Evidence 101: How not to catch a cheating partner

A man’s quest to gather as much evidence to prove adultery against his wife suffered a blow when the High Court prevented him from using a trove of files — including recorded conversations, photographs, CCTV footage and messages retrieved from his wife’s WhatsApp account — because they were obtained illegally. 

The man, identified as KKR because of legal reasons, had collected a total of 68 pieces of evidence, which he intended to use in divorce proceedings pending before a Milimani court.

But the wife, identified as RC, objected to 45 annexures because they were obtained in violation to her privacy and dignity.

Justice Anthony Mrima agreed with her — in some instances — and quashed the evidence, saying, they cannot be admitted as evidence in the divorce case.

“A declaration hereby issues that the respondent’s action of secretly installing a CCTV camera in the parties’ son’s bedroom, which room the petitioner currently occupies, the respondent’s actions of secretly and variously installing voice recorders with a view to record the petitioner’s private conversations, the respondent’s action of secretly using a private investigator and the respondent’s actions of accessing the petitioner’s email and social media accounts without the consent of the petitioner all offend Articles 28, 31 and 50(4) of the constitution,” the court ruled.

Private investigator

Evidence presented before court showed that KKR had even hired a private investigator who took his partner’s photos, installed CCTV cameras in their bedroom, the compound, and recorders in her vehicle, all in a bid to gather evidence.

The investigator even downloaded messages from her mobile phone. The couple’s marriage hit the rocks in 2019 and KKR filed the proceedings, seeking divorce on grounds of cruelty and adultery. He also sought the custody of their two children.

RC, however, challenged the use of the evidence saying they were obtained through secret, intrusive, unauthorised and illegal manner through secretly installed audio recording devices, unauthorised access to her email and social media accounts, and secretly installed cameras.

She argued that the unauthorised, illegal and secretive surveillance, recording and hacking of her personal mobile phone, email and social media accounts violates her right under Article 50(4) not to have evidence obtained in a manner violating her fundamental rights and freedoms.

The man defended the hiring of the private investigator, saying it was within the law and all the evidence he had gathered was lawful and admissible.

But Justice Mrima ruled that there is a great danger in the administration of justice if the manner of gathering evidence will not be confined to within the constitution and the law.

“It cannot be the norm that every Tom, Dick and Harry can do as they please in obtaining adverse evidence against another. There must be order in commanding things both in the public realm as well as in private affairs. It is that order which is dictated upon by the constitution and the law,” the Judge said.

CCTV cameras

Justice Mrima said 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 the current constitutional dispensation.

“Such amounts to an outright infringement of one’s privacy and dignity,” the judge said.

The judge said there are several lawful ways KKR could have chosen to obtain the information he needed. For instance, the judge said, had he reported the matter to the police, investigations would have been undertaken in respect to an abortion allegedly procured by his wife, which is a criminal offence.

“If such conduct by private citizens is not checked and sanctioned accordingly, then the end result will be fanning chaos in the society. It will be open to everyone to run around and gather evidence against the other in any manner. Such tendencies must be regulated,” he said.

The man had claimed that the family-ran company had approved the installation of tracking devices and audio recordings in the vehicles.

But Justice Mrima dismissed the claim, saying, the secret installation of the voice recorder in the vehicle usually used by the woman was in violation of her rights to privacy and dignity.

The court, however, noted that the CCTV cameras installed at the gate, in the living room, at the TV room, in the dining room and in the master bedroom, which the man currently occupies, were all installed with the knowledge and consent of the couple.

Evidence quashed

The court quashed the recording captured in the couple’s son’s bedroom, which is being used by the woman, saying there is no evidence that the installation was consented to by both parties.

“In the end, this court finds and hold that, in this case, any evidence procured from the CCTV camera secretly installed in the parties’ son’s bedroom, evidence from any voice recorder, evidence gathered by the private investigator and any evidence from the petitioner’s email and social media accounts, all amount to illegally obtained evidence and that, such evidence, offends the administration of justice,” the Judge said. 

The court, however allowed the use of an Occurrence Book produced as evidence, saying the OB is a public document. He also allowed the use of a pregnancy scan as evidence in the man’s claims that the woman was carrying an illegitimate pregnancy and later procured an abortion. The evidence was found in their son’s bedroom.

“The petitioner does not controvert the place the respondent obtained the same. Had it been from a hospital record, it would have infringed on the petitioner’s right to privacy. That evidence is admissible,” the Court said.

Other evidence quashed were the woman’s conversation with her son and another one with her alleged lover, screenshots of her personal communication, personal diary entries and receipts, airline booking tickets and hotel receipts, because they were procured illegally.

The judge said that, in a marriage set-up, when such installations are to be mounted either inside the matrimonial home or within the compound, the couple must agree over it.

“The reason being that the cameras capture various images and have a bearing on someone’s privacy. In the event the installation is done without the knowledge or consent of one of the spouses, serious constitutional issues bordering on one’s privacy and dignity are likely to arise,” Justice Mrima said. 

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