OATHS AND STATUTORY DECLARATIONS
In Kenya, the conduction of swearing of oaths is outlined in the Oaths and Statutory Declarations Act CAP 15. This Act outlines the appointment and management of Commissioners authorized to commission an oath based on its true nature before a deponent. Today we will look at the recently decided case of DARDANELLI & 6 OTHERS V TILITO & 3 others (E041 of 2024) [2025] KEELC 392 (KLR) which brought light to the issue of affidavits being commissioned abroad and without a Commissioner present;
Facts of the case;
This case was related to the defence of a suit filed against a company (hereinafter known as the 2 nd Defendant) and a supporting affidavit was attached to the application. The supporting affidavit was contested since the Deponent - Company Director (hereinafter known as the 1st Defendant) didn't seem to have the Company's permission to swear it. In their application, the first and second defendants requested that the case be sent to arbitration and the matter to be settled through that Alternative Dispute Resolution process.
The affidavit of the first defendant, which was sworn on May 23, 2024, provided support for the application. The affidavit was disputed on two principal grounds:
1. The deponent was not authorized by the company to swear it; and
2. The deponent misled the court by claiming that the document was sworn in Kenya but at the time of its swearing, the deponent was not in Kenya.
In addition to the above grounds, the Commissioner did not commission the oath in the presence of the deponent as required by the Oaths and Statutory Declarations Act CAP 15.
Issues;
i. Whether the certificate under section 106B of the Evidence Act on admissibility of electronic records was required to prove that an affidavit was transmitted to the deponent online, executed, returned and downloaded then commissioned;
ii. What was the effect of commissioning of an affidavit whose deponent did not appear before the commissioner for oaths; and
iii. Whether a director of a company had the mandate to authorize an advocate to swear an affidavit in support of an application where a board resolution was not a requisite for an advocate to file a suit on the company’s behalf.
Judgement held;
1. Authority to swear affidavits The court held that the director of the company, also known as the 1st Defendant had sufficient and legal authority to instruct an advocate to swear an affidavit on behalf of the 2nd Defendant.
2. Swearing an affidavit out of Kenya The 1st Defendant was not in Kenya at the time of the swearing and the commissioning was not done before the deponent.
3. Commissioning Affidavits The courts emphasized on the importance of having a legal document such as an affidavit to be sworn, in the physical or virtual presence of a Commissioner or Oaths as the deponent must confirm that he/she fully understands the contents of the affidavit. The Commissioner must also verify the identity of the deponent as they swear in.
4. Virtual Swearing The court expressed their concern with the virtual swearing of the affidavit as it must have proper safeguards to protect all the parties involved. The following must be ensured in the circumstance that virtual swearing takes place;
i. The Commissioner and Deponent interacted live and to identify the virtual platform used; ii.
The Commissioner knew or verified the Deponent’s identity; and
iii. The Affidavit was read aloud, understood and confirmed by the deponent.
5. Section 106B of the Evidence Act Since the affidavit was executed digitally, the court required a certificate to prove originality as per Section 106B of the Evidence Act;
‘Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied on optical or electro-magnetic media produced by a computer (herein referred to as "computer output") shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein where direct evidence would be admissible'
According to Section 106D, it outlines the verification of the electronic signature. For one to prove that the virtual/electronic signature is valid, one must obtain a Certificate to verify on the same. When we also look at section 106H, ‘…any information listed in the electronic signature certificate is correct, except for information which has not been verified, if the certificate was accepted by the subscriber’ it states that once the Certificate has been obtained based on the verified affidavit, the information stated is proved to be true to its nature. The Sections 106B, 106D and 106H insist on how much the certificate weighs when taken to court as it proves the originality and truth to the information verified and sworn.
Conclusion;
In the end, the court ruled that the affidavit was not properly commissioned as per the sections mentioned above as it lacked the necessary Certificate mentioned in the Evidence Act Section 106B. The court found the document to be inadmissible and struck it out. This case speaks on the weight and importance of affidavits and that they MUST be properly Commissioned with all legal safeguards observed. Even as we embrace the digital era for purposes of convenience and efficiency, we must constantly remind our fellow legal practitioners that formality and integrity are the pillars of justice in this society.
