Introduction

An affidavit is a formal written statement of fact, declared to be true by the person making it. This document is sworn under oath or affirmation, signifying that the deponent acknowledges the truthfulness of the contents under penalty of perjury. Affidavits are frequently utilized in legal proceedings, serving as evidence to support various claims or statements. 

Validity of an affidavit

The creation and validity of an affidavit is hinged on a crucial procedural requirement; that the deponent must swear to the truthfulness of their statements in the presence of a person who has the legal authority to administer such oaths. This authority figure, often referred to as a commissioner of oaths or a notary public in some jurisdictions, is responsible for overseeing the swearing process. Their role ensures that the affidavit is not only a truthful account but also one that has been duly sworn in accordance with legal standards. 

Affidavits in Kenya

In Kenya, a commissioner for oaths serves the role of authentication and swearing of affidavits. The presence of this official when the affidavit is sworn verifies the truthfulness of the deponent’s claims. This verification process involves the commissioner for oaths confirming the identity of the deponent, ensuring that the deponent understands the significance of the oath, and witnessing the signing of the document. 

The importance of this procedure cannot be overstated, as it lends a layer of legal credibility to the affidavit, enabling it to be used as reliable evidence in court or other legal contexts. The affidavit, therefore, becomes a powerful legal document that can substantiate claims, support motions, and provide a sworn statement of facts in various legal situations. 

Legal Framework 

1. The Oaths and Statutory Declarations Act (Cap 15): 

• This Act provides the primary legal basis for the administration of oaths and the making of statutory declarations in Kenya. It specifies who is authorized to administer oaths, including commissioners for oaths, magistrates, and judges. 

• The Act also details the format of affidavits and statutory declarations, including the required language and the attestation clause.
  

2. The Civil Procedure Act (Cap 21) and The Civil Procedure Rules, 2010: 

• These laws govern the procedural aspects of civil litigation in Kenya, including the use of affidavits as evidence in civil cases. 

• Order 19 of the Civil Procedure Rules specifically deals with affidavits, providing guidelines on their content, filing, and use in court proceedings. It includes provisions on who may swear an affidavit, the necessity of personal knowledge or the basis of the information contained in the affidavit, and the requirement for affidavits to be properly endorsed by a commissioner for oaths. 

3. The Evidence Act (Cap 80): 

• The Evidence Act governs the admissibility of evidence in Kenyan courts, including affidavits. 

• The Act addresses the circumstances under which affidavits can be admitted as evidence, emphasizing their use in instances where oral testimony is not possible or practical. 

4. The Notaries Public Act (Cap 17): 

• This Act outlines the role and responsibilities of notaries public in Kenya, who are also authorized to administer oaths and attest affidavits, similar to commissioners for oaths. 

• It details the appointment, duties, and powers of notaries public, ensuring that affidavits and other sworn documents are handled with legal authority and integrity. 

In summary, the legal framework for affidavits in Kenya is a composite of statutory provisions, procedural rules, and judicial interpretations that collectively ensure affidavits are used effectively and legally within the justice system. This framework ensures that affidavits serve their purpose as reliable and credible pieces of evidence in legal proceedings. 

Types of Affidavits 

In Kenya, affidavits serve various purposes and are categorized based on their specific uses and the contexts in which they are required. Here are some common types of affidavits used in Kenya: 

1. Affidavit of Service: 

This affidavit is used to confirm that legal documents have been served to the parties involved in a case. It includes details such as the date, time, and manner of service, as well as the identity of the person served. This is commonly used during civil proceedings and is provided for in the Civil Procedure Rules. 

2.Affidavit of Means: 

This affidavit is used to disclose an individual’s financial status. It is often required in family law cases, such as divorce or child support proceedings, to assess an individual’s ability to pay maintenance or support. 

3. Affidavit of Loss: 

This affidavit is used to declare the loss of important documents, such as a national identity card, passport, or title deed. It typically details the circumstances of the loss and is often required to obtain a replacement document. 

4. Affidavit of Identity: 

This affidavit is used to confirm an individual’s identity, often required when there are discrepancies in personal information or when formal identification documents are not available. 

5. Company Affidavits. 

Company affidavits include; affidavit for lost or damaged share certificate, affidavit for surrender of shares 

6. Affidavit of Birth: 

This affidavit is used to attest to the details of a person’s birth, especially in cases where an official birth certificate is not available. It can be required for various administrative or legal purposes, such as school enrollment or obtaining identification documents. 

7. Affidavit of Marriage: 

This affidavit is used to declare the details of a marriage, including the date and place of the marriage. It can be required for legal processes such as applying for spousal benefits or immigration purposes. 

8. Affidavit of Consent: 

This affidavit is used to indicate that a person has given their consent to a particular action or agreement. It is commonly used in family law cases, such as when a parent consents to a child’s travel or adoption. 

These are just but the few types of affidavits applicable. Each type of affidavit serves a specific function and must be tailored to meet the legal requirements of the situation for which it is intended. The preparation and use of affidavits in Kenya must adhere to the legal standards set out in the relevant statutes and procedural rules to ensure their effectiveness in legal proceedings and validity in the specific purpose. 

Please get in touch with the Netsheria team for any clarifications and assistance on the above by contacting us on +254 716209673 or via  email.

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Introduction

The legal profession is normally viewed with mixed perceptions by the Kenyan populace leading to biases leveled against lawyers due to misunderstood nuances and observations. Normally, one will hear of corporate or criminal lawyers, Advocate of the High Court of Kenya, Senior Counsel and other terminologies referring to lawyers. This article will delve into the common nuances held by the public and demystify the Kenyan legal practice in a bid to at least sensitize the populace.  

Legal education and training

It is noteworthy that the terms ‘lawyer’ and ‘advocate’ tend to be used interchangeably in social circles but formally carry different meanings.  

The legal profession involves a maximum six (6) year training period. The first phase involves a four-year Bachelors of Laws degree, referred as LLB due to the traditional name of the qualification in Latin, ‘Legum Baccalaureus’. Upon successful completion of the LLB course from a recognized local or international university, one is referred to as a ‘lawyer’.  However, while a lawyer is allowed out basic legal research, write articles on legal issues,  provide initial legal advisories to third parties and draft basic legal documents, he/she is barred from representing clients in court matters and drawing up formal legal documents in his/her name. 

The next step in the legal qualification journey for a lawyer is enrollment to the Kenya School of Law for the Advocate Training Program (ATP). This training captures the practical aspects of legal practice which includes compulsory training as a pupil (pupillage) under a qualified advocate of at least five (5) years standing. Upon completion of the ATP tuition and pupillage, the lawyer will sit for the Bar examinations and, upon successful completion, will admitted to the Roll of Advocates in Kenya (the ‘Bar’) by the Chief Justice. Once admitted to the Bar, a lawyer is now referred to as an Advocate of the High Court of Kenya and may practice in any court in Kenya upon payment and issue of a practicing certificate by the Law Society of Kenya. 

Do all lawyers go to Court?

Lawyers are categorized based on whether they carry out public or private practice from the broad categorization of whether they handle criminal or civil matters. They are further divided into their area of practice and the number of years they have accumulated in practice. Among these lawyers, some go to court while others are practice exempted. 

Public practice lawyers are those employed by the national or county government, parastatals and other government bodies as legal officers as outlined below:  

1. The Judiciary – as the umbrella arm of government involved in interpretation and adjudication of the law as Judges, Magistrates, Adjudicators or Researchers involved in litigation of all legal disputes. 
2. Attorney General & Solicitor General – as the chief legal advisors to government. 
3. Office of the Director of Public Prosecutions – for the prosecution of crimes against the public. 
4. County Government Counsels – as County legal officers involved in day-to-day legal operations of county functions. 
5. Legal Officers in government parastatals, public bodies and independent authorities established under law. 

Private practice lawyers are categorized into personal private practitioners, usually in a law firm, or in-house counsels found in companies, non-governmental organizations and other corporate bodies. These consist of: 

1. Corporate or Commercial Lawyers – such lawyers are involved in Civil practice matters based on areas of specialization or expertise which tend to revolve around running of businesses. These include Intellectual Property, Capital Markets, Insurance, Cybersecurity, Data Protection, Mergers and Acquisitions, Tax Compliance, Employment and Labour relations, Oil and Gas lawyers among other specializations. 
2. Criminal defense lawyers – they are involved in defending accused persons undergoing prosecution before court. 
3. In-house Counsels – they work as compliance lawyers where they advise companies or organizations, and are employed to provide appropriate legal advisory services to facilitate the of running of the company or organization’s activities. 
4. Family, Children and Probate lawyers – involved in matters incidental to marriages, child protection and adoption as well as succession matters. 
5. Conveyancing Lawyers – involved in land adjudication and transfer procedures.  
6. Academia lawyers – involved in teaching of trainee lawyers at universities and other institutions and carrying out legal research. 

Based on the number of years of legal practice, advocates are entitled to obtain the following additional qualifications upon application as: 

1. Commissioner for Oaths- advocates with three (3) years post admission experience 
2. Notary Public- advocates with five (5) years post admission experience  
3. Senior Counsel- advocates with over fifteen (15) post admission experience with other factors such as exemplary practice, integrity, extensive contribution to the legal profession through publications etc. influencing the bestowment of this prestigious title.  

Biases about lawyers

Biases meted on lawyers tend to be arrived at from an ignorant standpoint based on innuendos and common placed beliefs. These include; 

1. Types of lawyers 

As captured above, many believe that lawyers are either involved in criminal or corporate matters. From the different types of lawyers captured above, the legal profession is wide with various areas of practice allowing for specialization into areas of expertise. Hence, this cures the generalized misconceptions on the types of lawyers in various sectors and what they generally do. 

2. Expensive 

Most people tend to believe that lawyers are generally expensive in the provision of their services. This is however not the case as legal fees charged by lawyers is controlled under the law in terms of billing for work done and services offered. For instance, court fees are regulated by the Judiciary through the office of the Chief Justice to ensure uniformity in filing cases before court as well as fines and monetary obligations before court. 

Advocate fees, are determined by the Advocates Renumeration Order which specifies the extent to which an advocate may charge to handle a clients matter subject to terms and conditions such as value of the subject matter, court attendances and other ramifications. This however excludes charges for commercial and corporate matters which are agreed between the advocate and client based on the work performed. 

3. Complicated  

The legal practice is shrouded by belief that lawyers are complicated, with a habit of speaking ‘heavy’ English full of legal jargon and Latin terminologies. During training, lawyers are taught the importance of using simple, plain and basic language for purposes of addressing court and clients. This is also a requirement in drafting pleadings and court documents used in court in a bid to ensure principles of natural justice on effective participation of all parties to a case. 

Conclusions 

Based on the above, it is clear that the legal profession is heavily biased due to misconceptions arrived at from ignorance and lack of proper knowledge. Due to this, many startups, SMEs and the general populace tend to overlook the requirement for lawyers until its too late. Lawyers are not only needed for settlement of disputes but for advisory purposes as well in order to avoid disputes in the first place.  

The Judiciary forms the umbrella of legal practice whose key mandate is the interpretation and application of set laws in a just manner with a view to protecting the rights and liberties of all, thereby facilitating the attainment of the ideal rule of law. 

Netsheria’s lawyers are fully trained and specialized in areas key in the establishment, growth and expansion of your business operations ensuring you focus on running your business while we handle the legal business as usual stuff.  

To learn more about how Netsheria can help you scale up your business, visit our website or contact us today. 

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In the second week of October, was marked with the media was awash with news of a fake lawyer operating under the guise of ‘Brian Mwenda’ who had stolen the identity of a real lawyer named Brian Mwenda Ntwiga. Local media reported that the ‘fake lawyer’ had won dozens of lawsuits despite not being trained in the practice of law. 

The Law Society of Kenya (LSK) issued a statement where it outlined stated that the said ‘Brian Mwenda’ (real name Brian Mwenda Njagi) had impersonated a registered advocate under the same name and that the impostor had been presenting and conducting himself as an Advocate of the High Court of Kenya and a member of the LSK Nairobi Branch. 

The revelation that the impostor posing as a lawyer allegedly secured victories in twenty-six (26) cases has left Kenya’s legal system in disarray shock, leaving. This has left unsettling questions about the Law Society of KenyaLSK’s and the country’s judicial system integrity. In the jaw-dropping revelation, the LSK unveiled that not only was ‘Brian Mwenda Njagi not a registered member of the esteemed society LSK but also that he had zerowas not legal qualified to practice law in Kenya.  

Initial investigations indicate that the impostor utilized a common international fraud scheme known asd ‘Business Email Compromise’ whereby a criminal scammer sends an email that appears to come from a known source making a legitimate request. The scammer might spoof an email account or website, send spear phishing emails or use malware to gain undetected access to a victim’s data including passwords and other financial account information. 

The LSK has engaged the Directorate of Criminal Investigations (DCI) to carry out investigations into the matter which may lead to where the impostor will likely facing charges of impersonation, forgery and obtaining money by false pretenses if he is charged and found guilty of the offence.  

Netsheria LLP International, a provider of strategic legal expertise and analytical capabilities for startups and SMEs remains your dedicated partner in your business growth journey while ensuring your intellectual property is safeguarded from infringement.  

To learn more about how Netsheria can help you scale up your business, visit our website or contact us today. 

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WHY YOU SHOULD ALWAYS INCLUDE AN ARBITRATION CLAUSE IN A CONTRACT DOCUMENT

An arbitration clause is a provision in a contract that requires the parties to resolve any disputes that may arise through arbitration rather than through court litigation. The act defines an Arbitration as, a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. (Arbitration Act 1995).

It is important that when parties are drafting, negotiation or to always include a Dispute resolution method clause in the document, there are several Dispute resolution methods, Arbitration being at the core of them all. Here are some reasons why you may need to have an arbitration clause in every agreement:

1. Faster and Less Expensive Dispute Resolution: Arbitration is typically faster, less formal, and less expensive than court litigation. With an arbitration clause, the parties agree to avoid the expense and delay associated with court litigation.
2. Expertise and Neutrality: The parties can select an arbitrator with expertise and experience in the subject matter of the dispute, which can lead to a more informed and neutral resolution.
3. Privacy: Arbitration proceedings are generally private and confidential, which can be beneficial if the dispute involves sensitive or proprietary information.
4. Enforceability: Arbitration awards are generally easier to enforce than court judgments. If the losing party refuses to comply with the decision, the winning party can obtain a court order to compel compliance.

In conclusion, including an arbitration clause in every agreement can provide benefits such as faster and less expensive dispute resolution, expertise and neutrality, privacy, and enforceability. However, it is important to consult with legal counsel to ensure that an arbitration clause is appropriate for your specific situation.

How can we assist?

The success of a business is pegged on how well it protects itself from loss and harm arising from contractual relationships. Such loss and harm is prevented or reduced by having an understanding of how contracts/agreements are drafted and negotiated. At Netsheria International, we offer a wide scope of legal documents and legal to meet the requirements for different businesses. For more information, kindly visit our website or contact us via email.

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