Mue & another v Chairperson of Independent Electoral and Boundaries Commission & 3 others
The bottom line
#Leaked IEBC memos cannot be used in court if obtained illegally.
What this practically means
#The Supreme Court ruled that internal IEBC memos obtained without following the legal process for accessing information cannot be used as evidence in court. The court said the right to information is not absolute and must be balanced against privacy and property rights. Using such illegally obtained documents would make a trial unfair and harm the justice system. This means you cannot bypass official procedures to get documents and then use them in court.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the internal memos exchanged between members of the 2nd respondent were obtained unlawfully and should be expunged from the record.
- 2.Whether the admission of the impugned memos would violate the rights of the 1st and 2nd respondents and be detrimental to the administration of justice.
Key legal issues
#Whether internal memos obtained without following the statutory procedure under section 27 of the IEBC Act and the Access to Information Act are admissible in court.
The memos were obtained unlawfully and are inadmissible; their admission would violate the rights of the 1st and 2nd respondents and be detrimental to the administration of justice.
The court found that the petitioners did not explain how they obtained the internal memos, which were clearly internal communications of the IEBC. The law provides a procedure for accessing such information under section 27 of the IEBC Act and the Access to Information Act. By failing to follow that procedure, the petitioners violated the rights of the respondents to privacy and property under Articles 31 and 40 of the Constitution. Applying Article 50(4), the court held that admitting such evidence would be detrimental to the administration of justice. The court distinguished the general common law position that illegally obtained evidence is admissible (Nicholas Randa Owano Ombija case) because here there was a clear violation of statutory procedures and constitutional rights.
Whether the right of access to information under Article 35 of the Constitution is absolute.
The right of access to information is not absolute; it is subject to limitations under Article 24(1) and the procedures set out in the Access to Information Act and section 27 of the IEBC Act.
The court noted that Article 35(1) gives citizens the right to access information held by the State, but this right is limited by Article 24(1) and by statutes such as the Access to Information Act and the IEBC Act. The court emphasized that citizens must follow the prescribed procedures when seeking information, and that the right must be balanced against other rights such as privacy and property. The court cited the case of Rev Timothy Njoya v Attorney General to support the proposition that an applicant must show what right they seek to exercise or protect and how the information would assist them.
Legal principles established
#- The right to access information under Article 35 is not absolute and is subject to legal procedures.
- Evidence obtained in violation of constitutional rights must be excluded if it would make a trial unfair.
- Internal documents of state bodies like IEBC are protected by privacy and property rights.
- Citizens must follow the Access to Information Act and IEBC Act when requesting official documents.
- Illegally obtained evidence is not automatically admissible in Kenyan courts.
- The court will protect state organs' rights against unlawful disclosure of internal communications.
Court orders
#- 1.The Internal Memo dated September 5, 2017 from the 1st respondent to the Chief Executive Officer, Mr Ezra Chiloba marked NM-3 annexed to the affidavit of Njonjo Mue is expunged from the record.
- 2.The Internal memo dated October 9, 2017 from a former Commissioner of the 2nd respondent, Ms Roseylne Akombe to the 1st respondent marked NM-10 annexed to the affidavit of Njonjo Mue sworn on November 5, 2017 is expunged from the record.
- 3.The Internal Memo dated October 14, 2017 from the Chief Executive Officer of the 1st respondent addressed to the Directors, Managers, CEMS and CECs of the 2nd respondent marked as NM-12 annexed to the affidavit of Njonjo Mue sworn November 5, 2017 is expunged from the record.
- 4.Internal Memo dated October 16, 2017 from a former Commissioner of the 2nd respondent, Ms Roseylne Akombe to the 1st respondent marked as NM-13 annexed to the affidavit of Njonjo Mue sworn on November 5, 2017 is expunged from the record.
- 5.The Internal Memo dated October 16, 2017 from a former Commissioner of the 2nd respondent, Ms Roselyn Akombe to the 1st respondent marked as PA-7 annexed to the affidavit of Perpetua Adar sworn on November 5, 2017 is expunged from the record.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
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.
In the present instance, there has been a clear violation of laid out procedures of law attributable to access of information, and violation of the rights of privacy and protection of property that the 2nd respondent is guaranteed under the Constitution and section 27 of the IEBC Act.
The following documents are expunged from the record: (a) The Internal Memo dated September 5, 2017 from the 1st respondent to the Chief Executive Officer, Mr Ezra Chiloba marked NM-3 annexed to the affidavit of Njonjo Mue.
There shall be no orders as to costs.
Key timeline
#Practical implications
#Evidence gathering must follow procedure
When relying on documents from state organs, you must prove they were obtained through the proper legal channels under the Access to Information Act or relevant statutes. Failure to do so risks having key evidence struck out, and the court may find you violated your opponent's constitutional rights. Always document the lawful process of acquisition.
Protect internal documents from leaks
If your company holds sensitive information, this ruling strengthens your right to privacy and property under Articles 31 and 40. You can challenge the use of any leaked internal documents in court by showing they were obtained without following legal procedures. Ensure your internal policies clearly state how information requests must be handled.
Don't use leaked documents in court
If you come across internal documents from a state body or company, you cannot simply use them as evidence in a case. You must first request them through the official process under the Access to Information Act. Using leaked documents can get them thrown out of court and may violate the other party's rights.
Frequently asked questions
#Can I use leaked IEBC documents as evidence in a Kenyan court?+
No. The Supreme Court ruled that internal IEBC memos obtained without following the legal process under the IEBC Act and Access to Information Act are inadmissible. Using them would violate privacy and property rights and make the trial unfair.
Is the right to access information in Kenya absolute?+
No. While Article 35 of the Constitution gives you the right to access information held by the state, this right is limited by Article 24 and by laws like the Access to Information Act. You must follow the prescribed procedures to request the information.
What happens if I use illegally obtained evidence in a Kenyan court?+
Under Article 50(4) of the Constitution, the court must exclude such evidence if admitting it would make the trial unfair or harm the administration of justice. The court can order the evidence expunged from the record, as happened in this case.
Does this ruling apply to private companies in Kenya?+
Yes, the principles apply broadly. The court protected the IEBC's rights to privacy and property under Articles 31 and 40. Private companies can similarly challenge the use of their internal documents obtained without following legal procedures.
Later judgments citing this (7)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- United Care Ltd v Macharia & 2 others (Environment and Land Case 320 of 2019) [2026] KEELC 4091 (KLR)[2026] KEELC 4091 (KLR)2 Jul 2026applied
- Lepakkiras & 7 others v Sereolopi Community Land Management Committee (CMLC) & 7 others (Environment and Land Petition E005 of 2025) [2026] KEELC 3549 (KLR)[2026] KEELC 3549 (KLR)8 Jun 2026followed
- Aluochier v Senate & 2 others[2025] KESC 59 (KLR)3 Oct 2025applied
- Night & 2 others v National Housing Corporation & 4 others (Environment and Land Case 18 of 2021) [2025] KEELC 5513 (KLR)[2025] KEELC 5513 (KLR)4 Jul 2025
- Night & 2 others v National Housing Corporation & 4 others (Environment and Land Case 18 of 2021) [2025] KEELC 5513 (KLR)[2025] KEELC 5513 (KLR)4 Jul 2025applied
- Sheria Mtaani na Shadrack Wambui & another v Muguna & another; Karanja & 10 others (Interested Parties) (Petition E212 of 2024) [2025] KEELRC 1540 (KLR)[2025] KEELRC 1540 (KLR)22 May 2025
- Yoya v Kenyatta International Convention Center & 2 others; Mwaura (Interested Party) (Employment and Labour Relations Petition E060 of 2024) [2025] KEELRC 967 (KLR)[2025] KEELRC 967 (KLR)27 Mar 2025
Cite this brief
#Cite this brief
Caselaw, "Mue & another v Chairperson of Independent Electoral and Boundaries Commission & 3 others", Case Analysis (2017). Presidential Election Petition 4 of 2017. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2017/45/eng@2017-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.