Ask a lawyer:
whether evidence obtained contrary to constitutional guarantees that it should be excluded
Sources to be used:
Constitution of Kenya, 2010: Article 50 (Right to a fair hearing), Article 31 (Right to privacy), Article 24 (Limitation of rights and fundamental freedoms)
Evidence Act (Cap 80), sections on admissibility
Relevant Case Law: Geoffrey Patrick Kiragu v Republic [2016] eKLR, Kuria & 3 Others v Republic [2002] 1 KLR 63
Constitutional Background
Article 50(4) of the Constitution of Kenya, 2010:
This is the most critical provision that deals directly with evidence obtained contrary to the Constitution. It states:
"Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights—
(a) shall be excluded if the admission of that evidence would render the trial unfair, or
(b) would otherwise be detrimental to the administration of justice."Article 24: This article outlines the conditions under which rights may be limited, insisting that any limitation must be reasonable and justifiable in an open and democratic society.
Article 31: This article guarantees the right to privacy, including the right not to have your person, home, or property searched, or your possessions seized except according to the law.
Evidence Act (Cap 80)
While the Evidence Act does not specifically deal with constitutional infringements, it lays the general framework for admissibility, demanding relevance and legality for any evidence tendered.
Case Law
1. Geoffrey Patrick Kiragu v Republic [2016] eKLR
Facts: The case involved evidence obtained through a search that did not adhere to constitutional standards.
Outcome: The court held that evidence obtained in violation of constitutional rights is generally inadmissible under Article 50(4). However, the court must further consider if excluding the evidence is necessary to ensure a fair trial or protect the administration of justice.
2. Kuria & 3 Others v Republic [2002] 1 KLR 63
Facts: The case revolved around evidence obtained during an illegal search.
Outcome: While prior to the 2010 Constitution, the reasoning offered (that evidence, even if illegally obtained, could be admitted if relevant) is now subject to the stricter requirements of Article 50(4). The case is still cited, however, for the balancing act between truth-seeking and upholding constitutional guarantees post-2010.
Application & Discussion
Under Kenyan law (post-2010), evidence obtained in violation of constitutional rights is not automatically excluded; the court must consider the circumstances.
The overriding consideration is whether admitting such evidence would render the trial unfair or undermine the integrity of the judicial process.
Thus, courts look at:
The seriousness of the constitutional breach (e.g., torture vs. technical error).
Whether alternative means to obtain the evidence existed.
The necessity of exclusion to uphold the rule of law.
Examples:
If a confession is obtained through torture or duress, it will almost always be excluded to safeguard the integrity of the justice system.
However, if an officer makes a minor procedural error (but no serious violation of rights occurred), the evidence might still be admitted.
Comparative Note
This approach mirrors global trends (see R v Collins [1987] 1 SCR 265 in Canada, and Mapp v Ohio, 367 U.S. 643 (1961) in the USA), where courts exclude evidence if constitutional rights are egregiously violated.
Conclusion
Evidence obtained contrary to constitutional guarantees should be excluded — but the determination is not absolute or automatic in Kenya. Courts are mandated by Article 50(4) of the Constitution to exclude such evidence only where its admission would render a trial unfair or otherwise be detrimental to the administration of justice.
This upholds both the rule of law and the rights of individuals while allowing courts flexibility to ensure fairness.
Links to Sources:
If you need further clarification or specific factual examples, please let me know!
Answered by mwakili.com