Ask a lawyer:
What is an affidavit and what are the procedures for it to be valid

Introduction

This response addresses the definition of an affidavit and the procedures required for its validity under Kenyan law. The information provided is based on the interpretation of relevant statutes and case law. It is crucial to remember that this information is for educational purposes and should not be considered legal advice. For specific legal guidance, consultation with a qualified legal professional is recommended.

Table of Contents

1. Sources of Law

2. Definition of an Affidavit

3. Essential Elements of a Valid Affidavit 3.1. The Affidavit's Title and Heading 3.2. The Affiant's Identification and Capacity 3.3. The Statement of Facts 3.4. The Oath or Affirmation 3.5. The Commissioner of Oaths' Signature and Seal

4. Procedures for a Valid Affidavit 4.1. Preparation of the Affidavit 4.2. Swearing or Affirming the Affidavit 4.3. Filing the Affidavit

5. Consequences of an Invalid Affidavit

6. Conclusion

1. Sources of Law

This response draws upon the following sources of Kenyan law:

• The Oaths and Statutory Declarations Act (Cap. 15)

• The Evidence Act (Cap. 80)

• Relevant case law interpreting these statutes.

2. Definition of an Affidavit

An affidavit, as defined under Kenyan law, is a sworn statement in writing made before a person authorized to administer oaths, such as a Commissioner of Oaths. It is a formal declaration of facts, made under oath or affirmation, and intended to be used as evidence in legal proceedings or other official matters. The Oaths and Statutory Declarations Act (Cap. 15) governs the process of making and using affidavits. The Evidence Act (Cap. 80) outlines the admissibility of affidavits as evidence in court.

3. Essential Elements of a Valid Affidavit

Several crucial elements must be present for an affidavit to be considered valid and admissible in Kenyan courts. These include:

3.1. The Affidavit's Title and Heading:

The affidavit should clearly state its purpose and the court or authority before which it is intended to be used. It should also include the case name (if applicable) and the case number. A poorly titled affidavit can lead to confusion and rejection.

3.2. The Affiant's Identification and Capacity:

The person making the affidavit (the affiant) must be clearly identified. This typically includes their full name, address, occupation, and national identity card number. The affiant must also have the legal capacity to make a sworn statement; for example, they must be of sound mind and not under duress. Minors or individuals lacking mental capacity cannot make valid affidavits without proper legal representation.

3.3. The Statement of Facts:

The body of the affidavit must contain a clear and concise statement of facts within the affiant's personal knowledge. Hearsay evidence or opinions are generally inadmissible. The facts presented must be relevant to the matter at hand and should be supported by evidence where possible. Any inconsistencies or contradictions can significantly weaken the affidavit's credibility.

3.4. The Oath or Affirmation:

The affiant must swear or affirm the truthfulness of the statements made in the affidavit. This is typically done before a Commissioner of Oaths. The oath or affirmation is a crucial element, as it signifies the affiant's commitment to the truthfulness of their statements. A false affidavit can lead to serious legal consequences, including perjury charges.

3.5. The Commissioner of Oaths' Signature and Seal:

The affidavit must be signed and sealed by a duly authorized Commissioner of Oaths. The Commissioner's signature and seal verify the authenticity of the oath or affirmation and confirm that the affidavit was properly administered. The absence of the Commissioner's signature and seal renders the affidavit invalid.

4. Procedures for a Valid Affidavit

The process of creating a valid affidavit involves several key steps:

4.1. Preparation of the Affidavit:

The affidavit should be carefully drafted to ensure accuracy and clarity. It should be written in simple, straightforward language, avoiding legal jargon where possible. The facts presented must be accurate and verifiable. Any supporting documents should be attached to the affidavit.

4.2. Swearing or Affirming the Affidavit:

The affiant must appear before a Commissioner of Oaths to swear or affirm the truthfulness of the statements made in the affidavit. The Commissioner will administer the oath or affirmation and witness the affiant's signature. The Commissioner must ensure that the affiant understands the nature and consequences of making a false statement under oath.

4.3. Filing the Affidavit:

Once sworn or affirmed, the affidavit should be filed with the relevant court or authority. The filing process varies depending on the court or authority involved. It is crucial to ensure that the affidavit is properly filed to avoid delays or rejection.

5. Consequences of an Invalid Affidavit

An invalid affidavit may be rejected by the court or authority before which it is presented. This can have serious consequences for the party relying on the affidavit. In some cases, an invalid affidavit may lead to sanctions against the affiant or their legal representative. A false affidavit can lead to criminal charges of perjury.

6. Conclusion

The validity of an affidavit in Kenya hinges on strict adherence to the procedures and requirements outlined in the Oaths and Statutory Declarations Act (Cap. 15) and the Evidence Act (Cap. 80). Understanding these requirements is crucial for ensuring that affidavits are legally sound and admissible in court. Any deviation from these requirements can render the affidavit invalid, potentially leading to significant legal repercussions. It is always advisable to seek legal counsel when preparing and filing affidavits to ensure compliance with the law.