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JudgmentRepublic VS ABDULGANNY OMAR20 min read

Republic VS ABDULGANNY OMAR

High Court at Kiambu High Court · · Andayi W.F.

(Being an appeal from the Ruling of Hon. B. Ombewa (SPM) delivered on 29th May 2023 at the Kahawa Law Courts MCCR E059 of 2022)

  1. This appeal by the State arises from a ruling by the trial court dated 29/5/2023 allowing an objection raised by the accused person at the trial (the respondent herein) to the production of evidence by the prosecution (the appellant herein) being a forensic examination report prepared in respect contents of a mobile phone on grounds that the forensic exploitation of the phone recovered from the accused person at the time of his arrest was done in violation of his constitutional right to privacy as protected by Article 31 of the Constitution  and in contravention of sections 118 and 121 of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC) thereby making the evidence inadmissible under Article 50(4) of the Constitution.
  2. A background to the application is that the respondent herein as the accused person in the trial court faces five counts under the Prevention of Terrorism Act (Cap. 59B) Laws of Kenya (POTA). Count 1 is on membership of a terrorist group contrary to section 24 of the Act; Counts 2 and 3 are on collection of information contrary to section 29 of the Act and counts 4 and 5 are on possession of articles connected with commission of a terrorist act contrary to section 30 of the Act. Counts 2, 3, 4 and 5 are in relation to possession of a Samsung mobile phone fitted with two SIM cards, one Safaricom and the other DU and it is alleged that the phone is the article used to collect the information being four videos as outlined in the counts.
  3. After he was arrested the police confiscated the mobile phone and subjected it to forensic examination without first obtaining a court order to search the phone and a report was prepared. It is this report that the respondent was opposed to its production alleging that a court order was not sought and obtained for the exploitation of the contents of the phone thereby infringing on his right to privacy.
  4. In response to the objection the prosecution filed grounds of opposition dated 1/4/2023 and a notice of preliminary objection dated 5/4/2023 which were similar in their content. They were both based on grounds that by dint of Article 165(3)(b) of the constitution of Kenya, the trial court had no jurisdiction to entertain an application for the violation of a constitutional right under Article 50(4) of the Constitution and section 8(1)(2) of the Magistrates Courts Act (Cap. 10) Laws of Kenya; that the application was fatally and incurably defective and bad in law and the preliminary objection by the respondent was in bad faith, frivolous, misconceived and a gross abuse of the court process and meant to derail and/or defeat the course of justice.
  5. After listening to the submissions by learned counsels for the defence and the prosecution the learned trial magistrate first determined that the court had jurisdiction to entertain the objection by the defence. He then sustained the objection by the defence to the production of the evidence, finding that the evidence was illegally obtained because the exploitation of the accused person’s phone was done without a court order and this violated his right to privacy and must be excluded from the proceedings.
  6. The appellant did not appeal on the issue of the jurisdiction of the trial court to determine the objection.
  7. However, they were dissatisfied with the decision to sustain the objection to exclude the illegally obtained evidence, and have thus filed the present appeal through a petition dated 26/4/2024 based on five grounds as follows:
    1. The trial magistrate court erred in law and in fact by disallowing the electronic evidence from mobile phone exploitation of the respondent’s phone.
    2. The learned trial magistrate court erred in law and in fact by failing to consider the fact that the respondent had given consent and even passwords to have his mobile phone(s) exploited.
    3. The learned trial magistrate court erred in law and fact by failing to consider the provisions of section 39A of the POTA relating to procedural technicalities.
    4. The learned trial magistrate court erred in law and in fact in failing to consider that the right to privacy may be interfered with as provided for under Articles 24 and 25 of the Constitution of Kenya.
    5. The trial magistrate erred in law and in fact by failing to consider that the exploitation report formed the basis for preferring charges against the respondent and that disallowing the same is tantamount to dismissing the prosecution case before it is closed.
  8. The State therefore prays that the appeal be allowed and the orders made by the trial court on 29/5/2023 be set aside.
  9. The appeal was heard by way of written submissions filed by the appellant’s and the respondent’s learned counsels.
  10. This being a first appeal, this court is enjoined to subject the evidence on record to a fresh review and scrutiny and come to its own conclusions, all the time bearing in mind that it did not see the witnesses testify as to form its own opinion on their demeanour as enunciated by the Court of Appeal in Okeno vs. Republic [1972] EA 32 that:

“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala Vs. R. (1957) EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post [1958] E.A 424.”

  1. The state proffered two issues for determination in this appeal being that:
    1. whether evidence obtained without a search warrant is admissible in a trial where there is a strong societal interest in adjudication of the case on its merits. In support of that ground the state quoted the Canadian case of R. v. Zacharias, 2023 SCC 30.
    2. whether the admission of the electronic evidence would render the trial unfair or would otherwise be detrimental to the administration of justice as per article 50(4) of the Constitution.
  2. Learned counsel for the respondent on his part submits that the issue for determination boils down to deliberate and flagrant acquisition of evidence through illegal means and its exclusion from the trial as demanded by Article 50(4) of the Constitution.
  3. Article 50 of the Constitution provides for the right to fair hearing which is “a right that shall not be limited” as provided for under Article 25 of the Constitution. Article 50(4) provides as follows:

“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.”

  1. It follows that this provision does not lead to the automatic exclusion of evidence obtained in a manner that violates a right or fundamental freedom in the Bill of Rights, which would properly be illegally obtained evidence. The court has to go further and consider whether the evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.
  2. Learned counsel for the appellant submits that the evidence objected to by the respondent is not illegally obtained evidence but evidence obtained without a search warrant but with express consent of the accused person. I do not admit of that submission for reasons that will become clear later herein. If that evidence was not illegally obtained the issue under consideration would not even have arisen.
  3. Learned counsel for the appellant submits further that the foundation and strength of the prosecution’ case is on the mobile phones recovered from the respondent which he voluntarily gave out and provided its passwords to the investigators for purposes of exploitation. A report was generated which informed the charges against the respondent and the report was shared with the respondent before commencement of the trial. That fact alone, to me would not warrant the admission of such illegally obtained evidence if there was no express provision of the law limiting the right to privacy under the POTA.
  4. The learned prosecution counsel has made submissions citing provisions under the National Police Service Act (Cap. 84) Laws of Kenya (NPS Act) and decided cases on the powers of the police to arrest and search without a warrant a person suspected to have committed an offence as provided for under the National Police Service Act and the CPC.
  5. The appellant further submits that the respondent voluntarily provided the password to his mobile phone that enabled the police to conduct a search of the contents and therefore in that case there was no violation of his right to privacy. They cite the case of Samson Mumo Mutinda T/A Patrol Driving School v Inspector General National Police Service, David Kubabi,Gilbert Okemwa, Attorney General & Director of Public Prosecutions [2014] KEHC 7142 (KLR) where the High Court held that “the petitioner freely gave his consent to the search and seizure and that he cannot therefore complain that there was a violation of his right to privacy.” That decision does not however relate to search of the contents of a mobile phone recovered from an accused person upon arrest. In any case, the respondent herein has denied vehemently that he gave such consent. I cannot however delve into the issue more lest this court gets into the arena of the trial which is not desirable. I however reiterate that the issue of the evidence so obtained without a search warrant is moot as explained above.
  6. Learned counsel for the respondent however submits that there is no evidence at all either from the arresting officer, re-arresting officer and investigating officer or the forensic officer that the respondent surrendered his communication gadgets to the arresting officers and further provided his passwords to his electronic gadgets. Further that a seizure notice was never issued and there was no communication to the respondent that his communication gadgets were being confiscated for investigations into in terrorism offences and that the same would be subjected to forensic examination. Learned counsel further submits that the arresting officer, re-arresting officer and investigations officer never testified that they informed the respondent of the reasons for his arrest.
  7. Learned counsel submits that there was no reason tendered by the investigating officer whatsoever that the actions of the respondent prior to his arrest were so egregious or damaging that this necessitated a search upon his property without a warrant and therefore application of the exception to the rule that illegally obtained evidence should be admitted in spite of there being no warrant of search. The fact that the charges relate to terrorism cannot apply as an exception as that would amount to discrimination. In any case, the trial court was aware of the same but went ahead and made a ruling denying admission of the illegally obtained evidence, learned counsel submits.
  8. Learned counsel for the respondent submits further that whereas it is true that the law provides for a search without a warrant, the appellant was required to demonstrate the reason why the exception to seeking a warrant to exploit the mobile phone contents is applicable to this case, they have failed do so both at the trial court and at this court and that the trial court found as much.
  9. Learned counsel further submits that the reasons advanced by the appellant in this appeal are different from those they argued at the trial court and which the trial court considered and declined to admit the illegally obtained evidence.
  10. Learned counsel for the respondent submits that in order to contextualize the issue at hand, Article 50(4) of the constitution has to be read together with the following provisions of the law:
    1. Constitution: Articles 24 and 31.

Article 24 which is on the limitation of fundamental rights and freedoms;

Article 31 which provides for the protection of the right to privacy.

    1. Criminal Procedure Code: sections 22, 25, 118 to 121.

S. 22. provides for search, with or without warrant, of a place entered by person sought to be arrested;

S. 25. provides for search, with or without warrant, of arrested persons;

The other provisions are reproduced below:

S. 118. Power to issue search warrant

S. 118A. Ex-parte application for search warrant

S. 119. Execution of search warrants

S. 120. Persons in charge of closed place to allow ingress and egress

S. 121. Detention of property seized

  1. Learned counsel for the appellant has made submissions referring to various provisions of international instruments and decided cases outside the Kenyan jurisdiction which have decided the issue at of admission of illegally obtained evidence. These are:
    1. Prosecutor v. Thomas Lubanga Dyilo: No.: ICC-01/04-01/06 Date: 24 June 2009, Public Decision on the admission of material from the \"bar table\'\' in which Article 69(7) of the Rome Statute of the International Criminal Court was considered. The issue before the Court was
      whether it was permissible for the prosecution to rely on contested ‘Bar Table’ documents as part of its trial evidence, regardless of how they were obtained by the Prosecutor. Article 69(7) of the Statute expressly regulates the admissibility of evidence obtained by means of a violation of the Statute or internationally recognized human rights. 
    2. R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621. In that case after Kevin Fearon was arrested for armed robbery, Ontario police officers searched his cell phone prior to obtaining a warrant, finding evidence in his text messages and photos that was later used to help convict him. The Supreme Court of Canada held that police officers may lawfully search mobile phones without a search warrant.
  2. In each of the above decisions, the courts decided that although illegally obtained through a violation of the right to privacy under the respective laws, the evidence obtained without first obtaining a search warrant would nonetheless be admissible.
  3. Arising from these decisions the appellant submits that there if the prosecution fulfills certain conditions then the search of the respondent’s mobile phone can be found to have been lawful.
  4. I do not however agree with the way the appellant has couched the issue here because it is not whether or not the search was lawful because if the search was lawful in the first place, the issue of admissibility of the evidence would not have arisen. The issue arose because the search of the cell phone without a warrant was not lawful as it was in violation of the respondent’s right to privacy protected under Article 50(4) of the constitution thereby making the evidence thus obtained illegal. Indeed, in the Canadian case of Fearon above the Supreme Court found that:

“the initial search of the cell phone, which disclosed all of the cell phone evidence tendered by the Crown at trial, breached F’s s. 8 rights. . .. Despite that breach the evidence should not be excluded.”

The Court went ahead to explain that:

“The impact of the breach on F’s Charter-protected interests favours exclusion of the evidence, but it does so weakly.  Although any search of any cell phone has the potential to be a very significant invasion of a person’s informational privacy interests, the invasion of F’s privacy was not particularly grave.  Further, as he did not challenge the warrant that was subsequently issued for the comprehensive search of the cell phone, his privacy interests were going to be impacted and the particular breach did not significantly change the nature of that impact.  However, other factors favour inclusion.  As to the seriousness of the Charter-infringing state conduct, the dominant view at the time of the search approved cell phone searches incident to arrest.  In addition, the police fully disclosed the earlier searches when they decided to obtain the warrant to search the cell phone.  While the police should, when faced with real uncertainty, choose a course of action that is more respectful of the accused’s potential privacy rights, an honest mistake, reasonably made, is not state misconduct that requires the exclusion of evidence.  Society’s interest in the adjudication of the case on its merits also favours admission: the evidence is cogent and reliable, and its exclusion would undermine the truth-seeking function of the justice system.”

  1. I agree with learned counsel for the respondent that before importing the reasoning in the above cases to the present case first the provisions of the law in both in the Canadian Charter and Criminal law must be considered as compared to the Kenyan provisions and that has not been done by the appellant herein. Secondly, there is the dissenting opinion of the Canadian Supreme Court Justices finding that such illegally obtained evidence should be excluded which could as well be considered persuasive. 
  2. For those reasons I would be slow to import the wholesale application of the reasoning in that case together with the principles derived therefrom which the appellant has outlined in their submissions to the present one and to consider the conditions suggested by learned counsel for the appellant as to whether they satisfy inclusion of the illegally obtained evidence.
  3. The issue then is whether or not such illegally obtained evidence should be admitted. Article 50(4) indeed provides that such evidence shall not be admitted “… if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.” It is therefore the appellant’s submission that such evidence would be admissible if some conditions, as outlined in the submissions are met, and that in the present case the conditions were met.
  4. The High Court has considered when evidence obtained without a warrant would constitute a violation of an accused person’s right to fair trial or would be detrimental to the administration of justice in the case cited by both the appellant and the respondent of Philomena Mbete Mwilu v Director of Public Prosecutions, Director of Criminal Investigations, Chief Magistrate’s Court (Anti-Corruption Court Nairobi) & Attorney General; Stanley Muluvi Kiima (Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae) [2019] KEHC 11366 (KLR) thus:

“Our courts have not defined what amounts to ‘otherwise detrimental to the administration of justice’ within this exclusion rule, but a similar provision in the South African Constitution was discussed in the South African case of Gumede v S (800/2015) [2016] ZASCA 148. The appeal concerned evidence obtained as a result of an unlawful search in violation of the right to privacy. In its decision, the court stated: “[23] This court in S v Tandwa[7] made it clear that s 35(5) does not provide for automatic exclusion of unconstitutionality obtained evidence. In this regard it had this to say (paras 116 to 117): Evidence must be excluded only if it (a) renders the trial unfair; or (b) is otherwise detrimental to the administration of justice. This entails that admitting impugned evidence could damage the administration of justice in ways that would leave the fairness of the trial intact: but where admitting the evidence renders the trial itself unfair, the administration of justice is always damaged. Differently put, evidence must be excluded in all cases where its admission is detrimental to the administration of justice, including the subset of cases where it renders the trial unfair. The provision plainly envisages cases where evidence should be excluded for broad public policy reasons beyond fairness to the individual accused. [117] In determining whether the trial is rendered unfair, courts must take into account competing social interests. The court’s discretion must be exercised “by weighing the competing concerns of society on the one hand to ensure that the guilty are brought to book against the protection of entrenched human rights accorded to accused persons”. Relevant factors include the severity of the rights violation and the degree of prejudice, weighted against the public policy interest in bringing criminals to book. Rights violations are severe when they stem from the deliberate conduct of the police or are flagrant in nature. There is a high degree of prejudice when there is a close causal connection between the rights violation and the subsequent self-incriminating acts of the accused…”

  1. Learned counsel for the appellant has referred to several other decisions of courts from other jurisdictions on the admissibility of illegally obtained evidence. However, I find that the context in which most of those decisions were made not similar to the one obtaining herein where the issue for consideration is whether illegally obtained evidence of a search of the contents of a mobile phone obtained from a suspect upon arrest without a warrant is admissible.
  2. The issue is not easy to determine because even in the Canadian case of Fearon, which addressed a very similar issue to the present one, it was decided on a majority basis but with a significant number dissenting. So, I would find the issue is quite specific and novel. It is an emerging issue in the wake of globalization, internet use and the myriad uses of the mobile phone as a gadget of communication yet a treasure trove of content so personal to an individual and at the same time other information may be of so much interest to the State that getting hold of the gadget is a moment of hallelujah! for law enforcement agencies because it can make available information that can resolve the most complex of cases.
  3. I would decide the issue herein by narrowly confining it to the specific provisions of section 35 of the Prevention of Terrorism Act (Cap. 59A) Laws of Kenya which provides for the limitation of certain rights as is envisaged under Article 24 of the constitution in the following terms. S. 35:
  4. Subject to Article 24 of the Constitution, the rights and fundamental freedoms of a person or entity to whom this Act applies may be limited for the purposes, in the manner and to the extent set out in this section.
  5. A limitation of a right or fundamental freedom under subsection (1) shall apply only for the purposes of ensuring—
    1. the investigations of a terrorist act;
    2. the detection and prevention of a terrorist act; or
    3. that the enjoyment of the rights and fundamental freedoms by an individual does not prejudice the rights and fundamental freedom of others.
  6. The limitation of a fundamental right and freedom under this section shall relate to—
    1. the right to privacy to the extent of allowing—
      1. a person, home or property to be searched;
      2. possessions to be seized;
      3. the privacy of a person’s communication to be investigated, intercepted or otherwise interfered with.
    2. …
  7. I think this provision of the law is quite explicit and specific and it needs no extrapolation or expansionist interpretation. It is plain and obvious that in line with Article 24 of the Constitution, the right to privacy has been limited to the extent concerning matters arising under the POTA to allow the privacy of a person’s communication to be investigated, intercepted or otherwise interfered with
  8. Narrowing down to the limitation of the right to privacy under sub-section 3 on what is allowed by law, I find that, unfortunately unlike interception of communication, where it is provided for under section 36 of the Act that the police to first obtain an “interception of communication order” from court before proceeding, there is no requirement that a warrant of search be first obtained in respect of a search of a person, home or property, seizure of possessions or investigations or interference with the person’s communication. So that for me a search warrant would not be required in those instances as the same is not expressly provided for under this section of the law. This is always remembering that these limitations do not apply carte blanche to any criminal investigations or to all laws but are specific to the instances outlined under that section of the POTA. The offence under investigation must be under the POTA and only in the specific instances enumerated under the section.
  9. Appreciating these provisions of the law as such, I would find that contrary to the submission by learned counsel for the respondent, there would be no discrimination in application of the law on admission of illegally obtained evidence under the POTA because the law has explicitly provided so and so far the same has not been declared unconstitutional.
  10. I however greatly differ with the learned appellant’s counsel on the submission that it is a mere procedural technicality to fail to obtain a warrant of search where it is so required by law. Section 39(A) of the Prevention of Terrorism Act (Cap. 59B) Laws of Kenya (POTA) to which learned counsel referred in so submitting provides that:

“The Court shall have due regard to the authenticity and accuracy of the evidence presented before it without undue regard to technicalities of procedure.”

  1. I do not think this provision extends to the manner in which the evidence was obtained during investigations but rather to the mode of production of the evidence in a trial. Such an interpretation would lead to absurd results where evidence in whichever manner obtained would be considered admissible provided it is found to be authentic and accurate and to my understanding this would trample the provisions of Article 50(4) which is the basis of the exclusionary rule by providing in the first instance 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. This provision enjoins law enforcement agencies to ensure that first they obtain evidence in a manner that does not violate any right or fundamental freedom in the Bill of Rights. It is a deterrent to lawless police action in obtaining evidence and where they do so then the same would be rejected by the court for being unfair or detrimental to the administration of justice. This is the constitutional imperative, unless a law has specifically limited the right in the terms provided for under Article 24 of the Constitution as is the case herein.
  2. I find that the learned trial magistrate fell in error in disallowing the production of the evidence when the right to privacy is expressly limited by specific provision of statute, the POTA, thereby permitting the use of evidence obtained without first obtaining a search warrant. The admission of that evidence would not constitute a violation of the appellant’s right to fair trial nor would it be detrimental to the administration of justice and therefore meets the threshold of Article 50(4) of the Constitution. Consequently, this appeal by the appellant that the evidence should be admitted is allowed. After the same is produced the court still has an opportunity to consider whether the same is authentic and accurate, whether or not it proves the charges against the respondent. It is not obvious that it will meet that test by merely being produced.
  3. With the result that the appeal herein has merit and is allowed. The decision of the trial court is set aside and substituted with an order allowing the admission of the evidence objected to by the respondent. However, it must always be remembered that such allowance is only made in the specific circumstances of cases under the POTA as that is where the limitation is expressly provided by the Constitution. Other cases must be considered with respect to their statutory provisions.

Dated and delivered at Kiambu on the Virtual Platform, Teams, this 30th day of September 2024 in the presence of:

Kelvin Kamau for the appelant.

Chacha Mwita for the respondent.

Etropia Court assistant.


    Republic VS ABDULGANNY OMAR Republic VS ABDULGANNY OMAR