Understanding Affidavits in Kenya

Introduction

An affidavit is a written statement made voluntarily under oath or affirmation before an authorized person swearing to a fact or set of facts. In Kenya, an affidavit can be used as formal evidence in legal proceedings and as proof of facts in administrative processes.

This article provides an in-depth discussion on affidavits in Kenya. It may be useful to anyone involved in legal proceedings or required to swear an affidavit as proof of facts for an administrative process. You may also find our article on the Difference Between an Affidavit and a Statutory Declaration useful.

The Law Governing Affidavits in Kenya

In Kenya, affidavits are governed by the following statutes:

• The Oaths and Statutory Declarations Act is the main statute regarding affidavits. It provides for their creation and use.
• The Evidence Act regulates how courts accept affidavits as evidence. It also provides the legal definition of facts and hearsay. An affidavit must only include facts. The Act only accepts hearsay under certain conditions.
• The Civil Procedure Rules guide the format and content of an affidavit.
• The Penal Code defines the offence of perjury (making false statements under oath) and outlines the penalties for this crime, which may include imprisonment and/or fines.

The Legal Requirements of an Affidavit in Kenya

We have 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.

• A person must swear an affidavit voluntarily. No one should force, intimidate, or coerce the deponent into swearing it, as this would render the affidavit inadmissible and subject to being contested and struck out.
• An affidavit can only be sworn by a natural person. Artificial persons, such as companies, cannot swear affidavits. A person swearing an affidavit must meet certain criteria. They must be an adult, of sound mind, with personal knowledge of the facts being deposed. A person swearing an affidavit is known as a “deponent” or “affiant“.
• An oath is a statement made under a religious Deity to witness to truths only, while an affirmation is a solemn declaration to tell the truth by a person who does not believe in God. An affirmation has the same effect as an oath.
• Under Kenyan law, only a Commissioner for Oaths, a Notary Public, a Magistrate, or a Judge can witness an oath or affirmation. These individuals are the only authorized persons who can oversee the swearing of an affidavit.

Types of Affidavits in Kenya

Various types of affidavits exist, depending on their purpose. Some common types include:

• Affidavit of Evidence: This type is used to present facts in support of a legal case.
• Affidavit of Service: Filed to confirm that legal documents have been served/delivered to a party in a lawsuit.
• Affidavit of Marriage: This popular affidavit serves as proof of marriage, especially in customary cases, and is valuable for court and administrative processes. However, current marriage laws mandate that couples Register Customary Marriages, so its usage might be limited. Seek legal advice before preparing this affidavit as proof of a marriage.
• Affidavit of Support: This affidavit pledges financial support. It is most often used in immigration cases.
• Verifying Affidavits: This is a brief affidavit used when filing cases along with the pleading (e.g., plaint, petition, originating summons, complaint) to verify that the facts in the pleading are true.
• Affidavit of Death: Declares a person’s death, typically in succession cases. Certain criteria must be fulfilled before this type of affidavit can be made.
• An Affidavit for a Lost or Damaged document: When applying for an official duplicate of a lost or damaged document, you may be required to swear an affidavit. Some common instances include replacing a marriage certificate, birth certificate, title deed, motor vehicle log book, certificate of insurance, and exam certificates such as degrees, KCSE and KCPE certificates.
• Affidavit of Proof of Residence: This affidavit acts as proof of a person’s residence for purposes such as the application for a visa.
• Affidavits under the Companies Act: Several affidavits are sworn under the Companies Act. Some examples include an affidavit for a lost share certificate, an affidavit for the surrender of shares, an affidavit for the resignation of a director, and an affidavit for the change of particulars of a director.

Affidavits in Lawsuits/Legal Cases

Affidavits play a crucial role in lawsuits in Kenya. They are widely used in all types of litigation, with courts relying on them to support claims, provide evidence, and verify legal arguments.

In civil cases, they support applications such as injunctions, judicial reviews, and interlocutory motions. They also accompany pleadings like petitions and originating summons. Courts consider affidavits as evidence, especially in matters resolved without oral testimony.

In constitutional, election and human rights cases, affidavits help applicants present facts without calling witnesses. They outline violations and provide documentary proof. Courts examine affidavits to determine whether a claim meets the legal threshold for relief.

Affidavits in Administrative Processes

Affidavits are also essential in various administrative processes or proceedings. Government agencies, regulatory bodies, and tribunals rely on them to process applications, verify facts, and resolve disputes.

In public administration, affidavits support applications for licenses, permits, and official records. They confirm identity, residence, and compliance with statutory requirements. For instance, a business owner may swear an affidavit to verify directorship changes when updating company records at the Business Registration Service (BRS).

Affidavits also feature in regulatory compliance. Bodies like the Public Procurement Regulatory Authority (PPRA) require an affidavit during the tendering processes. Bidders swear affidavits to declare conflicts of interest, financial capability, or compliance with procurement laws.

In tax matters, the Kenya Revenue Authority (KRA) may request affidavits to support tax exemptions, disputes, or ownership claims.

In immigration matters, applicants often need to submit an affidavit when applying for visas, work permits, citizenship, or refugee status.

Administrative tribunals use affidavits in dispute resolution. The Political Parties Disputes Tribunal (PPDT), the Rent Restriction Tribunal, and the Sports Disputes Tribunal accept affidavit evidence to help streamline cases and speed up determinations.

The Contents of an Affidavit in Kenya?

To be valid in Kenya, an affidavit should include the following:

• Title: Clearly state the title as “Affidavit,” including other descriptive words as necessary. For example, “Affidavit of Marriage”.
• Introduction: Identify the person making the affidavit (deponent), along with their details and authority. The person must state that they are an adult or sound mind, and provide an address and or ID No.
• Facts: List the facts, briefly and truthfully in numbered paragraphs, as the deponent knows them. Each fact must be in a separate paragraph.
• Signature: The deponent must sign the affidavit.
• Jurat, Attestation or Sworn Before statement: a jurat specifies the place and date of swearing, along with the name and signature of the authorized person before whom the swearing takes place.

When drafting affidavits, prioritize accuracy, relevance, and adherence to legal formalities to avoid rejection by courts or government agencies. Well-structured affidavits strengthen cases, improving the chances of success in litigation and greatly simplify administrative processes. Vague, inaccurate, or improperly executed affidavits can lead to delays, or even rejections. By focusing on proper drafting, applicants can reduce bureaucracy and enhance service delivery in both judicial and administrative contexts.

Government agencies may reject affidavits that are vague, inaccurate, or improperly executed. To avoid delays, applicants must ensure affidavits comply with legal requirements. Well-drafted affidavits simplify administrative processes, reduce bureaucracy, and improve service delivery.

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 administrative purpose, it is 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 via Email, through our Contact Us page or by Scheduling a Consultation. Our experienced legal team will guide you through the process and ensure your document meets all legal requirements.