An affidavit is a written statement from an individual which is sworn to be true. It is an oath that what the individual is saying is the truth. An affidavit is used along with witness statements to prove the truthfulness of a certain statement in court.
Affidavits in Kenya are regulated under the Oaths and Statutory Declarations Act, Chapter 15 of the Laws of Kenya.
Many government processes require affidavits for all sorts of applications and processes where they wish to have additional comfort on the facts presented before them. 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.
Such a statement is witnessed as to the authenticity of the affiant’s signature by a taker of oaths, such as a Notary Public or Commissioner of Oaths.
An affidavit Contains,
- a commencement which identifies the affiant;
- an attestation clause, usually a jurat, at the end certifying that the affiant made the statement under oath on the specified date;
- signatures of the affiant and person who administered the oath.
In some cases, an introductory clause, called a preamble, is added attesting that the affiant personally appeared before the authenticating authority. An affidavit may also recite that the statement it records was made under penalty of perjury.
An affidavit that is prepared for use within the context of litigation may also include a caption that identifies the venue and parties to the relevant judicial proceedings.
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.
Who can offer an affidavit?
An individual can offer an Affidavit, as long as they have the mental capacity to understand the seriousness of the oath. The contents of an affidavit reflect the personal knowledge of the individual making the statement. This means that an individual making an affidavit cannot be penalised for failing to include information of which they were not aware.
Personal knowledge can in some circumstances, include personal opinion rather than fact.
In certain cases, an affidavit can be offered on behalf of somebody else. This may be the case in relation to the guardianship of an individual who is severely mentally ill or a minor.
Difference between a Commissioned and Notarised affidavit
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 Legal 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.
Authored by Henry Njuguna Adv, MCIArb
We at NKN will gladly help through this process. Reach out on 0722382783.