Fruits of the Poisonous Tree: An Appraisal of Illegally Obtained Evidence in the Kenyan Jurisprudence

Abstract

In Kenya whoever wishes whichever court to give a verdict as to any legal right or liability reliant on the subsistence of facts which he/she asserts must attest that those facts exist. Proof of the facts is through adduction of evidence. Every person has the right to privacy which includes the right not to have their person or property searched. Equally every person has the right to freedom and security of the person. The norm is that the government has the responsibility of protecting its citizens and in case of breach may prosecute any person responsible. In such cases it may be necessary to obtain evidence that implicates persons responsible for the breach.
Generally evidence is admissible if relevant no matter how it was obtained. Conversely with the coming into force of the Constitution of Kenya 2010 the position seemingly shifted though pretty shaky. To that extent this paper looks into the Kenyan position on illegally obtained evidence through a comparative approach. It argues that the general rule should be that illegally obtained evidence is admissible provided that it does not render a trial unfair or detrimental to justice.

Keywords: Fruits, Poisonous tree, illegally obtained, evidence