Introduction
Both an affidavit and statutory declaration can be defined as a legal document used in judicial and administrative processes to confirm facts or provide evidence. While both serve as formal statements, they have distinct characteristics, legal implications and uses.
This article explores the key distinctions between affidavits and statutory declarations, their legal framework in Kenya, and their practical applications.
Affidavits
An affidavit is a sworn statement made under oath or affirmation. The deponent (the person making the affidavit) swears or affirms that its contents are true before a Commissioner for Oaths, Notary Public, Judge or Magistrate. By doing so, the deponent legally binds themselves to the truthfulness of the facts presented.
Affidavits play a crucial role in court proceedings, administrative processes, and legal transactions. In court, they serve as evidence or confirm specific facts, eliminating the need for a witness to appear in person. For instance, in a civil case, an affidavit may verify the service of legal documents. Outside the courtroom, affidavits support applications such as obtaining a duplicate logbook when the original is lost or damaged.
Legal Framework: Affidavit
In Kenya, affidavits are mainly governed by the Oaths and Statutory Declarations Act. This statute outlines the procedures for swearing affidavits and the legal obligations of the deponent. Additional legal provisions may apply depending on the specific use of the affidavit, such as in succession matters or property transactions.
Several other statutes govern other aspects of an affidavit, including their content and format and the consequences of making a false statement under oath. You can learn more about the legal framework of affidavits from our article Understanding Affidavits in Kenya.
Statutory Declaration
On the other hand, a statutory declaration is a formal statement asserting that certain facts are true. Unlike an affidavit, it is not made under oath. Instead, the declarant makes the statement in the presence of a Commissioner for Oaths or a Magistrate without swearing or affirming an oath.
Statutory declarations are commonly used in administrative and non-judicial matters. They help verify facts in situations where an oath is unnecessary but formal confirmation is required. For example, they prove identity for public records, confirm property ownership, or facilitate name changes when Legally Changing Your Name.
Legal Framework: Statutory Declaration
Legal Reference: Like affidavits, statutory declarations are also governed by the Oaths and Statutory Declarations Act. While they carry significant legal weight, the penalties for making a false statutory declaration, though serious, do not involve perjury charges. However, the law still imposes penalties for knowingly submitting false information under a statutory declaration.
Key Differences Between Affidavits and Statutory Declarations:
| Aspect | Affidavit | Statutory Declaration |
|---|---|---|
| Oath Requirement | Sworn under oath or affirmation | Not sworn under oath |
| Common Uses | Legal proceedings, court evidence, administrative matters | Non-judicial matters, administrative processes |
| Legal Consequences for False Statements | Perjury charges | Penalties under statute but not perjury |
| Attachment of Evidence | Allows annexures or exhibits to support the statement | Can include supporting documents |
| Who Administers the Process? | Commissioner for Oaths, Notary Public, Magistrate | Commissioner for Oaths, Magistrate |
| Example | A party in a property dispute swears an affidavit confirming ownership | A business owner declares ownership of a company for registration purposes |
Conclusion
Understanding the difference between an affidavit and statutory declaration helps to ensure that you prepare the correct document for the intended purpose, comply with the legal requirements of the intended document, and prevent unintended consequences.
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