Kenya: Types of affidavits used, including difference between court-issued and notary-issued affidavits; requirements and procedures for the issuance of affidavits; availability of fraudulent affidavits (2014-July 2016)

Research Directorate, Immigration and Refugee Board of Canada, Ottawa

1. Use of Affidavits

In correspondence with the Research Directorate, a lawyer at Ashitiva and Company Advocates, a Kenyan law firm that specializes in corporate and commercial litigation, and conveyance law (Ashitiva and Company Advocates n.d.), indicated that

[a]n 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 … (ibid. 29 July 2016)

Affidavits are regulated under the Oaths and Statutory Declarations Act, Chapter 15 of the Laws of Kenya (ibid.; Lawyer at TripleOKlaw Advocates 28 July 2016). A copy of the act is attached to this Response (Attachment 1).

Sources indicated that affidavits vary according to their "purpose" (ibid.), "circumstances" (Lawyer at Gitonga-Mwangi & Company Advocates 29 July 2016) or "subject matter" (Lawyer at Ashitiva and Company Advocates 29 July 2016). According to the lawyer at Ashitiva and Company Advocates, affidavits can be issued for things such as confirming marital status and spousal consent for some transactions under the Land Act and Land Registration Act (ibid.). In correspondence with the Research Directorate, a representative from Kituo Cha Sheria, a Kenyan NGO "committed to helping the disadvantaged … people in Kenya access justice" (Kituo Cha Sheria n.d.), indicated that affidavits are also used to change personal identification information and for marriages (ibid. 29 July 2016). In correspondence with the Research Directorate, a lawyer at Gitonga-Mwangi & Company Advocates, a Kenyan law firm that specializes in property and conveyance law (LSK n.d.), indicated that "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" (Lawyer at Gitonga-Mwangi & Company Advocates 29 July 2016).

According to two sources, there is no difference between court-issued affidavits and notary-issued affidavits (Lawyer at TripleOKlaw Advocates 28 July 2016; Kituo Cha Sheria 29 July 2016). However, the lawyer at Ashitiva and Company Advocates explained that

court 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 [p]ublic administered oaths or taken affidavits can be used universally because their jurisdiction is applicable in [other] countries. (29 July 2016)

An example of an affidavit for a lost passport, available on the website of the Embassy of Kenya in Washington, DC, is attached to this Response (Attachment 2). Further information on the different types of affidavits being used in Kenya (apart from court-issued affidavits) could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

2. Issuing Authorities

The Oaths and Statutory Declarations Act, Chapter 15, indicates the authorities who can issue and swear affidavits in Kenya (Kenya 2003).

Sources indicated that notaries public can also issue and swear affidavits (Lawyer at TripleOKlaw Advocates 28 July 2016; Lawyer at Daly & Inamdar Advocates 28 July 2016). In correspondence with the Research Directorate, a lawyer at Daly & Inamdar Advocates, a Kenyan law firm that specializes in corporate, commercial, and property law, as well as civil litigation and arbitration (Daly & Inamdar Advocates n.d.), specified that

there is a difference between a commissioner for oaths and a notary public. Whereas a notary 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). (28 July 2016)

Similarly, other sources indicated that documents to be used internationally are attested by a notary public (Lawyer at TripleOKlaw Advocates 28 July 2016; Lawyer at Gitonga-Mwangi & Company Advocates 29 July 2016). Sources indicated that a notary public must have at least five years of practice as an advocate (Lawyer at Gitonga-Mwangi & Company Advocates 29 July 2016; Lawyer at Ashitiva and Company Advocates 29 July 2016) and must be registered with the High Court of Kenya (ibid.).

3. Procedure to Obtain an Affidavit

In correspondence with the Research Directorate, a lawyer at TripleOKlaw Advocates, a Kenyan law firm with expertise in practice areas including banking, intellectual property, and procurement (The Legal 500 n.d.), explained that 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. (9 August 2016)

The lawyer at Daly & Inamdar Advocates explained that affidavits are "usually drawn up by lawyers" and "endorsed before a commissioner for oaths/notary public/court officer" who "must be different from the lawyer who drew up the affidavit" (Lawyer at Daly & Inamdar Advocates 28 July 2016). The same source underlined that the "deponent personally appears before the [c]ommissioner for [o]aths" (ibid.).

According to the lawyer at Gitonga-Mwangi & Company Advocates,

[o]ne can prepare [an affidavit] themselves, or have an [a]dvocate draw it up. However, once drawn, it has to be signed before a [c]ommissioner for [o]aths, who attests the execution. (29 July 2016)

The lawyer at Ashitiva & Company Advocates described the procedure to obtain an affidavit as follows:

• The commissioner for oaths[,] after ascertaining [that the deponent] is 18 years old and of sound mind[,] gets the facts and subject matter of the affidavit from the deponent;
• 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. (29 July 2016)

The lawyer at TripleOKlaw Advocates stated that 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, (Lawyer at TripleOKlaw Advocates 28 July 2016), a copy of which is attached to this Response (Attachment 3). According to the same source, "the information in the [a]ffidavit should first be verified by the [m]agistrate, [c]ommissioner for oaths/[n]otary [p]ublic before execution" (ibid.).

Sources stated that any individual is allowed to depose an affidavit, with the exception of minors or persons not mentally capable to comprehend the oath (Lawyer at Ashitiva and Company Advocates 29 July 2016; Lawyer at TripleOKlaw Advocates 28 July 2016). According to the lawyer at TripleOKlaw Advocates, "companies cannot swear [a]ffidavits" (28 July 2016). However, according to the lawyer at Ashitiva and Company Advocates "directors or officials of a company or any legal entity can swear an affidavit on behalf of the company" (29 July 2016).

4. Provision of Supporting and Identity Documents in the Issuance of Affidavits

According to sources, the deponent's identity card or passport ["or some form of identification" (Lawyer at TripleOKlawAdvocates 28 July 2016)] is normally required when swearing an affidavit (ibid.; Lawyer at Ashitiva and Company Associates 29 July 2016).

As far as supporting documents are concerned, the lawyer at TripleOKlaw Advocates stated that the deponent must provide proof of the information they declare, "unless the deponent or the information is personally known" to the magistrate, commissioner for oaths, or notary public (28 July 2016). Without providing further details, the lawyer at Daly & Inamdar Advocates indicated that the required exhibits, or supporting documentary evidence, are attached to the affidavit and depend on the contents and nature of the affidavit (28 July 2016). In addition, the lawyer at Ashitiva and Company Advocates stated that "it is a requirement" that the deponent present original supporting documents (29 July 2016).

5. Affidavit Fees and Issuance of Receipt

The Oaths and Statutory Declarations Act, Chapter 15, indicates that "[a] commissioner for oaths shall, in the exercise of any of the powers mentioned in subsection (1), be entitled to charge and be paid such fees as may be authorized by any rules of court for the time being" (Kenya 2003, Sec. 4 (2)). According to sources, the issuance of a receipt by the commissioner for oaths is not mandatory (Lawyer at TripleOKlaw Advocates 28 July 2016; Lawyer at Ashitiva and Company Associates 29 July 2016). Also, the lawyer at Gitonga-Mwangi & Company Associates indicated that fees for the commissioning or notarizing of documents are not regulated (Lawyer at Gitonga-Mwangi & Company Associates 29 July 2016). Sources indicated that the issuance of a receipt depends on the practice of the issuer (ibid.; Kituo Cha Sheria 29 July 2016), but deponents receive a copy of the affidavit (ibid.). The Lawyer at Ashitiva and Company Advocates indicated that the deponent pays the required fees to the commissioner for oaths and receives a receipt, although it is not mandatory (29 July 2016).

6. Verification of Affidavits

The lawyer at TripleOKlaw Advocates indicated that the "only" means to verify an affidavit is by asking the magistrate, commissioner of oaths or notary public who was present when the deponent was signing the affidavit (28 July 2016). Similarly, the lawyer at Daly & Inamdar Advocates explained that "[o]ne can go to the extent of getting the contact details of the commissioner for oaths/notary public and calling them to confirm that indeed the affidavit was sworn by the specified deponent before him/her" (28 July 2016). The lawyer at TripleOKlaw Advocates explained that all commissioners of oath and notaries "must have a valid Practicing Certificate for the current year," and a notary public must have, in addition, an "Annual Notarial Certificate," which could assist in determining if the issuer was entitled to sign the document at that point in time (Lawyer at TripleOKlaw Advocates 28 July 2016). In addition, sources indicate that "rolls of commissioners" are kept by the Registrar of the High Court (ibid.; Kituo Cha Sheria 29 July 2016) and the Chief Justice, which "the commissioner has to have signed" (ibid.). The lawyer at Ashitiva and Company Associates similarly indicated that the roll of commissioners is open to the public and that the name of the commissioner for oaths can also be confirmed by the Law Society of Kenya (29 July 2016).

The lawyer at Ashitiva and Company Advocates stated that affidavits are verified by confirming their security features (29 July 2016). However, the lawyer at Gitonga-Mwangi & Company Advocates gave the view that the "only verifying element would be confirmation from the person commissioning or notarizing the affidavit" (29 July 2016).

Information on the existence of a registry of court-issued affidavits could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

6.1 Security Features on Affidavits

The lawyer at Daly & Inamdar Advocates stated that the affidavit "must take the form prescribed under the Oaths and Statutory Declarations Act, Cap 15. of the Laws of Kenya (if it is a statutory declaration) [or] the format as prescribed under the Civil Procedure Rules (if it is an ordinary affidavit)" (28 July 2016).

Sources indicate that affidavits must have a jurat section which has the signatures of both the deponent and the issuing authority (Lawyer at TripleOKlaw Advocates 28 July 2016; Lawyer at Daly & Inamdar Advocates 28 July 2016). According to the Lawyer at Daly & Inamdar Advocates,

[t]he [c]ommissioner for [o]aths/[n]otary [p]ublic before whom an oath or affidavit is taken or made must state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made. The jurat must be in the body of the affidavit and not in a separate page. (ibid.)

Sources indicate that affidavits have a stamp or seal of the commissioner for oaths or notary public (Lawyer at TripleOKlaw Advocates 28 July 2016; Kituo Cha Sheria 29 July 2016; Lawyer at Daly & Inamdar Advocates 28 July 2016). The lawyer at Daly & Inamdar Advocates stated that

while the format remains the same … affidavits sworn before officers of the court are signed by the officer, stamped with the courts stamp and also sealed with the courts seal. Notary-issued affidavits and commissioner- issued affidavits are signed and stamped with [the] notary's or commissioner's stamp that bears his/her name and address plus the tag notary public or commissioner for oaths. (28 July 2016)

The lawyer at Ashitiva and Company Associates indicated that affidavits also have the deponent's identity card or passport number (29 July 2016). Corroborating and additional information on the security features of affidavits could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

7. Availability of Fraudulent Affidavits

Sources indicated that there are fraudulent affidavits in Kenya (Kituo Cha Sheria 29 July 2016; Lawyer at Gitonga-Mwangi & Company Advocates 29 July 2016; Lawyer at TripleOKlawAdvocates 28 July 2016). The lawyer at TripleOKlaw Advocates gave the view that forgeries and fraudulent affidavits "abound" in the country (ibid.). The same source indicated that "[m]any people" forge signatures and stamps of magistrates, commissioners of oaths, and notary public (ibid.). The lawyer at Gitonga-Mwangi & Company Advocates indicated that fraudulent affidavits are "[h]ighly likely," but that it is "hard to assess in the absence of statistics" (29 July 2016). The lawyer at Daly & Inamdar Advocates indicated that "while … fraudulent affidavits exist, we cannot establish accurately the frequency of such practice" (28 July 2016).

The Oaths and Statutory Declaration Act, Chapter 15, prescribes penalties associated with "unlawfully acting as commissioner for oaths" and "false declaration[s]" (Kenya 2003).

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

Ashitiva and Company Advocates. N.d. "Who We Are." [Accessed 3 Aug. 2016]

Daly & Inamdar Advocates. N.d. "Our Profile." [Accessed 3 Aug. 2016]

Kenya. 2003 (amended 2012). Oaths and Statutory Declarations Act (Laws of Kenya, Chapter 15). [Accessed 27 July 2016]

Kenya. 1989 (amended 2012). Advocates Act (Laws of Kenya, Chapter 16). [Accesssed 3 Aug. 2016]

Kituo Cha Sheria. 29 July 2016. Correspondence from a representative to the Research Directorate.

Kituo Cha Sheria. N.d. "Home". [Accessed 3 Aug. 2016]

Lawyer, Ashitiva and Company Advocates, Nairobi. 29 July 2016. Correspondence with the Research Directorate.

Lawyer, Daly & Inamdar Advocates, Nairobi. 28 July 2016. Correspondence with the Research Directorate.

Lawyer, Gitonga-Mwangi & Company Advocates, Nairobi. 29 July 2016. Correspondence with the Research Directorate.

Lawyer, TripleOKlaw Advocates, Nairobi. 9 August 2016. Correspondence with the Research Directorate.

Lawyer, TripleOKlaw Advocates, Nairobi. 28 July 2016. Correspondence with the Research Directorate.

The Legal 500. N.d. "TripleOKlaw Advocates". [Accessed 3 Aug. 2016]

Additional Sources Consulted

Oral sources: Kenya - Kenya Police Service, Ministry of Interior and Coordination of National Government; Kenya Human Rights Commission; Law Society of Kenya; Nine lawyers in Nairobi.

Internet sites, including: Amnesty International; ecoi.net; Factiva; Human Rights Watch; Jeune Afrique; Kenya News Agency; Standard Digital News; Transparency International; UN - Refworld; US - Department of State.

Attachments

1. Kenya. 2003 (amended 2012). Oaths and Statutory Declarations Act (Laws of Kenya, Chapter 15). [Accessed 27 July 2016]
2. Kenya. N.d. Embassy of the Republic of Kenya in Washington, DC. "Affidavit". [Accessed 27 July 2016].
3. Kenya. 1989 (amended 2012). Advocates Act (Laws of Kenya, Chapter 16). [Accesssed 3 Aug. 2016]