2. Brief facts of the case
This was a case on the admissibility of privileged documents as evidence.
In the case, a copy of a bond was adduced in court as secondary evidence.
However there was controversy regarding this evidence as the bond was
considered to be a privileged document that was to be held in confidentiality and
in original form only. The petitioner's solicitor however had a copy of the bond and
adduced it as secondary evidence. The evidence was admitted.
Parke B argued that," However a privileged document was obtained, even if it was
stolen, would not be sufficient grounds to reject it as evidence." His observations in
this matter were reiterated in the case of Carlcraft v Guest. Where an objection to
the tender of a secondary evidence, a privileged document, which had come to the
possession of the other party, was rejected.
3. The main issues that arose in this case:
1. Whether the manner in which the plaintiff secured the evidence was a possible
ground to reject its admission. This case law established common law's position
where evidence admission would not be rejected regardless of the manner in which
a party obtained it.
2. If illegally obtained evidence is admissible. Important to note in this case was
that privileged document did not provide rules for grounds of admissibility but still
provided a basis for immunity to the client.
4. Principles established in the case
Chief justice Goddard concluded that the necessary test to be considered
on whether evidence is admissible is whether the evidence is relevant to
the fact in issue. If it's relevance to the fact in issue makes it admissible,
then the court is least concerned with how the evidence was gotten.
5. Linkage of the established principle to Kenyan law
Kenyan jurisprudence departs from the principle established in Lloyd v mostyn
(1842) as pertaining to admissibility of privileged documents that were illegally
obtained. Kenyan courts will not admit into evidence privileged documents that were
illegally or irregularly acquired as that would contradict article 50 of the constitution
on the right to fair trial as well as article 31 of the constitution on the right to privacy.
This is illustrated in the following two cases:
6. Okiya Omtatah Okoiti & 2 Others v
Attorney General & 3 others [2014] eKLR
Kenya Railways Corporation successfully argued for a number of documents, which it
said were obtained in a clandestine manner by activist Okiya Omtatah, to be expunged
from the court record. Justice Isaac Lenaola (now a judge of the Supreme Court)
expunged the documents submitted by Mr. Omtatah and the Law Society of Kenya (LSK)
after KRC questioned how they obtained the confidential documents on the SGR deal,
these documents were in reference to commercial contracts, professional privilege and
may have even compromise diplomatic privilege because of the diplomatic
communication and correspondence between Government officials
The court was of the opinion that The Petitioners cannot simply rely on information that
they obtained in unclear circumstances and to allow them to do so would defeat the
very essence of Article 35 of the Constitution and the purposes it intends to achieve as
well as the rights of privacy enshrined in Article 31 of the Constitution.
7. The court also issued a declaration that the use and production of alleged “public
documents” by the Petitioners without disclosing their source and/or authenticity is
a breach of the Cross Petitioner’s right to a fair hearing as guaranteed by Article 50
of the Constitution, and subsequently issued an order expunging from the record
all the documents comprising the confidential and privileged documents.
This ruling was affirmed on appeal by a bench of three judges which upheld Justice
Lenaola’s decision saying, “However well intentioned “conscientious citizens” or
“whistle-blowers” might be in checking public officers, there can be no justification,
as pointed out by the Supreme Court, for not following proper procedures in the
procurement of evidence. We do not have any basis for interfering with the
decision of the High Court to expunge the documents in question.”
8. Jackline Chpkemoi Kimeto v Shafi Grewal
Kaka & 3 others [2019] eKLR
applicants was seeking to have the court expunge documents (email
correspondences) as contained in the Supplementary List of Documents filed on
account of the same having been obtained illegally and being subject to privileged
information.
Privileged Information is defined under section 130 – 137 of the Evidence Act deals
with privilege and provides for instances when communication between certain
categories of persons can be inadmissible in proceedings for being privileged.
These include communication during marriage, official communication to a public
officer, communication between an advocate and his client and communications
between advocates.
9. The court held that indeed the emails were illegally obtained evidence as they were
between an Advocate and Client and official communication among officers of the
respondent. They are covered under privileged information and as such cannot be
used as evidence in Court by virtue of Section 131 and 132 of the Evidence Act. The
court expunged the documents while relying on the case of Susan Wariara Kariuki
v Diakonie Katastrophenhilfe [2016] eKLR where Ndolo J. held that:
“It is not in contest that the letter in issue contains communication from an
Advocate to his client and under Section 134 of the Evidence Act, such
communication is privileged and can only be produced under exceptional
circumstances. In addition, there is now firm jurisprudence from this Court that an
employee may not exhibit restricted information belonging to their employer
without authorization of the employer or an order by the Court”
