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AFFIDAVITS


The general rule is that the manner of proving facts in a court of law is by oral evidence; however, sometimes the court may order that evidence be presented to the court by way of an Affidavit.

Affidavits may also be used in certain applications where the statute provides for it. 

RULES RELATING TO DRAWING UP OF AFFIDAVITS

Order 19 Rule 2 provides that in instances where evidence has been given to the court by way of an affidavit, the court may either upon the application by one of the parties or on its own motion require that the Deponent of an Affidavit appears in court for cross examination.  Even where you are allowed by the statutes to give the evidence by way of affidavit the court reserves the right to call the deponent of the affidavit.Order 19 rule 18  specifically outlaws technical or formal objections.

CONTENTS OF AN AFFIDAVIT

1.            The general rule is that the affidavit must contain facts within the deponent’s personal knowledge; there is an exception to this law in interlocutory proceedings you can have facts in the affidavit that are based on information and belief.  If it is not interlocutory proceedings you have to seek the leave of the court if you want to include facts based on information and belief and if you include the information and belief you must quote source and information based in belief you must include the ground for belief.

 Life Insurance Corporation of India V. Panesar in this case the plaintiff had sued the defendant for monies due under an insurance policy.  He was asking for the money to be paid in Kenyan currency.  After the Defendant had entered appearance, the plaintiff applied for summary judgment.  The defendant opposed application for summary judgment claiming that it had a good defence and they filed an Affidavit supporting their grounds of opposition.    This Affidavit stated that ‘the policies of insurance specifically provide for payment in Indian Rupees.’  What happened that was that that statement was challenged.  That was a fact based on information and yet the source had not been stated.  The statement was not defective because the source of information was the insurance policy itself.  The deponent had received the source.  The court said that it would have been prudent to attach the Policy Document.

Riddlesburger Case


CaspAir v. Harrycandy


In this case the plaintiff an air pilot sued the defendant for recovery of money due to him.  Thereafter the Air pilot left the country and was unable to come to the court at the time of the hearing of the case.  His lawyers then applied for his evidence to be taken by way of a commission.  The Affidavit supporting that application was sworn by the advocate and that affidavit contained among other things the fact that the pilot or the plaintiff was prevented by his duties at work an expense among other factors from being able to come to court to give evidence.  That affidavit of the advocate was challenged for being defective.  It was challenged on the grounds that the advocate did not state what he knew for a fact, what he was informed or what he believed.  The Court of Appeal held that affidavit of the advocate was defective.

2.            If you are swearing an affidavit on behalf of several applicants, you must say so in the affidavit.  Mwangi King’ori v. City Council of Nairobi.  If you don’t indicate that your Affidavit will be found to be fatally defective.
3.            Affidavit should be in separate paragraphs so it comes out more clearly.
4.            It should be dated and signed and indicate the place i.e. signed in Nairobi on this day of...

Mayers v. Akira Ranch Ltd


John King’ori v. City Council Civil Case No.

Article by Pheroze Nowrojee – The Defective Affidavit
Advocate Magazine of January 1984 page 9.

Masefield Trading Co. Ltd v. Kibui Civil Case No. 1794 of 2000

Decision of issue of Affidavit by Mbaluto J.

Tom Okello Obondo v. NSSF H.C.C. No. 1759 of 1999

 Decision of Justice Ringera

Eastern & Southern Development Bank V. African Greenfields Ltd civil case no. 1189 of 2000
Decision by Hewitt J.

Masefield Trading Co. Ltd v. Kibui civil case No. 1796 of 2000

Justice Hewitt Decision

 
 
 

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