PROCEDURE TO OBTAIN AN AFFIDAVIT

AFFIDAVITS AND STATUTORY DECLARATIONS

An affidavit is a written statement of facts voluntarily made by a deponent under an oath or affirmation administered by a person authorized to do so by law. This is basically a written statement from an individual which is sworn to be true.

A statutory declaration is a sworn statement made in a prescribed form before a justice of the peace, notary public, and commissioner of oaths or other person having authority therein under any law for the time being in force to take or receive a declaration and authorized to administer an oath.

Essentially there is no difference in drafting a statutory declaration and an affidavit. The only difference comes where statutory declarations are used in extrajudicial proceedings while affidavits are usually used in court, declarations are used in non-contentious matters while affidavit are used in contentious matters and declarations are not sworn under oath in court however they are still commissioned by a commissioner for oaths.

TYPES OF AFFIDAVITS

Affidavits vary according to their “purpose” “circumstances” or “subject matter”. We have the following examples of affidavits required in Kenya:

1. Affidavit of Proof of Marriage
2. Affidavit of Loss of Document
3. Affidavit of Change of Particulars
4. Affidavit of Paternity/ Parentage
5. Affidavit of Guardianship
6. Affidavit of Resignation as a director
7. Affidavit of Source of Funds
8. Affidavit of Single Status
9. Affidavits for change of NTSA/TIMS particulars
10. Affidavit of proof of name.

LAWS AND REGULATION

Affidavits in Kenya are regulated under the Oaths and Statutory Declarations Act, Chapter 15 of the Laws of Kenya. Other laws that may require affidavits to be sworn by a deponent include The Interpretation and General provision Act, The Civil Procedure Act, The Central Bank of Kenya Act, The NHIF Act among others.

1. Affidavits used in court during legal proceedings are those that accompany court applications such as plaints, chamber summons, petitions, notice of motions and defence.
2. This also includes replying affidavits and further affidavits that accompany pleadings.
3. An Affidavit of service provides proof of service of summons or documents by a certified process server to a party in a legal proceeding.
4. Affidavits can be issued for things such as confirming marital status and spousal consent for some transactions under the NHIF Act, Land Act and Land Registration Act
5. Affidavits are also used to change personal identification information such as names, phone numbers, certificate details, basic information on online website portals etc

Many government offices require affidavits for all sorts of applications and processes where they wish to have additional comfort on the facts presented before them”.

Court issued affidavits are those affidavits that are sworn by witnesses for purposes of giving evidence in court during court proceedings and are usually relied upon as testimonies while adducing evidence. Notary public administered oaths or taken affidavits can be used universally because their jurisdiction is applicable in other countries

Whereas a Notary Public in Kenya has all the powers that a Commissioner for Oaths possesses, a notary is used in instances where affidavits are to be used outside the Kenya jurisdiction (especially outside the commonwealth countries).  A notary public in Kenya must have at least five years of practice as an advocate, documents to be used internationally are attested by a notary public and must be registered with the Supreme Court of Kenya

PROCEDURE TO OBTAIN AN AFFIDAVIT

The process of getting an affidavit in Kenya follows the three understated steps:

• The deponent or a lawyer draws up the affidavit;
• The deponent takes the oath in the presence of a commissioner for oaths/notary public/magistrate;
• The commissioner for oaths/notary public/magistrate swears and issues the affidavit.

Affidavits in Kenya are usually drawn up by lawyers and endorsed before a commissioner for oaths/notary public/court officer where then the deponent personally appears before the Commissioner for Oaths.

• A person who can depone an affidavit has to be person of sound mind that is; usually above 18 years old and of sound disposition to get the facts and subject matter of the affidavit;
• The Commissioner for Oaths prepares an official affidavit document with the sworn statement based on the deponent’s information and belief;
• The deponent executes the affidavit in the presence of the advocate serving as a commissioner for oaths;
• The Commissioner of Oaths attests to the affidavit by stamping and executing the document;
• If the affidavit is to be used in any legal proceedings, it must be drawn up by the party in person or by a qualified advocate as defined in Section 34 of the Advocates Act, Chapter 16 of the Laws of Kenya.
• The information in the affidavit should first be verified by the commissioner for oaths/notary public before execution.

Any natural person is allowed to depose an affidavit, with the exception of minors or persons not mentally capable to comprehend the oath. Also companies cannot swear Affidavits as a directors or officials of a company or any legal entity can swear an affidavit on behalf of the company.

 ESSENTIALS OF AN AFFIDAVIT

1. Postal Address of the deponent
2. National Identification Number of the Deponent if Kenyan or Passport Number if foreigner
3. Nationality of the deponent and citizenship status
4. Age of the deponent and soundness of mind must be stated
5. Signature of the deponent
6. It is divided into paragraphs numbered consecutively
7. It is a general rule that a deponent can only give facts that are within his/her personal knowledge.
8. Where the deponent is swearing the affidavit on behalf of other parties, he must state so in the affidavit.
9. The affidavit must be dated by the deponent in the presence of an advocate.
10. All affidavits must be commissioned by a commissioner of oaths

PENALTY FOR FALSE UTTERANCES

An affidavit or a statutory declaration is a legal document and as such contains a penalty where one makes a false utterance in one. If any person knowingly and willfully makes any statement which is false in a material particular in a statutory declaration, he shall be guilty of an offence and liable to imprisonment for a term not exceeding two years or to a fine not exceeding two thousand shillings.