Court blocks secretly acquired evidence against wife in divorce case
Man’s evidence of his wife’s adultery was blocked by the High Court, which ruled that the information was collected in way that violated the woman’s privacy.
Reuben* and Catherine* were once a happily married couple. They were also financially well-off as their business was doing well, and could afford a home in one of the posh estates along Kiambu Road in Nairobi.
However, their union took a turn for the worse in 2019, which saw Reuben institute divorce and child custody cases against Catherine.
In the divorce case, Reuben fronted two grounds – adultery and cruelty. To prove his case, he availed audio recordings and video footage from cameras and sound recorders he had installed in his wife’s bedroom, personal car and compound.
Other evidence in form of pictures demonstrating the wife’s day-to-day movements and interactions had been collected by private investigators hired by Reuben.
He also presented to court voluminous documents derived from his wife’s emails, audio and video recordings, flash drive data, mobile phone messages, WhatsApp text messages and social media conversations.
But Catherine petitioned the High Court to stop use of the damning evidence based on the manner in which it was obtained.
She asserted that Reuben’s conduct violated her right to privacy and dignity as guaranteed under Articles 31 and 28 of the Constitution, respectively.
Justice Anthony Mrima ruled in Catherine’s favour by holding that Reuben’s actions were unconstitutional.
“The conduct of secretly mounting CCTV cameras and recording devices in order to record another person’s private conversations and movements, unless legally permissible, is not only uncouth, but least expected in this constitutional dispensation. Such amounts to an outright infringement of one’s privacy and dignity,” said the judge.
Reuben had installed the camera in Catherine’s bedroom after she moved out of the master bedroom following a domestic dispute. The bedroom was initially being used by their son.
Justice Mrima said there was no evidence to confirm that the woman consented to the installation of a camera in their son’s bedroom after she started living there.
“Marriage does not take away the constitutionally-guaranteed rights and fundamental freedoms of a spouse, neither are such rights and fundamental freedoms of one spouse subsumed by the other spouse upon marriage,” ruled justice Mrima.
He went on to prohibit the magistrate’s court from admitting the evidence that was obtained through the secret surveillance.
In justifying his access to the wife’s email and social media accounts, the man told court that he had helped her, as his wife, to set them up. As such, he had access and that she had allowed him to carry out maintenance of the accounts.
However, the court ruled that the man’s access to the accounts was conditional –he was only allowed to carry out maintenance, nothing more.
