The information contained in the above segment is not part of the judicial opinion delivered by the Court.
Ndungu Robert QNS;…Having inherited a common law legal tradition from Britain, the rule in Kenya has been that illegally obtained evidence as a general rule is admissible so long as it is relevant with introduction of article 50 4 of the constitution of Kenya and decided cased coming after the promulgation of constitution of Kenya discuss the scope of the general rule above.
Article 50 4 state as follows; Evidence obtained in a manner that violates any right or fundamental freedom in the bill of rights shall be executed if the admission of that evidence would render the trial unfair or would otherwise be detrimental to the administration of justice.
Whether and in what circumstance courts should exclude illegally or improperly obtained evidence is one of the most hotly contested questions in criminal procedure and evidence law.
Also there is still struggle on determination of whether the idea of admissibility or inadmissibility of illegally obtained evidence should be governed by rules of law or executed by judicial discretion.
Courts conceive its function as that of doing justice between the parties according to the evidence the parties choose to present; from this standpoint it is immaterial how the parties come by their evidence, any unlawfulness in obtaining the evidence can be left to the 1 Article 50 4 of Kenya constitution This is a privilege that is well spelt out in the Kenyan constitution against self-incrimination thus any court process that seek to adduce self-incriminating evidence given through compulsion if unjust in unfair to the accused who courts priority is to accord justice; in adducing search evidence it amount to prejudice of the rights of the accused.
It is worth attention that improperly obtained evidence in involving unfair treatment of the accused before trial may compromise the legitimacy of the verdict. However, where the evidence improperly obtained is not confession evidence or eyewitness identification evidence, the scale of the first problem is much reduced.
A great deal of evidence outside these two categories is highly reliable and highly probative. Based on the award of damages to his respondent applicant sought to the high court to overrule the judgment by the arbitrator and review the case by dropping some of the evidences that were detrimental to both applicant and the general public.
His submission was that the documents attached to the affidavit of the respondents were documents made in breach of order 18 rule 3, in that the deponent did not disclose the source of their documents which were privilege and confidential to the adverse party and that public policy was against parties obtaining public documents in proving their case.
Evidence were inadmissible because they were meant to be withheld to protect the interest of the public. In addition evidence obtained through entrapment by state agent is illegal and thus inadmissible in a criminal case…. Moreover the ruling as from judge warsame on 30th Septemberstood firm in discrediting illegal evidence obtained through or by entrapment.
The high court through j. He equipped himself with a tape recorder to assist him in his investigation report about the acquisition of the land.
Further the discussion advanced seeking in striking this deal of this land transaction. In addition, confessions made by an accused that was or may have been obtained by oppression or in consequence of anything said or done which was likely in the circumstances, to render unreliable any confession which might be made by him in consequence thereof; oppression for these purpose is defined to include torture, in respect of which there is a broader common law exclusionary principle also inhuman or degrading treatments contrary to the Kenyan constitution under bill of rights which also further designate rights against self- incriminating evidence.
It is also better to understand that evidence produced by unlawful search for example may be highly incriminating.
However, outside the problematic areas of confessions and eyewitness identification evidence, may often has a high degree of probative value. The value for a search that filch out incriminating evidence is unlikely to be outweighed by prejudicial effect, whether prejudice is defined in terms of tendancy to cause the fact finder significantly overestimated to probative value of the evidence, or tendency to convict the accused for reasons unrelated to the probative value of the evidence.
Under section of criminal procedure code provides courts with power to issue search warrant. However police act cap 84 sec 20 authorizes a police officer upon reasonable suspicion to execute a search without a search warrant………sec 20 of police act state as follows.
Inclusionary rule for illegally obtained evidence usually go into details of examining the relevancy of the evidence obtained and its probative value over the prejudicial effect capable of mounting to the defense and to the noble purpose of courts to administer justice.
Nevertheless court may note deny to adduce illegally obtained evidence where the evidence is substantially relevant; in the case of. R Vs Warickshall, a woman was charged as an accessory after the fact to theft ans as a receiver of the stolen goods.
She was improperly induced to make a confession in the course of which she said that the property in question was in her lodgings where it was found. Counsel for the accused argued that the evidence of finding the stolen property in her custody should be excluded since it was obtained in consequence of the inadmissible confession.The Exclusion of Illegally Obtained Evidence: A Study Pape r prepared by the Law of Evidence Project Author: Law Reform Commission of Canada Created Date.
Law and practice of evidence in Kenya by Kyalo Mbobu. Competence and compellability -- Public policy and privilege -- Illegally obtained evidence -- Confessions -- Documentary evidence -- Hearsay evidence -- Evidence of character -- Opinion evidence -- Corroboration -- Examination of witnesses.
Kenya Law / Blog / Case Summary: From the evidence presented by the parties, the court concluded that MRC was a political movement as central to its objective is secession. to cancel a land title by way of gazette notice and that only a court could do so when the title in question had been obtained through fraud and or mistake and only.
Illegally obtained evidence in Kenya Essay Question ‘There is Some of the common examples of illegally obtained evidence are such evidence obtained in violation of the constitution and in breach of other statutes.
A common way in which evidence is obtained illegally is through illegal searches and illegal seizures e.g. breaking. illegally obtained evidence in kenyan legal system 27 Apr, | General. Evidence which is obtained by means or acts which are illegal or against the law is said to be obtained ph-vs.com of the common examples of illegally obtained evidence are such evidence obtained in violation of the constitution and in breach of other statutes.
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Admissibility of illegally-obtained evidence United Kingdom The recent fiercely contested takeover battle for Marks & Spencer was enlivened by highly publicised allegations of illegal espionage and highlighted the potential pitfalls of the improper use of private investigators.