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Electronic messages and digital materials are admissible in legal proceedings.
Hello Wakili,
I discovered recently that my estranged husband bugged my phone. He has recordings of my phone calls, which he wants to present as proof to get full custody of our children, once we complete the divorce case. I am just wondering whether such recordings are admissible in court. Can I sue him for bugging my phone?
Dear reader,
Your clarification that divorce cases are separate from petitions seeking custodial rights is well articulated. Having noted these legally distinct processes, it is essential to remember that court cases involving children must be guided by one fundamental principle: the protection and promotion of the child’s best interests. This principle is enshrined in Section 8 of the Children’s Act and fulfils the constitutional obligations set forth in Article 53(2) of the Constitution.
You have raised three fundamental issues that test the justice system’s ability to deliver fair and reliable adjudication. Your first question concerns whether it is appropriate and necessary to collect evidence in preparation for a case one may wish to pursue in court. The answer is straightforward: cases are won based on the weight and credibility of the evidence presented to the court.
The Evidence Act permits the admissibility of digital and electronic materials as evidence while simultaneously requiring that such evidence meet credibility standards. This creates a crucial distinction between admissibility and lawful acquisition—both of which must be satisfied.
Section 78A specifically addresses electronic and digital evidence, establishing that electronic messages and digital materials are admissible in legal proceedings. The section further directs courts not to deny admissibility solely because the evidence is not in its original form.
Section 106B of the Evidence Act establishes the requirements that confer credibility on electronic and digital evidence. Electronic evidence must meet specific conditions to demonstrate credibility. Because electronic materials can be easily manipulated, the law requires authentication measures to enhance credibility.
Does it matter how evidence is collected, even if it is legally admissible in court? The answer is unequivocally yes. Moral and legal considerations: Martin Luther King Jr., in his Letter from Birmingham Jail, reminds us that it is wrong to use immoral means to achieve moral ends, and equally wrong to use moral means to preserve immoral ends. This principle applies directly to evidence collection.
Constitutional right to privacy: Article 31 of Kenya’s Constitution guarantees the right to privacy to all people. Specifically, Article 31(d) protects the privacy of communications from infringement.
Data protection requirements: The Data Protection Act reinforces this protection by requiring that any processing of personal data be based on the individual's consent. This requirement effectively prohibits the use of evidence obtained through phone bugging or other unauthorised surveillance methods.
Exclusion of unlawfully obtained evidence: Article 50(4) of the Constitution provides the definitive answer: evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if admitting that evidence would render the trial unfair or would otherwise be detrimental to the administration of justice.
Can digital evidence be admissible in court even without the consent of the person from whom it was collected? The starting point is determining whether the individual whose personal data is being sought was given the opportunity to accept or decline the terms for processing their personal data. It is crucial to understand that the data controller—the person or entity that collects or processes the data—bears the burden of proving that consent was obtained from the data subject.
In Joel Mutuma Kirimi & another vs. National Hospital Insurance Fund (NHIF) [2020], the court addressed a case where consent had not been obtained. The court held, “Having established that the consent was not given, it is apparent that the plaintiff’s right to privacy and human dignity were infringed by the defendant. When the defendant took the plaintiffs picture out of the 1st plaintiffs private account and used it for promotional purposes without their consent, and using it for a purpose that they never intended to be part of.”
Personal data necessary to establish legal and factual credibility in a specific matter can be obtained through a court order. This exception typically applies when the data subject has been offered the opportunity to consent but has refused. A fundamental maxim of equity holds that “he who seeks justice must come with clean hands.” This principle resonates with Martin Luther King Jr.’s assertion that the purity of the process determines the justice of the result. Courts, therefore, cannot advance a just cause through unjust means.
