Kenya: Types of affidavits used, including differences between court-issued and notary-issued affidavits; requirements and procedure for the issuance of affidavits; availability of fraudulent affidavits (2019–June 2021)
1. Use of Affidavits
A 2018 article on the website of Silvana & Associates, a Kenyan law firm that specializes in corporate and commercial, probate and administrative, real estate and conveyancing, and employment law as well as alternative dispute resolution (Silvana & Associates n.d.), states that 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" (Silvana & Associates 18 July 2018). In correspondence with the Research Directorate, a managing partner at a Kenyan law firm, whose areas of practice include commercial law, constitutional and human rights law, occupational and environmental health law, and alternative dispute resolution, indicated that affidavits are "typically" used in court proceedings, but they also have broader uses and are "often" used to confirm "the truth of matters stated in them" (Managing Partner 22 June 2021). In correspondence with the Research Directorate, a lawyer at Silvana & Associates stated that affidavits "are used in court applications to accompany legal pleadings and are usually sworn by the person alleging or declaring the matters" (Lawyer 10 June 2021). The same source indicated that affidavits have other uses, including to confirm the status of a marriage, to apply for a visa, and to confirm an individual's name as well as for directorial resignations, forfeiture of shares, and other changes to a company or business (Lawyer 10 June 2021).
The 2018 Silvana & Associates article indicates that "[a]ffidavits vary according to their 'purpose'[,] 'circumstances' or 'subject matter'" and gives the following examples of affidavits that are "required in Kenya":
- Affidavit of proof of marriage
- Affidavit of loss of document
- Affidavit of change of particulars
- Affidavit of paternity/parentage
- Affidavit of guardianship
- Affidavit of resignation as a director
- Affidavit of source of funds
- Affidavit of single status
- Affidavits for change of National Transport and Safety Authority (NTSA) / Transport Integrated Management Systems (TIMS) particulars
- Affidavit of proof of name (Silvana & Associates 18 July 2018).
The 2018 Silvana & Associates article indicates that affidavits are regulated under the Oaths and Statutory Declarations Act (Silvana & Associates 18 July 2018).
The Managing Partner stated that there are two types of affidavits in Kenya: affidavits "prope[r]" and statutory declarations (Lawyer 22 June 2021). Sources indicate that affidavits are ["usually" (Silvana & Associates 18 July 2018) or "generally" (Managing Partner 22 June 2021)] used for court proceedings (Managing Partner 22 June 2021; Silvana & Associates 18 July 2018), ["typically" civil proceedings (Managing Partner 22 June 2021)], while statutory declarations are used in "extrajudicial proceedings" (Silvana & Associates 18 July 2018). The same sources add that statutory declarations are used ["primarily" (Managing Partner 22 June 2021)] in "non-contentious" matters (Managing Partner 22 June 2021; Silvana & Associates 18 July 2018), while affidavits are used in "contentious" matters (Silvana & Associates 18 July 2018). The lawyer at Silvana & Associates indicated that affidavits used in court are "part of pleadings" and statutory declarations "are used for [the] specific purpose of swearing an oath to confirm or declare a specific matter" (Lawyer 10 June 2021). The 2018 Silvana & Associates article notes that there is "[e]ssentially … no difference" between drafting a statutory declaration and drafting an affidavit (Silvana & Associates 18 July 2018).
The lawyer at Silvana & Associates provided the following examples of court affidavits:
- Verifying affidavit – verifies that the "averments made in a plaint" are correct and sworn by the plaintiff
- Supporting affidavit – "supports Notice of Motion applications seeking orders from the court"
- Further affidavit – "sworn to accompany further documents where an original affidavit has already been issued"
- Replying affidavit
- Affidavit of service
- Affidavit "accompanying petitions in probate and administration applications" (Lawyer 10 June 2021).
The lawyer at Silvana & Associates provided the following examples of statutory declarations:
- Affidavit of proof of names
- Affidavit of proof of marriage
- Affidavit of loss of document
- Affidavit of change of particulars
- Affidavit of paternity/parentage
- Affidavit of guardianship
- Affidavit of resignation as a director
- Affidavit of source of funds
- Affidavit of single status (Lawyer 10 June 2021).
The lawyer from Silvana & Associates indicated that court affidavits "are used in court during legal proceedings" and "accompany court applications such as plaints, chamber summons, petitions, [and] notices of motion and defence" (Lawyer 10 June 2021). The same source noted that court affidavits are sworn by "witnesses or applicants of legal proceedings" (Lawyer 10 June 2021).
The lawyer from Silvana & Associates indicated that notary-issued affidavits are "those declarations made by an individual to swear oath to confirm certain matters such as loss of a document, marital status, proof of name, residential details, [and] basic information" (Lawyer 10 June 2021).
2. Issuing Authorities
Section 4 of the Oaths and Statutory Declarations Act provides the following on the powers of a commissioner for oaths:
(1) A commissioner for oaths may, by virtue of his commission, in any part of Kenya, administer any oath or take any affidavit for the purpose of any court or matter in Kenya, including matters ecclesiastical and matters relating to the registration of any instrument, whether under an Act or otherwise, and take any bail or recogni[z]ance in or for the purpose of any civil proceeding in the High Court or any subordinate court … (Kenya 2003)
The lawyer at Silvana & Associates stated that a notary public "must have at least five years of practice as an advocate" and has "all" the same powers as a commissioner for oaths; they are used to attest affidavits for use outside of Kenya (Lawyer 10 June 2021). The same source also noted that, in addition to being attested by a notary, documents for international use "must be registered with the High Court of Kenya" (Lawyer 10 June 2021). The Managing Partner indicated that an affidavit that will be used abroad must be attested by a notary public, while a commissioner for oaths attests affidavits or statutory declarations that will be used within Kenya (Managing Partner 22 June 2021). The same source stated that
[i]t is arguable that judges of the High Court (or courts of equal status, currently the Environment and Land Court and the Employment and Labour Relations Court) as well as judges of higher courts (the Court of Appeal and the Supreme Court) may attest affidavits and statutory declarations for use abroad, on account of the fact that they have countrywide territorial jurisdiction. (Managing Partner 22 June 2021)
3. Procedure to Obtain an Affidavit
The Managing Partner indicated that advocates who are licensed to practice "will prepare an affidavit for a fee" (Managing Partner 22 June 2021). The same source noted that "[s]ome affidavits, for specific use," are issued in a "standard form" by courts or government agencies (Managing Partner 22 June 2021). The lawyer at Silvana & Associates stated that affidavits are available at law firms with a commissioner of oaths or a notary public, at "courts where a magistrate is able to commission an affidavit," and at some public offices, including the state law office (Lawyer 10 June 2021).
4. Provision of Supporting and Identity Documents in the Issuance of Affidavits
According to the lawyer at Silvana & Associates, the process of getting an affidavit in Kenya is as follows:
- The deponent provides their original national ID (or passport if they are a foreigner), their home and mailing address, and documents with the details to be included in the affidavit
- The deponent or lawyer prepares the affidavit
- The deponent "takes the oath" before a commissioner for oaths, a notary public, or a magistrate
- The commissioner for oaths, notary public, or magistrate "swears and issues 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 signs, or executes, the affidavit in front of the advocate acting as commissioner for oaths
- The commissioner for oaths attests the affidavit by stamping and executing the document
- An affidavit for use in legal proceedings "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 (Lawyer 10 June 2021).
The same source noted that an affidavit is "usually" drawn up by a lawyer and then the deponent "personally appears" to endorse it in the presence of a commissioner for oaths, notary public, or court officer (Lawyer 10 June 2021). The source further stated that, in order to depose an affidavit, an individual must be "of sound mind" and "of sound disposition to get the facts and subject matter of the affidavit"; "usually" they must also be above 18 years old (Lawyer 10 June 2021).
5. Affidavit Fees
The lawyer at Silvana & Associates indicated that they charge 2,000 Kenyan Shillings (KES) [C$23] for a "standard affidavit" (Lawyer 10 June 2021).
The information in the following paragraph was provided by the Managing Partner:
The fee for preparing an affidavit is "not fixed" and depends on the length, purpose, urgency, complexity, time spent, and "other relevant circumstances." A simple one-page affidavit for use "locally" would cost approximately C$20.00 to C$30.00 (but could cost as much as C$40.00 to C$60.00). There is an additional fee of approximately C$3.00 to C$5.00 payable to the commissioner for oaths. Lawyers will charge more for affidavits for use abroad and that affidavits for use abroad will cost approximately C$40.00 to C$60.00 or more, depending on the factors mentioned above. The fee for notary attestation ranges from approximately C$30.00 to C$60.00, but "could be more" (Managing Partner 22 June 2021).
6. Appearance and Security Features
The lawyer at Silvana & Associates indicated that the "standard" format of affidavit includes the following:
- Title/heading:
"Republic of Kenya
In the matter of [the] Oaths and Statutory Declarations Act, cap 15 of the Laws of Kenya
In the matter of confirmation of marriage/names/residence/paternity, etc."
- Home or mailing address of the deponent
- National identification number of the deponent if they are Kenyan or passport number if they are not
- Nationality and citizenship status of the deponent
- Age and "soundness of mind" of the deponent
- Signature of the deponent
- Consecutively numbered paragraphs that each pertain to a "separate matter" "aver[red]" by the deponent
- If the deponent is swearing the affidavit on behalf of other parties, they "must" state this in the affidavit
- A date affixed by the deponent in the presence of an advocate
- All affidavits must be commissioned by a commissioner of oaths (Lawyer 10 June 2021).
The Managing Partner indicated that affidavits "are not normally prepared on a letterhead but will necessarily bear the signature of the attesting commissioner for oaths or notary public, as well as her/his official stamp" (Managing Partner 22 June 2021). The lawyer at Silvana & Associates explained that affidavits are "individual declaration[s]" and "should not have letterheads, whether personal or company" (Lawyer 10 June 2021). The Managing Partner noted that in the past, affidavits for use outside Kenya "typically" had a "notarial seal (either adhesive or waxed)"; however, adhesive seals are "hardly" available in stationary stores "nowadays" and wax seals are no longer in use (Managing Partner 22 June 2021). The same source added that "[a] number of" lawyers have started to use rubber stamps, which include their admission number and annual practising certificate number, "but this practice is yet to fully gain currency" (Managing Partner 22 June 2021). The lawyer at Silvana & Associates indicated that if an affidavit is used in court, the title should give the case number and the parties to the case exactly as in the application it "accompanies or supports" (Lawyer 10 June 2021). The same source also noted that it should contain the date, place, and signature of the deponent and the signature and stamp of a commissioner of oaths, the signature of a magistrate, or the seal of a notary public (Lawyer 10 June 2021).
A blank copy of an example of an affidavit regarding a lost passport, available on the website of the Kenyan embassy in Doha, Qatar, is attached to this Response.
7. Availability of Fraudulent Affidavits
The Managing Partner indicated that "fraudulent and false [a]ffidavits are fairly common in Kenya" (Managing Partner 22 June 2021), while the lawyer at Silvana & Associates stated that fraudulent affidavits are not "prevalent" (Lawyer 10 June 2021). The latter source added that, because affidavits and statutory declarations are legal documents, there is a penalty for making a "false utterance" in one; "[i]f any person knowingly and wilfully 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 [KES]" (Lawyer 10 June 2021). Further information on the availability of fraudulent documents could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.
References
Kenya. 2003 (amended 2012). Oaths and Statutory Declarations Act. [Accessed 4 June 2021]
Lawyer, Silvana & Associates. 10 June 2021. Correspondence with the Research Directorate.
Managing Partner, Kenya. 22 June 2021. Correspondence with the Research Directorate.
Silvana & Associates. 18 July 2018. "Affidavits in Kenya." [Accessed 4 June 2021]
Silvana & Associates. N.d. "About Us." [Accessed 4 June 2021]
Additional Sources Consulted
Oral sources: Federation of Women Lawyers Kenya; Kenya – High Commission in Ottawa, Kenya Police Service, Ministry of Interior and Coordination of National Government; Kenya-based lawyers (12); Kenya Human Rights Commission; Kituo Cha Sheria; Law Society of Kenya; Law Society of Kenya – Nairobi Branch.
Internet sites, including: Amnesty International; Australia – Department of Foreign Affairs and Trade; BBC; Bertelsmann Stiftung; Daily Nation; The EastAfrican; ecoi.net; Factiva; Freedom House; The Guardian; Human Rights Watch; Kenya – High Commission in Ottawa; Kenya Broadcasting Corporation; Kenya Law; Kenya News Agency; Kenyans.co.ke; Law Society of Kenya; The Standard; The Star; UK – Home Office; UN – Human Rights Council, Refworld; US – Department of State, Embassy in Kenya; The Washington Post.
Attachment
Kenya. N.d. Embassy in Doha. Blank sample of an affidavit. Translated into French by the Translation Bureau, Public Services and Procurement Canada. [Accessed 6 July 2021]