DATA PRIVACY, SPOUSAL SURVEILLANCE, AND THE

ADMISSIBILITY OF ILLEGALLY OBTAINED EVIDENCE IN

COURT, A COMPARATIVE ANALYSIS OF UGANDA AND
KENYA.

- INSIGHTS FROM THE KENYAN CASE OF RC V KKR PETITION NO.

E406 OF 2020 [2021]

BY KONGAI LYDIA

ABSTRACT
Data privacy, a fundamental human right safeguarding individuals
from unauthorized access, use, or disclosure of personal
information, faces challenges in the context of spousal
surveillance. This phenomenon, driven by suspicion, curiosity, or
malice, often involves the illicit acquisition of electronic
communications and device data. Such instances may yield
evidence admissible in legal proceedings, particularly in divorce or
custody cases.

This article investigates the admissibility of unlawfully obtained

evidence in court, using the Kenyan case of RC v KKR [2021]
eKLR as a focal point. The petitioner contested the use of hacked
emails, phone messages, and social media accounts by the
respondent in a divorce case, raising legal issues encompassing
jurisdiction, constitutional interpretation, exhaustion of remedies,
and the sub-judice rule. However, the primary focus lies on Article
50(4) of the Kenyan Constitution, empowering courts to reject
evidence violating rights in the Bill of Rights. The article scrutinizes
the legal framework and judicial precedents concerning the
admissibility of unlawfully obtained evidence, as illustrated by the
aforementioned case.

By extrapolating insights from the Kenyan case, this article draws

attention to Uganda's legal landscape, emphasizing the lax
enforcement of data protection laws. Article 27 of the
Constitution of Uganda 1995 protects individuals from unlawful
interference with personal data or communication. Additionally, the
Sections 7 & 9 of the Data Protection Act 2019 prohibits
unauthorized collection of personal and special data, with the
Computer Misuse (Amendment) Act 2022 unequivocally
prohibiting the sharing of unsolicited information unless serving the
public interest.

The RC v KKR case reaffirms the significance of Article 50(4) in

safeguarding the right to a fair hearing by protecting privacy and
property rights. The judgment serves as a critical reference point in
understanding the delicate balance between spousal surveillance
and individual privacy within the legal landscape.

In this article, I argue that spousal surveillance violates the right to

privacy of communication and the right to a fair trial, and that courts
should adopt a strict exclusionary rule for illegally obtained
evidence, unless there are compelling reasons to admit it. I also
suggest some measures to enhance data privacy and security for
individuals and couples.

INTRODUCTION
Data privacy is a fundamental human right that protects individuals
from unauthorized access, use, or disclosure of their personal
information. However, in some cases, spouses may resort to
spying on each other’s electronic communications and devices,
either out of suspicion, curiosity, or malice. Such spousal
surveillance may result in obtaining evidence that could be used in
court proceedings, such as divorce or custody cases. This raises
several legal and ethical questions, such as: Does spousal
surveillance violate the right to privacy of communication? How
should courts deal with the admissibility of illegally obtained
evidence in court? What are the implications of spousal
surveillance for the right to a fair trial? How can data privacy and
security be enhanced for individuals and couples?

In this case the respondent, the petitioner in a Divorce Cause filed

supplementary affidavit where he sought to adduce 68 pieces of
evidence, which the petitioner, RC objected to 45 pieces of that
evidence on grounds that they were obtained secretively,
intrusively, unauthorized and illegally through secretly installed
audio recording devices, unauthorized access to the petitioner’s
email and social media accounts, through secretly installed
surveillance cameras by a private investigator and all data obtained
without the petitioner’s authority.

Furthermore, as we unravel the legal intricacies of the Kenyan

case, our discussion extends to the legal landscape of Uganda,
shedding light on the challenges in enforcing data protection laws.
The Constitution of Uganda 1995, particularly Article 27, serves as
a clarion call safeguarding individuals from unlawful interference
with personal data or communication. Additionally, the Data
Protection Act 2019 lays down strict prohibitions against
unauthorized collection of personal and special data,
complemented by the unequivocal provisions of the Computer
Misuse (Amendment) Act 2022.

In examining the admissibility of unlawfully obtained evidence, this

article provides a comprehensive exploration grounded in the
protective umbrella of the right to privacy as dictated by the Kenyan
Constitution. The RC v KKR case, with its profound implications on
the delicate balance between spousal surveillance and individual
privacy, sets the stage for a deeper understanding of these legal
complexities. Through this exploration, we aim to navigate the
complexities of the legal landscape surrounding data privacy,
drawing critical insights from the courts decision to enrich our
understanding of the evolving dynamics in this field.

FACTUAL BACKGROUND OF THE CASE.

The factual background of the case of RC v KKR [2021] eKLR is
as follows;
The petitioner, RC, and the respondent, KKR, were married in 2012
and had two children together. In 2019, their marriage broke down
and the respondent filed for divorce and custody of the children in
the Chief Magistrate’s Court in Nairobi. The respondent alleged
that the petitioner had committed adultery and cruelty, and sought
to prove his case by using evidence obtained from hacking the
petitioner’s emails, phone messages, social media accounts, flash
drive, CCTV footage, and audio and video recordings.The
petitioner challenged the admissibility of the evidence, claiming that
it violated her right to privacy of communication and the right to a
fair trial under the Constitution of Kenya.
LEGAL ISSUES
One of the most important issues deliberated upon by the court in
this case was;
1. Whether the evidence illegally obtained may be admitted in
civil disputes in Kenya?

The Petitioner was of the position that evidence obtained illegally

was inadmissible both in civil and criminal cases. The respondent
vehemently denied this position stating that evidence obtained
under Article 50(4) of the Kenyan constitution did not apply to civil
cases.
Justice A. C. Mrim held as follows;

Article 50(4) states that “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.

The learned justice further referenced the Constitutional Petition

no. 58 of 2014 and petition no 209 of 2014 Okiya Omatatah
Okoiti & 2 others v Attorney General & 3 ors [2014]
In this case, it was the position of the respondents
that the petition could not be founded on illegally
obtained public documents in breach of the
constitution and the Evidence Act.
 Court observed that use of clandestine means
to procure information would heavily
compromise Articles 35 and violate the right to
privacy under Article 31.

By further buttressing his position on the conduct of litigators who

use fraudulent means to obtain evidence; the learned justice
referenced the case of Dubai Aluminium Co Ltd vs Al-Alawi
(1999) 1 WLR 1964 Rix J stated thus therefore;
It seems to me that if investigative agents
employed by solicitors for the purpose of
litigation were permitted to breach the
provisions of such statutes or to indulge in
fraud or impersonation without any
consequence at all for the conduct of the
litigation, then the courts would be going far
to sanction such conduct. Of course, there is
always the sanction of prosecutions or civil
suits, and those must always remain the
primary sanction for any breach of the
criminal or civil law. But it seems to me that
criminal or fraudulent conduct for the
purposes of acquiring evidence in or for
litigation cannot properly escape the
consequence that any documents generated
by or reporting on such conduct and which
are relevant to the issues in the case are
discoverable and fall outside the legitimate
area of legal professional privilege. It is not
as though there are not legitimate avenues
 which can be sought with the aid of the court
to investigate (for instance) banking
documents.

Furthermore, the learned justice referred to the case of Okiya

Omtatah Okoiti & 2 others v Attorney General & 4 others case
(supra)
Wherein the Court noted that Article 50 deals generally with ‘fair
hearing’ and accords ‘every person’ the right to fair hearing. As
such, it is not open for Courts to make a distinction that Article 50(4)
was only in respect of criminal cases.

Moreover, Under Article 50(4) if a court determines that admission

of evidence obtained in a manner that violates any right or
fundamental freedom in the Bill of Rights would be detrimental to
the administration of justice, the court may reject it irrespective of
whether it is in connection with a civil or criminal trial.

This view accords, with the Supreme Court decision in Njonjo Mue
& Another vs. Chairperson of Independent Electoral and
Boundaries Commission & 3 Others [2017] eKLR.

The Court addressed the limitation of the right.

It specifically referred to those instances where such information
relates to a matter under deliberation by a person or entity and
made following findings: -

This right to access information is, however, not absolute and there
may be circumstances in which a person may be denied particular
information.
The Supreme Court further spoke to the balance Courts must strike
while protecting litigants’ right of access to information under
Article 35 against the requirement of adherence to prescribed
procedure while seeking such information.

They observed as that there are procedures provided for under the
law through which any person who seeks to access information
should follow.

Citizen(s) have a duty to follow the prescribed procedure whenever

they require access to any such information. This duty cannot be
abrogated or derogated from, as any such derogation would lead
to a breach and/or violation of the fundamental principles of
freedom of access to information provided under the Constitution
and the constituting provisions of the law. It is a two-way channel
where the right has to be balanced with the obligation to follow due
process.

It would be detrimental to the administration of justice and against

the principle underlying Article 50(4) of the Constitution to in effect
countenance illicit actions by admission of irregularly obtained
documents. ( Okiya Omtatah Okoiti & 2 others v Attorney
General & 4 others (supra)

Circumstances for Exclusion of such Evidence.

The court thus held that, the evidence must be excluded only if it
(a) renders the trial unfair; or
(b) is otherwise detrimental to the administration of justice.
Evidence must be excluded in all cases where its admission is
detrimental to the administration of justice, including the subset of
cases where it renders the trial unfair. The provision plainly
envisages cases where evidence should be excluded for broad
public policy reasons beyond fairness to the individual accused.

A FAIR TRIAL IN THE MIDIST OF NEW EVIDENCE.

It was the courts finding that in determining whether the trial is
rendered unfair, courts must take into account competing social
interests. The court’s discretion must be exercised

“by weighing the competing concerns of

society on the one hand to ensure that the
guilty are brought to book against the
protection of entrenched human rights
accorded to accused persons”.

Relevant factors include the severity of the rights violation

and the degree of prejudice, weighted against the public
policy interest in bringing criminals to book.
The court held that, rights violations are severe when they stem
from the deliberate conduct of the police or are flagrant in nature.
There is a high degree of prejudice when there is a close causal
connection between the rights violation and the subsequent self-
incriminating acts of the accused. Rights violations are not severe,
and the resulting trial not unfair, if the police conduct was
objectively reasonable and neither deliberate nor flagrant.
Philomena Mbete Mwilu vs. Director of Public Prosecutions &
3 Others case (supra) also referred to S v Magwaza 2016 (1)
SACR 53

The learned justice further held that

In Kenya the reigning constitutional position in respect to the
applicability of Article 50(4) of the Constitution is that the
determination of the question whether to exclude illegally obtained
evidence is a matter within the jurisdiction of the trial Court.
However, in instances where a determination is to be made on
whether the illegally obtained evidence will render the trial unfair or
is otherwise detrimental to the administration of justice, then a
Constitutional Court has the mandate to deal with the matter.

The question which now begs an answer is whether in public policy

considerations the evidence is otherwise detrimental to the
administration of justice.
The High Court dealt with the public policy consideration in
Philomena Mbete Mwilu vs. Director of Public Prosecutions &
3 Others

LESSONS FOR UGANDA

With respect to the Computer Misuse Act of Uganda as amended
and the Data Protection Act;

1. Section 12 as amended by section 1 of the Computer

Misuse (Amendment) Act of 2022 is to the effect that
accessing or intercepting any program or another person’s
data or information, voice or video recording another person,
sharing any information about another person without
authorisation is an offence.
2. The case demonstrates the importance of protecting the right
to privacy of communication and the right to a fair trial, as
guaranteed by the Constitution of Kenya. The court
recognized that spousal surveillance infringes on these rights,
and that evidence obtained in such a manner should be
excluded, unless there are exceptional circumstances that
justify its admission, The similarity of this provision is
envisaged under Article 27 of the Constitution of Uganda
1995 on the right to privacy and a speedy trial under Art
28.
3. The case also highlights the need for enhancing data privacy
and security for individuals and couples, especially in the
digital age, where personal information and communication
can be easily accessed, hacked, or manipulated by third
parties.
4. The case urges the parties to seek counseling and mediation,
and to respect each other’s privacy and dignity.
5. The case also suggests some measures to prevent or reduce
the occurrence of spousal surveillance, such as using strong
passwords, encryption, and antivirus software, and avoiding
sharing or storing sensitive data on electronic devices or
platforms. Uganda can adopt and promote these measures,
as well as raise awareness and educate the public on the
importance and benefits of data privacy and security.
6. The case also demonstrates the challenges and complexities
of applying the constitutional provision on the admissibility of
evidence, Article 50(4) of the Kenyan Constitution, in civil
disputes. Uganda has a similar provision in Article 28(3) of its
Constitution, which states that “a person charged with a
criminal offence shall be entitled to a fair, speedy and public
 hearing before an independent and impartial court or tribunal
established by law; except with his or her consent, the hearing
shall not take place in his or her absence unless he or she so
conducts himself or herself as to render the continuance of
the proceedings in his or her presence impracticable and the
court or tribunal has made all reasonable efforts to have him
or her brought before it”.
However, there is no clear guidance or criteria on how to
determine when evidence obtained illegally may be admitted in
court, and what factors to consider in balancing the interests of
justice, the rights of the parties, and the public policy
considerations.

What Are Some Measures To Enhance Data Privacy And

Security For Individuals and Couples?
1. Use strong passwords, encryption, and antivirus software to
protect your electronic devices and platforms from
unauthorized access, hacking, or malware. You can also use
a password manager to generate and store your passwords
securely. For example, you can use [Microsoft Edge
Password Manager] to create and manage your passwords
across different devices and websites.
2. Avoid sharing or storing sensitive data, such as personal
information, financial records, or intimate communication, on
electronic devices or platforms that are not secure, reliable, or
trustworthy. You can also use a cloud service, such as
[OneDrive], to backup your data and access it from anywhere.
3. Respect your partner’s privacy and dignity, and do not spy on
their electronic communications and devices, unless you have
their consent or a valid reason. You can also communicate
 with your partner openly and honestly, and seek counseling
or mediation if you have any issues or conflicts in your
relationship.
4. Educate yourself and your partner on the importance and
benefits of data privacy and security, and the risks and
consequences of spousal surveillance. You can also learn
more about the laws and regulations on data privacy and the
admissibility of evidence in your country, and how to protect
your rights and interests in case of a legal dispute. For
example, you can read this article on [Data Privacy, Spousal
Surveillance, and the Admissibility of Illegally Obtained
Evidence in Court, A Comparative Analysis of Uganda and
Kenya].

By Kongai Lyia (PGDLP Candidate)

Disclaimer!!!
The article is based on the author’s research and analysis of the
legal issue of the admissibility of illegally obtained evidence in
civil disputes in Uganda and Kenya, with a focus on the case of
RC v KKR [2021] eKLR. The article is not intended to provide
legal advice or guidance, and the author is not liable for any
errors or omissions in the information or the results obtained
from the use of the information. The reader is advised to consult
a qualified legal professional before taking any action based on
the information in the article.