Admissibility of Evidence obtained in contravention of the Data Protection Act, 2019 - Lexology PDF

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Admissibility of Evidence obtained in contravention of the Data Protection Act, 2019 Kenya February 21 2020 T he Dat a Prot ect ion Act , 2019 (t he “DPA” or t he “Act ”) which came int o force on 25 thNovember 2019 regulat es how and when personal dat a can be obt ained, handled or disposed. T he DPA was enact ed t o give effect t o Art icles 31(c) and (d) of t he Const it ut ion. T he t wo clauses guarant ee t he prot ect ion of t he privacy of personal informat ion and communicat ion. In t hat regard, t he DPA provides for principles of dat a prot ect ion, right s of a dat a subject , requirement s for collect ing personal dat a and rest rict ions on handling personal dat a. Collect ion of dat a under t he DPA is required t o be st rict ly by informed consent of t he dat a subject . T he subject also has a right t o be informed of t he use t o which t he dat a is t o be put . T he DPA limit s t he use of t he dat a t o t he purpose specified during t he collect ion. In addit ion, t he dat a subject must be informed whet her t he dat a collect ion is compulsory and any consequences of failing t o provide any of t he request ed dat a. Furt hermore, t he dat a subject has right s under t he DPA t o access, object , correct and delet e false or misleading dat a held by any person. T he DPA furt her requires t hat dat a must be collect ed direct ly from t he dat a subject . T he DPA is going t o impact on t he rules of admissibilit y of evidence cont aining personal dat a. Evidence relied on in disput e resolut ion whet her in lit igat ion or alt ernat ive disput e resolut ion cont aining personal dat a risks exclusion for failure t o comply wit h t he provisions of t he DPA. Tradit ionally, t he common law as applied by Kenyan Court s has always t reat ed unlawfully obt ained evidence as generally admissible as far as it is relevant t o t he proceedings before t he court . T herefore, evidence obt ained in cont ravent ion of t he DPA would have been t reat ed as admissible.

However, court rulings in t he recent past indicat e a depart ure from t he common law view on admissibilit y of illegally obt ained evidence. In t he case of Njonjo Mue & another v Chairperson of Independent Electoral and Boundaries Commission & 3 others [2017] eKLR, t he Supreme Court of Kenya depart ed from t he broad view on admissibilit y of illegally obt ained evidence. T he Supreme Court expunged evidence obt ained by t he pet it ioner in cont ravent ion of t he Access t o Informat ion Act , 2016. T he court reasoned t hat if a legislat ion has specified a part icular procedural or subst ant ive requirement for obt aining evidence t hen t hose requirement s must be st rict ly complied wit h. T he court also recognized t he const it ut ional imperat ive in Art icle 50(4) which requires exclusion of any evidence obt ained in a manner t hat violat es any right s or fundament al freedoms in t he Bill of right s T he evident iary implicat ions of t he DPA is t hat part ies wit h disput es before court and t ribunals will be required t o collect evidence in st rict compliance wit h t he DPA since court s are mandat ed t o follow t he binding precedent in t he above Supreme court ruling. It is wort h not ing t hat t here will be a t ough balancing act bet ween t he right s t he dat a subject s’ right t o privacy and t he necessit y of using personal dat a t o inst it ut e and defend claims in disput e resolut ion. CFL Advo cat e s - Billy Wesonga and Dennis Kuloba...