Attestation of Affidavits. What is the Law?

The Kenyan Oaths & Statutory Declarations Act (Cap 15) in section 5 states: "Every Commissioner of Oaths before whom an oath or affidavit is taken or made shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made." This section is causing problems as it is increasingly being used by Advocates to have Verifying Affidavits struck out as this would in effect result in the whole suit being struck out before it could even take off. In Eastern and Southern Africa Development Bank -vs- African Greenfields Limited and 2 others, the place where an Affidavit was sworn was not stated. Hewett J held that the omission of the words "At Nairobi" was fatal and the Affidavit was struck out. Onyango-Otieno J in Narok Transit Hotel Limited and Another -vs- Barclays Bank of Kenya Limited, held that if the place and date when the Affidavit was sworn is not indicated, the Affidavit is a non-Affidavit and must be expunged from the record. He considered the argument that the rubber stamp of the Commissioner of Oaths indicated that the Affidavit was made at Nairobi, but rejected such argument saying that he address in that stamp will remain the Commissioners address even if the Affidavit is taken outside Nairobi. See also Glad Ak Finance Limited -vs- Rosaline Macharia where Onyango-Otieno J held that he could not act on an Affidavit which was not dated.

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