Affidavits in Kenyan law are written statements made voluntarily under oath or affirmation before an authorized person swearing to a fact or set of facts. They play an essential role in legal and administrative processes, serving as formal evidence.

If you are involved in legal proceedings or need to verify facts officially, understanding affidavits and what to include in one is crucial. It is also important to understand the difference between an affidavit and a statutory declaration to ensure you present the correct document.

This article covers the basics of affidavits, from what an affidavit is to how you can draft one.

The Legal Requirements of an Affidavit in Kenya

In our introductory paragraph, we defined an affidavit as a written statement sworn voluntarily by a person under oath or affirmation before an authorized person. Let’s break down these parts of the definition.

An affidavit must be sworn voluntarily. Any force or coercion to swear an affidavit may render it inadmissible.

The person swearing an affidavit is known as the”affiant”. They may also be referred to as the deponents. 

Affiant is derived from the word affirm. The Oxford Dictionary defines the word affirm as saying something emphatically (clearly/forcibly) or in public. However, in the legal context, an affirmation is a solemn declaration made by those who do not wish to swear under a religion. It has the same effect as an oath.

An oath is a statement made under a religious Deity to witness to truths only.

There are three authorized persons before whom an oath or affirmation may be made. These are a Commissioner for Oaths, a Notary Public and a Magistrate/Judge.

Types of Affidavits in Kenya

Affidavits come in different forms, depending on the purpose for which they are made. Some common types include:

• Affidavit of Evidence: Used to present facts in support of a legal case.
• Affidavit of Service: Filed to confirm the delivery of legal documents.
• Affidavit of Marriage: Proves the existence of a marriage, particularly in customary marriages.
• Affidavit of Support: Pledges financial support, often in immigration cases.
• Verifying Affidavits: a short affidavit used when filing a case together with the pleading (plaint, petition, complaint etc) to verify that the facts of the case are true.
• Affidavit of Death: Declares a person’s death, usually in succession cases.
• An Affidavit for a lost or Damaged document: One may swear an affidavit as part of the administrative process of applying for a duplicate copy of a document including a share certificate, marriage certificate, birth certificate, title deed, motor vehicle log book, certificate of insurance, exam certificate including degrees, KCSE and KCPE certificates among others.
• Affidavit for Proof of Residence: This is used to prove a person’s residence for purposes such as the application for a visa.
• Affidavits under the Companies Act: There are several affidavits sworn under the Companies Act including an affidavit for a lost share certificate, an affidavit for the surrender of shares, an affidavit for the resignation of a director, an affidavit for the change of particulars of a director among others.

What Should an Affidavit Contain?

A valid affidavit in Kenya should include the following:

• Title: Clearly state the title as “Affidavit.”
• Introduction: Identify the person making the affidavit (deponent), along with their details and authority.
• Facts: List the facts, briefly and truthfully, as the deponent knows them.
• Sworn Statement: The deponent swears that the facts are true.
• Signature: The deponent must sign the affidavit before a Commissioner for Oaths, Notary Public, or Magistrate.
• Jurat or Attestation or Sworn Before statement: the certification made in the affidavit to signify that the affidavit was properly made before a duly authorized officer.
• Jurisdiction: The affidavit should show where it was sworn, typically the jurisdiction where the deponent is located.

Who Can Swear an Affidavit?

Any adult of sound mind can swear an affidavit in Kenya. However, the deponent must have personal knowledge of the facts they swear to. You cannot base an affidavit on hearsay unless the law allows it.

Steps to Swear an Affidavit

1. Draft the Affidavit: Write the affidavit, including all necessary facts and legal elements.
2. Visit a Commissioner for Oaths or Notary Public: Attend in person with your ID.
3. Swear or Affirm: Take an oath (religious) or affirm (non-religious) that the facts deponed in the affidavit are true.
4. Sign: Sign the affidavit in the presence of the authorized person, who will stamp and seal it.

The Role of Affidavits in Legal Cases

Affidavits are important evidence in legal cases. They allow the court to rely on written facts instead of requiring a person to testify in person. Courts use affidavits in various proceedings, especially during interim applications, where the facts support orders requested by the parties.

Key Laws Governing Affidavits in Kenya

In Kenya, affidavits fall under the following laws:

• The Oaths and Statutory Declarations Act: This act sets out how to create and use affidavits.
• The Evidence Act: This law governs how courts admit affidavits as evidence.

Importance of Affidavits in Legal Processes

Affidavits help present facts in legal and administrative processes. If you submit false information in an affidavit, you may face legal consequences such as perjury. Therefore, always ensure the information in the affidavit is accurate and true.

Conclusion

Affidavits are vital in Kenya’s legal system, serving as written evidence in both courts and administrative matters. Whether you need to submit one for a court case or an official purpose, make sure you understand its requirements. It’s always wise to consult a lawyer to ensure your affidavit meets legal standards.

If you need help drafting or swearing an affidavit, reach out to us at Wacu Mureithi & Co. Advocates. Our experienced legal team will guide you through the process and ensure your document meets all legal requirements. Contact us today for expert assistance with your legal documents.