As stated earlier in this judgment, the provision of evidence to an accused is an integral part of what is internationally recognized as the principles of a fair trial. In the present application, it was clear to that court that the applicant was requesting documents which went beyond what the Public Prosecutor`s Office is in his possession. It was obvious that the plaintiff wanted to build a defence on the basis of the documents he wished to rely on with the assistance of the court. What has not escaped the court`s attention is the fact that one of the allegations facing the applicant is unauthorized access to the complainant`s electronic database. The question will be whether this evidence constitutes illegally obtained evidence and whether it is admissible. The applicant`s lawyer submits that he intended to rely on the requested documents in preparing his defence. He cited George Ngodhe Juma & 2 others v. Attorney General [2003] eKLR and Samuel Otieno Bundu & 6 others v. Republic [2019] eKLR.
In these cases, the Court has recognized the importance of disclosure at the pre-trial stage in order to achieve the objectives of justice. The applicant`s lawyer alleged that the applicant had refused to provide him with the requested documents, even though he had them. It found that the complainant had deliberately attempted to conceal evidence. On the spot he asked that court to grant the applicant`s request. “As argued by counsel for the defendants, illegally obtained evidence was criminally admissible for a long period of time as long as it was relevant (see Kuruma S/O Kaniu v. R. [1995] 1 ALLER 236). However, Kenya`s 2010 constitution changed the paradigm, and Article 50(4) of the constitution now prohibits such evidence. However, the Constitution has changed paradigm and Article 50(4) now prohibits such evidence. It is therefore clear that, if the applicant wishes the particular documents to be presented as evidence in the course of the proceedings (and it appears that he has copies of the particular documents in his possession), he must first overcome the obstacle as to whether this evidence was obtained illegally. That court agrees with the prosecution that it cannot be compelled by that court to use evidence of the plaintiff that is NOT part of the evidence on which it will rely to pursue its case against the plaintiff. The Public Prosecutor`s Office can only claim from the applicant what he is constitutionally and legally obliged to do.
If the applicant wishes to rely on other evidence that is not in the possession of the prosecution, he or she must provide the trial court with a sufficient basis on which to consider whether or not that other evidence is relevant to the case. On appeal, the company argued that Judge Lenaola was right to allow the removal of the secretly obtained documents. This section states: “Evidence obtained in a manner that infringes a fundamental right or freedom of the Bill of Rights is excluded if the admission of such evidence renders a proceeding unfair or otherwise prejudicial to the administration of justice … LSK, for its part, said through Apollo Mboya that all documents the company relied on were obtained legally. He stated that they had been presented to the LSK “by conscientious citizens in legal possession of the said documents”. But in another case in 2018, Labour and Industrial Relations Judge Hellen Wasilwa said: “In Kenya, illegally obtained evidence is admissible as long as it is relevant to the fact in question or its admission would not compromise the fairness of the trial.” A recent Court of Appeal decision on the construction of the Standard Gauge Railway (SGR) once again highlighted an issue that refused to go away – when to admit evidence obtained without the consent of an opposing party. The applicant submits that the above-mentioned decision of the Court of First Instance caused him prejudice by depriving him of the opportunity to prepare his defence properly. He argued that that judgment also infringed his right to a fair trial, enshrined in Article 25(c) of the Constitution, according to which the right to a fair trial may not be restricted. He explained that the prosecution is obliged to present to the court evidence that incriminates and exonerates an accused. On the premises, the applicant requested that court to review the decision of the Court of First Instance and to compel the complainant, through the Public Prosecutor`s Office, to use the documents requested by the applicant. In this case, the Kenya Railways Corporation successfully lobbied for a number of documents secretly obtained from activist Okiya Omtatah to be removed from the court record.
79. The Court had another opportunity to consider the admissibility of illegally obtained evidence in United Airlines Limited v. Kenya Commercial Bank Limited [2017] eKLR, where the General Court rejected the argument that illegally obtained evidence was criminally admissible if relevant. The court noted that Kenya`s 2010 Constitution had changed this position and that such evidence was not admissible under Article 50(4) of the Constitution, which provided: The judge made the decision in a case filed by Mater Hospital staff, including doctors, to prove their case. She said such evidence, including copies of minutes of an emergency meeting, was relevant. The judge ruled: “In deciding whether or not to allow the suppression of evidence, I am guided by the fact that the primary duty of this court is to dispense justice.” The judge added that, under section 80 of the Evidence Act, the procedure for presenting public documents as evidence in court guarantees the authenticity and integrity of the documents relied on by the court, but that the documents produced by Mr. Omtatah and LSK do not meet the admissibility criteria. The Court cannot therefore criticise the Court of First Instance`s decision not to grant the applicant`s application.
A request for evidence which is not in the possession of the Public Prosecutor`s Office is not granted. The applicant is free to use the avenues available to him under the Evidence Act to ensure that such documents are presented as evidence in good time. The Prosecution, for its part, insists that it has presented all the evidence, witness statements and documents on which it intends to rely during the trial. The Public Prosecutor`s Office argued that the documents requested by the complainant were not part of what the Public Prosecutor`s Office wished to invoke during the trial. The Public Prosecutor`s Office pointed out that the letter requesting the documents was not addressed to the Public Prosecutor`s Office, but directly to the complainant – so the Public Prosecutor`s Office was not aware of the request and, even if it was, the documents in question were not in its possession in order to enable the Court to compel them to make them available to the applicant. The KRC argued that a constitutional petition cannot be based on alleged “public documents” obtained in violation of the Constitution and the Evidence Act. In 2015, Justice Isaac Lenaola (now a Supreme Court justice) deleted documents filed by Mr Omtatah and the Law Society of Kenya (LSK) after KRC asked how they had obtained the confidential documents on the SGR deal. In the present application, the applicant complains that he has not received all the evidence on which the Public Prosecutor`s Office intends to rely during the trial, although he has identified the evidence that should be presented to him. The evidence seeking to be presented to the applicant is essentially documentary in nature, allegedly in the applicant`s possession. The applicant listed the records in a letter dated December 5, 2019 to the complainant.
In its judgment, however, the Court of First Instance confirmed the applicant`s position that he had received all the documents on which the Public Prosecutor`s Office wished to rely during the trial.