**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:
- [Constitution of Kenya, 2010 - Article 50](http://kenyalaw.org/kl/index.php?id=398)
- [Geoffrey Patrick Kiragu v Republic [2016] eKLR](http://kenyalaw.org/caselaw/cases/view/121053/)

If you need further clarification or specific factual examples, please let me know!

### 1. Key sources I will rely on

**Constitution of Kenya, 2010**

- **Article 31 – Privacy**  
  [Constitution (PDF – Parliament)](https://www.parliament.go.ke/sites/default/files/2023-03/The_Constitution_of_Kenya_2010.pdf)  
- **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**

- **Evidence Act, Cap 80** – especially on admissibility and proof of documents (ss. 80–81 re public documents)  
  <https://www.kenyalaw.org/lex//actview.xql?actid=CAP.%2080>  
- **Access to Information Act, No. 31 of 2016** (implementation of Article 35)  
  <https://www.kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/AccessToInformationAct_No31of2016.pdf>  

**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.  
    - RC v KKR: <https://new.kenyalaw.org/akn/ke/judgment/kehc/2021/12803>  
    - Njenga v DIB Bank: <https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1549/eng>  
    - Pebler Holiday Homes: <https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6027/eng>  

---

## 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.

whether evidence obtained contrary to constitutional guarantees that it should be excluded

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

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