Court Affidavit (Kenya)

A Court Affidavit in Kenya confirms specified facts through a signed declaration sworn before a commissioner for oaths or notary.

Under the Civil Procedure Rules (2010 Revision) made pursuant to the Civil Procedure Act (Cap. 21), affidavits are the principal form of written evidence in interlocutory applications — including applications for injunctions, judicial review, stay of execution, and contempt of court. The deponent — the person making the affidavit — must state only facts within their personal knowledge or belief, clearly distinguishing between the two. Order 19 of the Civil Procedure Rules 2010 governs the use of affidavits in civil proceedings, including requirements for form, content, and the manner of swearing.

A Commissioner for Oaths in Kenya is a practising advocate of the High Court of Kenya appointed by the Chief Justice under Section 5 of the Oaths and Statutory Declarations Act (Cap. 15). The Commissioner must verify the identity of the deponent, administer the oath or affirmation, witness the deponent's signature or mark, and affix their official rubber stamp and signature to the jurat — the attestation clause at the foot of the affidavit. An affidavit not properly witnessed by a Commissioner for Oaths or Notary Public is inadmissible in Kenyan court proceedings.

Affidavits in Kenya are used across a wide range of legal proceedings: supporting or opposing interlocutory injunction applications under Section 3A of the Civil Procedure Act and Order 40 of the Civil Procedure Rules; judicial review applications under Order 53 of the Civil Procedure Rules; applications in the Family Division of the High Court for divorce, guardianship, and adoption under the Children Act No. 29 of 2022; applications in the Environment and Land Court for land injunctions and caveat orders under the Land Registration Act No. 3 of 2012; and applications in the Employment and Labour Relations Court for reinstatement orders under the Employment Act No. 11 of 2007.

The Kenya Court Affidavit must be distinguished from a Statutory Declaration — which is a written statement made under a declaration rather than an oath, used for non-court administrative purposes such as change of name, lost document declarations, and declarations before government agencies. Both documents are administered under the Oaths and Statutory Declarations Act (Cap. 15), but an affidavit is specifically intended for use as evidence in court proceedings.

Alterations to an affidavit after it has been sworn are prohibited and render the document unreliable. The deponent must initial any corrections made before swearing, and the Commissioner for Oaths must countersign each correction. Multiple exhibits attached to an affidavit must be identified by exhibit marks (e.g., "Exhibit A", "Exhibit B") and separately stamped by the Commissioner for Oaths.

A Court Affidavit in Kenya is required whenever a party to legal proceedings needs to place sworn written evidence before a court, and several distinct circumstances make the affidavit the appropriate document.

A Court Affidavit is required when a party files an application for an interlocutory injunction in the High Court of Kenya under Order 40 of the Civil Procedure Rules 2010. The applicant must swear an affidavit setting out the facts supporting the three-part American Cyanamid test recognised by Kenyan courts: a serious question to be tried, the balance of convenience favouring the grant of the injunction, and irreparable harm if the injunction is refused.

A Court Affidavit is needed when a party files a judicial review application under Order 53 of the Civil Procedure Rules, seeking certiorari, mandamus, or prohibition against a public body or government official. The supporting affidavit must contain all the primary facts relied upon, as oral evidence is generally not permitted at the leave stage.

A Court Affidavit is required when a party seeks to enforce a foreign judgment in Kenya under the Foreign Judgments (Reciprocal Enforcement) Act (Cap. 43). The applicant must file an affidavit verifying the authenticity of the foreign judgment and the circumstances under which it was obtained.

A Court Affidavit is needed in probate proceedings before the Family Division of the High Court — for example, an affidavit verifying the Will, an affidavit of the next-of-kin for intestate administration, or an affidavit in opposition to a grant of probate under the Law of Succession Act (Cap. 160).

A Court Affidavit is required when a party applies for a caution or caveat against a land title at the Land Registry under Section 71 of the Land Registration Act No. 3 of 2012, where the registrar requires sworn evidence of the claimed interest in the land.

A Court Affidavit is needed in employment disputes before the Employment and Labour Relations Court (ELRC), particularly in urgent applications for reinstatement or injunctions restraining an employer from dismissing an employee pending a full hearing under Section 12 of the Employment and Labour Relations Court Act No. 20 of 2011.

A Court Affidavit in Kenya under the Oaths and Statutory Declarations Act (Cap. 15) and the Civil Procedure Rules 2010 must contain the following essential elements to be admissible in Kenyan court proceedings.

Title and Court Reference: The heading must identify the court in which the proceedings are pending — for example, "IN THE HIGH COURT OF KENYA AT NAIROBI" or "IN THE ENVIRONMENT AND LAND COURT AT MOMBASA" — the case number, and the names of all parties. If the affidavit is filed before proceedings commence, it may be headed with the proposed court and titled as a supporting affidavit.

Deponent's Identity: The full legal name of the deponent, their National Identity Card (NIC) number, their age, occupation, and residential or business address in Kenya. For a corporate deponent, the name and title of the authorised officer swearing the affidavit on the company's behalf must be stated, together with the BRS Registration Number of the company.

Statement of Knowledge: An opening paragraph identifying the source of the deponent's knowledge of the facts stated — personal knowledge, information received from named sources, or belief based on documents. Under Order 19 Rule 3 of the Civil Procedure Rules 2010, an affidavit may contain facts of information and belief, provided the sources and grounds thereof are stated. Failure to distinguish between personal knowledge and belief may lead to portions of the affidavit being struck out by the court.

Body — Statement of Facts: Numbered paragraphs setting out the material facts in logical, chronological order. Each paragraph should address a single, distinct factual point. Legal argument must not appear in an affidavit — it is confined to written submissions. Exhibits must be identified in the text: "Annexed hereto and marked Exhibit 'A' is a true copy of the agreement dated...".

Exhibits: Documents relied upon must be attached as exhibits and each exhibit separately identified by an exhibit mark. The Commissioner for Oaths must stamp each exhibit with their official seal and sign across the exhibit and affidavit at the point where the exhibit is marked. Exhibits form part of the affidavit and cannot be detached without compromising the evidential record.

Jurat — Attestation Clause: The jurat is the clause at the foot of the affidavit confirming that it was sworn before the Commissioner for Oaths. The prescribed form under the Oaths and Statutory Declarations Act (Cap. 15) is: "SWORN at [place] this [day] day of [month] [year] before me" followed by the Commissioner's signature, printed name, official rubber stamp, date of appointment, and address of practice.

Deponent's Signature: The deponent must sign or place their thumbprint at the foot of the affidavit in the presence of the Commissioner for Oaths. If the deponent cannot read English, the affidavit must be translated into a language the deponent understands, and the Commissioner must certify on the jurat that the affidavit was translated and explained to the deponent before swearing.

Amendments and Corrections: Any word struck out or inserted must be initialled by the deponent and the Commissioner for Oaths before swearing. An affidavit with uninitialised alterations is defective and may be rejected by the court registry. Forms-legal.com provides this Court Affidavit template as a practical starting document for use in Kenyan court proceedings — parties should seek advice from an Advocate of the High Court of Kenya for complex matters.