Spying on a Cheating Spouse: The Legal Consequences
A marriage, regardless of its origin or support system, must be acknowledged. Any society’s social, cultural, or religious tenets frequently describe its existence. Such descriptions have given rise to expressions such as widows, widowers, divorcees, spinsters, and bachelors.
Section 3 of the Marriage Act defines marriage as the union of a man and a woman, whether monogamous or polygamous, and registered by the Act’s tenets, by Article 45 (2) of the Constitution.
It is assumed that the architecture and substance of marriage create and sustain happiness between two or more people willing to form a union whose harmony fulfills certain defined desires, selects emotional spaces, and provides companionship in a family setting.
As a result, it is a legal institution that is defined, sustained, and terminated, even though it is recognized and celebrated in a variety of religious and cultural contexts.
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Spying on a Cheating Spouse: The Legal Consequences. Section 66 (2) of the Marriage Act places the burden of marriage dissolution on the parties to prove that certain tenets or formalities are violated in such a way that the union is significantly untenable.
However, in 2020, while sitting and adjudicating a family matter in the Mombasa High Court, Justice Reuben Nyakundi ruled that coercing unwilling parties to stay together in a state of marriage was not only dangerous, but also largely unfair, simply because of grounds of adultery, cruelty, exceptional depravity, desertion, and irretrievable breakdown of the union could not be established.
The Daily Nation reported on the prevalence of extramarital affairs in the country on January 18, 2023, based on a government study, with most men having an average of seven sexually intimate partners, while women had two.
In this regard, couples have invested in a variety of mechanisms in an attempt to find and prove fault in the dwindling trust experienced in their marriages.
One of the most common yet discreet approaches is the use of private investigators, who are instructed to gather all types of information and data to give face and form to adultery and loss of fidelity in a union.
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In this context, the private investigation includes, but is not limited to, the use of cameras, video, and sound recorders, among other devices, to collect audio and visionary information inconspicuously and without the knowledge of the person being investigated.
It is referred to as spying in common parlance.
Although Section 107 of the Evidence Act states categorically that the person who alleges must also prove the allegation, the Data Protection Act (2019) imposes limitations to comply with the Constitution, specifically Articles 28, 31, and 50. (4). Justice Anthony Mrima ruled in the case of RC vs.
“A declaration is hereby issued that the Respondent’s actions of secretly installing a CCTV camera in the parties’ son’s bedroom, which room the Petitioner currently occupies, the Respondent’s actions of secretly and variously installing voice recorders to record the Petitioner’s private conversations, the Respondent’s action of secretly using a private investigator, and the Respondent’s actions of accessing the Petitioner’s private conversations, the Respondent’s actions of
Furthermore, it should be noted that the Evidence Act places a higher value on the integrity of any electronically obtained evidence. The court may interrogate how electronic and digital evidence was generated, stored, and communicated under Section 78 (3) of the Evidence Act.
Furthermore, the court may seek to understand the dependability of the method used to maintain the integrity of the electronic and digital evidence, as well as the method used to identify the originator of the electronic and digital evidence.
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Couples should be aware of the increased scrutiny placed on electronically and digitally obtained evidence.
Finally, Section 55 of Part X of the Evidence Act states that no person’s character may be imported into a court of law to impute the integrity of an allegation in any civil matter.
It is only imputable if such character manifests itself in the facts admitted as admissible evidence before the court.
By the standards established by and in law, it is critical to remember that every allegation made must be supported by the originator, unless circumstances demand otherwise, as described in Section 111 (1) of the Evidence Act.
Such standards are always subject to Article 50 (4) of the Constitution, which declares and affirms that evidence obtained in a manner that violates any right or fundamental freedom guaranteed by 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.
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Couples should be aware that the institution of marriage does not decapitate a person’s individuality, and thus their rights are a subject that the constitution defines, protects, and promotes at any given time and circumstance.
