Kuruma with Nine Lives; the Undying Common Law Principle on Illegally Obtained Evidence

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 Introduction

The promulgation of the Constitution of Kenya, 2010 and the pronouncements of the Court of Appeal in United Airlines Limited v Kenya Commercial Bank Limited and Okiya Omtatah Okoiti v Attorney General may be used to mark the death of the Kuruma Principle that guided the admission of illegally obtained evidence during the colonial and post-colonial period. The United Airlines Limited v Kenya Commercial Bank Limited clearly held that the Kuruma case, that allowed illegally obtained evidence to be admitted as long as it was relevant to the matter in court, was no longer good law. It held that the Constitution of Kenya, 2010 had brought a paradigm shift in admission of illegally obtained evidence and “…Article 50(4) of the Constitution now disallows such evidence”. This piece contends this pronouncement of the Court of Appeal.

This piece argues the Kuruma Principle is still very relevant even after the promulgation of the 2010 Constitution. It argues that the Constitution of Kenya deals with a limited scope of illegally obtained evidence. It is only interested in evidence obtained in a manner that violates its Bill of Rights. Evidence outside that scope is not governed by the Constitution. The Kuruma principle therefore gains relevance when dealing with evidence outside the Constitutional scope. This piece calls for the creation of a new approach that would help deal with evidence outside the constitutional scope since the Kuruma Principle clearly promotes intentional violation of the rule of law and disrepute the administration of justice. This is the only way to ensure that the Kuruma Principle fully retires.

In advancing the argument above, this piece is divided in several parts- the first discusses the reign of the Kuruma Principle. It describes the Kuruma Principle and its application especially after 2010. The second part discusses the change in shift in relation to the Kuruma Principle as inspired by the Constitution of Kenya, 2010. It shows the attempts to ensure that Kuruma Principle retires. The third part discusses the renaissance of the Kuruma principle. It shows that even though the Constitution of Kenya, 2010 brought a shift in approaching illegally obtained evidence, it did not fully interfere with the relevance of the Kuruma Principle. The fourth part is interested in addressing the question whether Kenya should really follow the Kuruma Principle. It proposes three ways to deal with the question of illegally obtained evidence outside the scope of the Constitution and endorses one approach as the best for the country.

The Reign of the ‘Kuruma Principle’ and its Roots in the Judicial System.

Prior to the 2010 Constitution regime, issues regarding illegally obtained evidence were governed by the Common Law principle laid down in Kuruma vs. The Queen and Reg. V. Leatham.[1] The principle was simple and clear- illegally obtained evidence was admissible in court as long as it was relevant to the case at hand.[2] It did not matter how you obtained the evidence. Even if you stole it, the evidence would still be admissible.[3] Despite the Constitution of Kenya, 2010 providing a new approach to admission of evidence, the Common Law principle had its roots deep in the judicial system. It highly influenced some decisions made 2015 and in 2018.

The High Court in its 2015 judgment of Nicholas Randa Owano Ombija v Judges and Magistrates Vetting Board highly relied on the Kuruma Principle. Here, Justice Nicholas Ombija had illegally a decision of the Judges and Magistrates Vetting Board that showed that half of the Board Members had voted for his ouster as a judge while the other half had voted for his continued service. The consequence of such a decision, as per the precedent of the Judges and Magistrates Vetting Board was that he would continue with his service as a judge. This decision was not released to the public. The Board wanted to re-vet Justice Ombija, a move that he opposed and adduced the decision of the Board in court. The Court admitted the decision as evidence holding that, even though it was illegally obtained, it did not matter how it was obtained. What was of importance was the decision’s relevance to the case.[4] The High Court’s judgment was equally influential in the 2018 Employment and Labour Relations Court judgment in John Muriithi & 8 others v Registered Trustees of Sisters of Mercy (Kenya) ta “The Mater Misericordiae Hospital”. Here, the court relied on the Common law principle to hold that all illegally obtained evidence was admissible in civil matters.[5] These deep roots of the Common law principle had to be uprooted by two decisions of the Court of Appeal.

The Shift in Relevance of the Kuruma Principle in Kenyan Courts.

The decisions of the Court of Appeal in United Airlines Limited v Kenya Commercial Bank Limited and Okiya Omtatah Okoiti v Attorney General helped in fortifying the new Constitutional approach to illegally obtained evidence by ‘killing’ the Kuruma principle in our Kenyan courts. In United Airlines Limited v Kenya Commercial Bank Limited, the Court of Appeal held that

…illegally obtained evidence was for a long time admissible in criminal law as long as it was relevant. However, the Constitution of Kenya 2010 has now shifted the paradigm and Article 50(4) of the Constitution now disallows such evidence. The Kuruma case …is therefore no longer good law.[6]

However, the Court was very conservative in the scope of its judgment. It held that the new approach provided for in the Constitution was only applicable to criminal matters. Therefore, the Kuruma principle was still relevant in all civil matters. This is what informed the 2018 John Muriithi & 8 others v Registered Trustees of Sisters of Mercy (Kenya) ta “The Mater Misericordiae Hospital” as discussed above. This conservative approach was later done away with by the same court in 2020 in Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others.

The Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others may have served as the final shot to the Kuruma principle. The Court of Appeal held that the conservative approach by the court in United Airlines Limited v Kenya Commercial Bank Limited did not align with the Constitution of Kenya 2010.[7] The Court held that article 50 of the Constitution spoke to the right to a fair hearing which was accorded to all persons- both in criminal and civil matters.[8] Therefore, the position the Kuruma principle was no longer good law in criminal matters was equally the position of law in civil matters.[9] At that point, one may be mistaken to think that the Kuruma principle had no space in Kenya. However, a closer reading of the two Court of Appeal judgments and the 2010 Constitutional model leaves a big gap that is only filled by either by the Kuruma principle or creation of another regime of laws that deal with illegally obtained evidence. This is discussed in the next section.

The Renaissance of the Kuruma Principle.

The definition of illegally obtained evidence goes beyond the scope of evidence envisioned under article 50(4) of the Constitution of Kenya, 2010. Illegally obtained evidence has been defined as evidence obtained by violation of a statute or a person’s constitutional or other human rights.[10] Two categories of illegally obtained evidence emerge (i) Evidence sourced from a process that violates a statute or the Constitution without necessarily tainting the human rights of a person.[11] (ii) Evidence obtained in a manner that violates human rights. [12] Article 50(4) of the Constitution is only interested in the second category.

 

 

Article 50 (4) of the Constitution provides that:

Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.[13]

From the literal understanding of the above text, it is clear that the article first seeks to limit its scope of application before giving in the guidelines that should be followed in admission or rejection of the evidence in question. Article 50(4) of the Constitution is only applicable if the following two conditions are met: first, the evidence must be obtained in a manner that violates a human right. Therefore, without a violation of a human right, article 50(4) does not apply.[14] Second, the article does not focus on violation of all human rights. It is only applicable if the evidence is obtained in a manner that violates a right or a fundamental freedom in the Bill of Rights.[15] Therefore, the Constitution of Kenya, 2010 only guides on the approach of courts in relation to illegally obtained evidence that violates human rights or fundamental freedoms in the Bill of Rights.

Looking at the definition of illegally obtained evidence relied John Muriithi & 8 others v Registered Trustees of Sisters of Mercy (Kenya) ta “The Mater Misericordiae Hospital above, and the scope of evidence that is covered under article 50(4) of the Constitution of Kenya, there is a large scope of illegally obtained evidence that is not covered by the 2010 Constitutional model.  All the evidence that may be obtained in a manner that does violate the Constitution or other statutes without tainting human rights is not covered under the article. Further, all evidence that is obtained in a manner that violates rights not in the Bill of Rights, does not also attract the attention of the article. The question that then arises is which law should govern the areas not governed by article 50(4) of the Constitution? That is when the Kuruma principle becomes relevant again.

What is the Way Forward? Possible approaches.

There are three approaches to deal with the evidence that falls outside the scope of article 50(4). The first is limiting the scope of interpretation of the Court of Appeal decisions in United Airlines Limited v Kenya Commercial Bank Limited and Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others to allow application of the Kuruma principle. The second is to call upon parliament to make a law that would govern the admission or rejection of all other evidence that does not fall under the scope of article 50(4). The third is mixing the two approaches above, where the Kuruma principle remains the general principle in areas outside the scope of the Constitution then parliament makes lex specialis on different areas that it finds the Kuruma principle unjust.

On the first approach, it is safe to argue that the holding of the Court of Appeal in United Airlines Limited v Kenya Commercial Bank Limited and Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others declaring that the Kuruma Principle is no longer good law Kenya is only applicable to the specific instances that are under the scope of article 50(4). Thus, the Kuruma Principle remains good law in all other spheres of illegally obtained evidence not governed by the article. With this, article 50(4) and the Kuruma principle complement each other.

The second approach on the literal interpretation of the Court of Appeal in the United Airlines Limited and Okiya Omtatah. It can equally be safe to argue that the Kuruma Principle is no longer good law in Kenya. Therefore, there is no law to govern the admission of illegally obtained evidence that falls outside the scope of article 50(4). The Parliament has to come in to develop the approach that is used to govern the admission or rejection of such evidence.

The third approach seems to be approach in application in Kenya. The author makes this statement careful enough to note that the status of the Kuruma Principle is equally not clear. This vagueness is the basis of this paper. In this approach, three legal regimes govern illegally obtained evidence. First, article 50(4) deals with all evidence obtained in a manner that violates rights and fundamental freedoms in the Bill of Rights. Second, the Kuruma principle deals with all illegally obtained evidence that is obtained in violation of statutes, the Constitution (not Bill of Rights part) or rights not in the Bill of Rights. However, it may be realised that application of the Kuruma principle leads to injustice in specific instances. The parliament can then come in to legislate on admission of illegally obtained evidence in areas that the Kuruma Principle have been found to be unsuitable. This lex specialis will then amount to the law governing the admission of illegally obtained evidence in that particular area.

The lex specialis approach has already been applied in the case of confessions. Sections 25-32 of the Evidence Act provide for different requirements that must be met before a confession is admissible. Therefore, if a confession is obtained in a manner that does not violate a human right in the Bill of Rights e.g. a voluntary confession to an officer below the rank of Inspector of Police, then such an illegal confession’s admissibility is governed by the Evidence Act, the lex specialis. However, if the illegally obtained evidence is obtained in a manner not tainting the human rights in the Bill of Rights and there is no governing law on that issue, the Kuruma Principle comes in to guide on the admissibility of the evidence.

The authors propose the second approach as one fit for Kenya. The parliament will come up with a model to deal with all illegally obtained evidence, not under the scope of article 50(4) and completely do away with the Kuruma principle. The model should balance the following four needs of a judicial system: (i) the need of the judges and judicial officers to be presented with enough reliable evidence to enable them identify the truth (ii) the need to ensure respect for rule of law and avoid intentional violation of the law (iii) the need to ensure fairness of the trial and lastly (iv) the need to ensure that administration of justice is not brought to disrepute.

The second approach will be advantageous for the following reasons. First, it will prevent any injustice that may arise out of the Kuruma principle. The Kuruma principle was not interested in the respect of rule of law. It was neither concerned that some means of obtaining evidence would disrepute administration of justice. The two clearly manifest in the words of Crompton J who in Reg. V. Leatham held that even if one committed a criminal offence ‘stealing’ to access the evidence, the evidence would still be admissible.[16] The court would only be interested in having access to evidence that would help it decide the matter at hand. Therefore, creating a model to deal with all illegally obtained evidence out of the scope of the Constitution would help to prevent the injustice that would arise from the Kuruma principle.

Second, it will prevent the confusion of a multifaceted approach to illegally obtained evidence. Instead of having three legal regimes (which may expand to more under the lex specialis on different kinds of evidence), the judicial system will only be presented with two legal models applicable in all instances. Therefore, if the evidence in question was obtained in a manner that violated the Bill of Rights, the model under the Constitution applies. If the evidence was obtained in a manner that violated other laws and not the Bill of Rights, the model made by parliament will apply. Thus, adopting the second approach will save Kenya from confusion, ensure rule of law and protect administration of justice from disrepute.

Conclusion.

The question of whether to admit or expunge illegally obtained evidence has troubled many countries. Kenya’s 2010 Constitution created a model to ensure that there was a balance in respect of human rights and access to evidence that would lead to identification of the truth. However, its scope is only limited to illegally obtained evidence obtained in a manner that violates the Bill of Rights. The question that then arises is- what law should govern the illegally obtained evidence outside the scope of the Constitution? The Kuruma Principle admitting all relevant evidence prevalent before the promulgation of the 2010 Constitution. The Court of Appeal in 2017 and 2020 held that the Principle is no longer good law. However, without a law governing the admission of illegally obtained evidence outside the Constitutional scope, this piece argues that the Kuruma principle is still relevant to such evidence. It calls for the Parliament to work with haste to develop another model that would completely replace the Kuruma principle and save Kenyans from the injustice that would arise out of its application.

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By 

Lawrence Kariuki Muthoni is a final-year student of law at the University of Nairobi. He also serves as the Managing Editor, University of Nairobi Law Journal.

Joseph Mwangi Mburu is a final-year student of law at the University of Nairobi. He has a keen interest in Human Rights and Constitutional Law.

[1] Kuruma v. The Queen, [1955] A.C. 197, at 203, [1955] 1 All E.R. 26, at 239 (P.C.) (Kenya) (Lord Goddard); Regina v. Leatham, 8 Cox C.C. 498 at 501 [1861-73] All E.R. Rep. 1646 at 1648 (Q.B. 1861) (Crompton J.).

[2] Kuruma v. The Queen, [1955] A.C. 197, at 203, [1955] 1 All E.R. 26, at 239 (P.C.) (Kenya) (Lord Goddard).

[3] Regina v. Leatham, 8 Cox C.C. 498 at 501. [1861-73] All E.R. Rep. 1646 at 1648 (Q.B. 1861) (Crompton J.).

[4] Nicholas Randa Owano Ombija v Judges and Magistrates Vetting Board [2015] eKLR Civil Appeal No. 281 of 2015 para 52.

[5] John Muriithi & 8 others v Registered Trustees of Sisters of Mercy (Kenya) ta “The Mater Misericordiae Hospital” & another [2018] eKLR para 25.

[6] United Airlines Limited v Kenya Commercial Bank Limited [2017] eKLR para 14.

[7] Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others [2020] eKLR para 80.

[8] Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others [2020] eKLR para 80.

[9] Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others [2020] eKLR para 80.

[10]John Muriithi & 8 others v Registered Trustees of Sisters of Mercy (Kenya) t/a “The Mater Misericordiae Hospital” & another [2018] eKLR, Cause No. 153 OF 2015 citing Black’s Law Dictionary Tenth Edition – Page 676.

[11] Robert Doya Nanima, ‘Admission of confessions in Uganda: Unpacking the theoretical, substantive and procedural considerations of the Supreme Court’ (2017) 23(1) East African Journal of Peace and Human Rights 106.

[12] Robert Doya Nanima, ‘Admission of confessions in Uganda: Unpacking the theoretical, substantive and procedural considerations of the Supreme Court’ (2017) 23(1) East African Journal of Peace and Human Rights 105.

[13] Constitution of Kenya, 2010, art. 50(4); Constitution of South Africa, 1996, s 35(3) (5).

[14] Robert Doya Nanima, ‘Admission of confessions in Uganda: Unpacking the theoretical, substantive and procedural considerations of the Supreme Court’ (2017) 23(1) East African Journal of Peace and Human Rights 106.

[15] Constitution of Kenya, 2010, art. 50(4).

[16] Regina v. Leatham, 8 Cox C.C. 498 at 501 [1861-73] All E.R. Rep. 1646 at 1648 (Q.B. 1861) (Crompton J.).