Ogolla Okoth v CM’s Court, Kibera & 2 others (2016), petitioners complained about a warrantless seizure of property. The Court held:

  • There is “inherently an exclusionary rule under Article 50(4)”,

  • But the mere fact that evidence was obtained improperly does not automatically stop the criminal trial or lead to automatic exclusion.

  • The court must always apply the two-limb test: rights violation + unfairness/detriment.

(b) Employment & civil cases – balancing approach

Cases like Njenga v DIB Bank and RC v KKR show courts:

  • Recognise a “general revulsion” against irregularly obtained evidence;

  • But insist that a party seeking exclusion must go further and show specific prejudice to fair trial or to the integrity of the justice system.

Courts routinely weigh:

  • How serious was the rights violation?

  • Was there bad faith (e.g. spying, hacking, theft)?

  • How important is the evidence to getting to the truth?

  • Are there lawful ways the same information could have been obtained?

  • What message will admission or exclusion send about respect for the Constitution?

5. Does Article 50(4) only apply in criminal cases?

Earlier, some judges thought so. In United Airlines Ltd v KCB (CA, 2017), the Court of Appeal suggested Article 50(4) is mainly for criminal trials, because it mentions a “trial” and sits in a provision that also protects “an accused person”.

That view has changed.

In Okiya Omtatah Okoiti & 2 others v AG & 4 others (CA, 2020), which dealt with SGR procurement:

  • The Court of Appeal re-examined its earlier position.

  • It held that Article 50(1) speaks of “every person” and the concept of a “fair hearing” applies both in criminal and civil/constitutional matters.

  • It concluded that Article 50(4) can apply in any trial or hearing where admission of rights-violating evidence would compromise fairness or the administration of justice.

The Supreme Court has since confirmed this approach:

  • Njonjo Mue – presidential election petition (public-law context).

  • Kenya Railways v Okoiti – constitutional/public law dispute over SGR procurement documents.

  • Chitembwe – disciplinary / quasi-judicial proceedings.

High Court and specialised courts (Family, ELRC, ELC) also apply Article 50(4) in divorce, employment, and land disputes, e.g.:

  • RC v KKR – divorce: spouse hacked and secretly recorded the other spouse.

  • Njenga v DIB Bank – employee used internal bank emails.

  • Pebler Holiday Homes Ltd v Mwadago – WhatsApp chats with an advocate.

So today, the settled position is:
Article 50(4) applies across the board – criminal, civil, constitutional and disciplinary proceedings.

6. How the rule is applied in practice (with examples)

(a) Criminal law: confessions and searches

  1. Robert Muli Matolo v Republic (2015 HC)

    • The trial court thought Article 50(4) only covered torture/confession-like situations.

    • The High Court held that was too narrow: any rights violation in obtaining evidence (not just torture) can trigger Article 50(4).

  2. Republic v T M N (2015 HC)

    • Concerned the admissibility of a confession.

    • The court emphasised that confessions recorded without respecting constitutional and statutory safeguards (e.g. Confessions Rules 2009, presence of counsel, no coercion) must be excluded where their admission would render the trial unfair.

  3. Yaqoob & 6 others v Republic (HC, 2025 – survey case)

    • Reviews post-2010 jurisprudence and clearly states the old case of Kuruma s/o Kaniu (which said relevance is enough, even if evidence was illegally obtained) is no longer good law in Kenya after the 2010 Constitution.

(b) Public-law and state documents

  1. Njonjo Mue & another v Chairperson of IEBC & 3 others (SC, 2017)

    • Petitioners produced internal IEBC memos they had obtained informally (leaks), not through Article 35/Access to Information Act.

    • The Supreme Court held that:

      • Access to such information must follow the proper legal procedures.

      • Using leaked documents violated IEBC’s rights (privacy, property).

      • Admission would be detrimental to the administration of justice.

    • Result: the memos were expunged from the record under Article 50(4).

  2. Kenya Railways Corporation & 2 others v Okoiti & 3 others (SC, 2023)

    • Petitioners relied on government letters, contracts, feasibility reports about the SGR.

    • They had not made a formal request under Article 35, and the documents were not produced in the manner required by the Evidence Act (originals/certified copies).

    • The SC held:

      • Evidence Act applies even in constitutional petitions.

      • The way the documents were obtained breached privacy and proper procedures.

      • Admitting them would “sanitise illicit actions” in obtaining evidence and be detrimental to the administration of justice.

    • Result: such documents were ruled inadmissible and excluded.

(c) Private digital snooping – family and civil matters

  1. RC v KKR (HC, 2021 – divorce)

    • One spouse (KKR) hacked and intercepted the other’s phone, social media, emails, and recorded calls secretly.

    • Court found:

      • These acts violated Article 31 (privacy) and dignity.

      • Some of the most intimate recordings (private calls, conversations with her child, medical reports) could not be admitted without rendering the proceedings unfair and seriously harming the administration of justice.

    • Result: those items were declared inadmissible under Article 50(4).

    • However, the court allowed more neutral documents where the privacy interest was lower and the public interest in truth was stronger – showing the case-by-case balancing.

  2. Pebler Holiday Homes Ltd v Mwadago & 2 others (ELC, 2024)

    • Advocate served court papers by WhatsApp (which is allowed) but then the client wanted to use the service-related WhatsApp chats as substantive evidence of fraud.

    • Court held this would be unfair, because:

      • The defendant’s “informal” responses during service are not meant to be formal testimony.

      • Using them against him would compromise the fairness of the trial.

    • Under Article 50(4), the WhatsApp evidence was struck out.

(d) Workplace secret recordings

Cases like Njenga v DIB Bank, Kinyanjui v Scania, and more recently Juma v Telkom Kenya explore employees secretly recording meetings or keeping internal documents:

  • Courts accept that secretly obtained evidence can infringe privacy/confidentiality.

  • But they often do not exclude everything:

    • They examine the content (is it purely workplace/professional, or deeply personal?).

    • They ask whether admission would realistically make the hearing unfair, or whether excluding it would hide serious wrongdoing.

  • Result: often a mixed outcome – some items are admitted, others excluded.

7. How Kenyan law has moved away from the old common-law rule

Before the 2010 Constitution, courts followed the English decision in Kuruma son of Kaniu v R (1955), which basically said:

If evidence is relevant, it is admissible, even if it was obtained illegally.

That approach:

  • Put truth-finding above almost everything else, and

  • Did not really care how the evidence was obtained.

After 2010:

  • Article 50(4) constitutionalised the idea that how evidence is obtained matters, because:

    • Courts must protect the Bill of Rights, and

    • The integrity of the justice system is a public interest in itself.

High Court decisions such as Mwilu v DPP (2019) do a detailed survey of Kuruma and other common-law authorities and conclude:

  • Those approaches have been overtaken by the constitutional standard.

  • Today, relevance alone is not enough; evidence obtained in violation of rights can and often must be excluded if it fails the Article 50(4) test.

8. So, should unconstitutionally obtained evidence be excluded?

Putting it all together, the Kenyan position is:

  1. Yes, it often should be excluded, but not automatically.

  2. The court must first find a violation of a constitutional right in the way the evidence was obtained (Article 31, 35, 49, 50, etc.).

  3. The court must then be satisfied that admitting this evidence would:

    • Make the hearing unfair to one party, or

    • Be detrimental to the administration of justice, e.g.:

      • Encouraging hacking, theft or leaks of confidential documents;

      • Undermining legal procedures for access to information;

      • Normalising torture/coercion in criminal investigations;

      • Destroying public confidence in the courts.

Where those two elements are present, courts in Kenya regularly exclude the evidence – as seen in Njonjo Mue, Kenya Railways, RC v KKR, Pebler Holiday Homes, and others.

Where the violation is minor or technical, and admission would not realistically affect fairness or justice, courts may admit the evidence but criticise the manner of obtaining it, or award other remedies.

9. Practical angle – if you are arguing this issue

If you are preparing for an exam, a memo, or an actual case, you might:

  • For exclusion:

    • Identify the exact right breached (privacy, fair trial, dignity, etc.).

    • Show how the manner of obtaining evidence was unjustifiable (no warrant, no request under Article 35, hacking, deception).

    • Explain concretely how admission will:

      • Prejudice your ability to have a fair hearing (e.g. “we cannot meaningfully challenge it”; “it puts us in a catch-22”), or

      • Send a message that the court condones unconstitutional conduct (citing Njonjo Mue, Kenya Railways, RC v KKR, Pebler).

  • Against exclusion:

    • Argue that any breach was minor or technical,

    • Stress the high probative value of the evidence and the importance of truth, and

    • Show that admission will not prejudice fairness or harm the justice system (borrowing language from David Ogolla Okoth, Njenga v DIB Bank, Chitembwe).

If you tell me whether you are dealing with a criminal case, a civil suit, a family matter, or an exam question, I can help you structure a tailored answer (or even a model essay) using the specific type of evidence you have in mind – for example: illegal searches, secret recordings, leaked government documents, or hacked social media messages.

Answered by mwakili.com