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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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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