Illegally Obtained Evidence

Question 1

MANDATORY INCLUSION

Answer 1

1. MANDATORY INCLUSION - r v leatham
   Llyold v Mostyn (1842): that test is where evidence is relevant to the matter in issue irrespective of how it was obtained. -PROBATIVE VALUE
   2 exceptions

R v Sang (1980- Kenyan case)- judicial discretion to exclude admissible evidence does not extend to excluding evidence of a crime on grounds that it was investigated by an agent provocateur (undercover agents).

Question 2

2. MANDATORY EXCLUSION

Answer 2

2. MANDATORY EXCLUSION -The exclusionary rule is grounded in the 4th amendment in the bill rights (US constitution) to protect citizens from illegal searches and seizures.

Question 3

KENYAN APPROACH

evidence is inadmissible if it is: 3
confusion: 3 cases

Answer 3

3. KENYAN APPROACH - a.50(4)
   Implication of A.50(4):
4. Generally, evidence obtained in a manner that violated the bill of rights is excluded (test of illegal/ improperly- constitutional test)
5. Evidence obtained in a manner that does not violate the bill of rights is admissible
6. IOE is excluded if its admission would render the trial unfair
7. IOE is excluded, if it would be detrimental to the administration of justice (e.g., work of the police or the court is inhibited- concerned with the effect of admitting IOE to the administration of justice)
8. IOE may be admissible, if it does not render the trial unfair or detrimental to the administration of justice.

evidence is inadmissible if it is:

1. attained through torture
2. invasion of privacy; e.g search with no warrant S.118-121 CPC)
3. compelled (A.49.1d) not allowed.

confusion:
1. - Nicholas Randa Owano Ombija v judges and magistrates vetting Board (2015) - Common law principles shows that evidence, if relevant, is admissible even if it has been illegally obtained (NOP)

2. John Muriithi & 8 other v Registered Trustees of sisters of mercy and Anor (2018) - (NO) this is not the correct stand because it is ignoring one of the conditions also she has combined the common law approach with stating relevance and use of or.
3. • In united airlines limited v Kenya commercial bank limited (2017): the court rejected the contention that IOE is amissible in criminal law as long as it is relevant. The court stated that the COK has changed that position (YES)