When the jurat defects the affidavit

Preliminary

Preliminary objections are often raised seeking the striking of both the application and the suit on basis that the jurat does not conform to section 5 of the Oaths and Statutory Declarations Act, Cap. 15 of the Laws of Kenya.

The grounds relied on in such objection affidavit will likely be read:

(i)That the verifying affidavit and/or supporting affidavit do(es) not state where they were sworn;
(ii)That the Plaint and the application cannot stand on their own without the respective affidavits.

In such instance, the verifying affidavit and/or the supporting affidavit will have missing the place it was sworn. Such omission is invariably a matter of clerical error or oversite. But in law, it is taken lightly.

What is a jurat?

The jurat is the section of an affidavit where it is stated, a matter of law, where the same was sworn. The jurat customarily state i.e. ‘Sworn at [e.g name of town where affidavit was sworn] by the said[name of a deponent]’.

The rationale for this is to ensure that affidavits sworn outside the jurisdiction are restricted from being shown to be sworn in Kenya. Similarly, the requirement ensures that the opposite side can raise issues as to the forging of the signature where it can show that the deponent was not at the place stated at the time of swearing.


Real case scenario

In a recent case, as a result of clerical error, the jurats of both the verifying affidavit and supporting affidavit for a summary judgment application merely stated: "Sword by the said[X] (name withheld). However, the stamp for the commissioner for oath at the attestation clearly indicated his address in both affidavits as P.O Box XXX-00400, Nairobi. the above grounds were raised with minor modifications.

Statutory law on affidavits and jurat

The Law on affidavits is principally to be found in the Oath and Statutory Declarations Act (Cap. 15 Laws of Kenya), Interpretation and General Provisions Act (Cap 2 Laws of Kenya), Order XVIII, Order L, and Order VII (in the case of verifying Affidavit).

In the present case, the preliminary objection based as it is on alleged deficiency of the jurat of both the verifying affidavit and the supporting affidavit. Section 5 of the Oath and Statutory Declarations Act stipulates:

“Every Commissioner for oaths before whom an oath or affidavit is taken or made under this Act shall state truly I the jurat or attestation (emphasis supplied) at what place and what dare the oath or affidavit is taken or made.”

The obvious interpretation of this section is that the date and place where the affidavit is made can be stated either in the jurat or in the attestation. How it is to be stated in the attestation is not clear. For instance, the issue of whether or not a stamp affixed in the attestation stating the address of the commissioner will suffice.

The argument against the place in the stamp sufficing has invariably been that even when a commissioner stamps an affidavit from another town, the address always remains that of the town where s/he is based. Thus, it is said, that the stamp's address is not meant to suffice as an indication of the place where the affidavit was made but for purposes of correspondence.

The counter argument is that where the affidavit is made from another town than that indicated in the stamp, the commissioner will be more likely than not to state that fact. In any event, where there is no prejudice on the other party and the omission of the place is not meant to mislead, the place indicated in the stamp should suffice.

The gist of the objection

The Objection by Defendant’s counsel in the case scenario was that with the stated lack of wordings, the affidavits were defective and thus the Plaint and respective application are also defective and should be struck out as they cannot stand on their own.

Such position has been ratified in at least two cases of the High Court that are known to me. In Narok Transit Hotel Ltd and Another-v-Barclays Bank Kenya Ltd (H.C.C.S. (Milimani) No. 12 of 2001 Onyango Otieno J. (as he then was) struck out an application based on the affidavit which had similar jurat and attestation. The judge observed that the address on the stamp “cannot be on its own without anything further be taken as the place where the affidavit was sworn.”

Additionally, in Eastern and Southern Africa Development Bank Ltd-v-African Green Fields Ltd. And 2 Others (H.C.C.S. Milimani) 1189/00 the late Hewett J. also struck out a suit on basis of defect in the jurat.

Recent cases dissaproved above cases

However, recent judgments touching on all fronts on facts as above stated have doubted and disapproved the above judgments of the court. In their place, the High Court has taken to finding that the Affidavits are not defective if they are as appeared above.

In Ocean Freight Transport Co. Ltd-v-Purity Gathoni Wamae and Another (HCCS No.3958 of 91 (unreported) Rawal, J relying on Section 72 of the interpretation and General Provisions Act (Cap. 2 Laws of Kenya) found and I quote:

“In my humble opinion, the present affidavit falls squarely within the above provision of the Act of parliament. I am also fortified by the fact that the stamp affixed by the commissioner of Oaths does state the place of his signature. I would have presumed that if he or she was not affixing the stamp on the place where it was signed, the necessary statement or amendment to the stamp would have been made. In any event, I can safely surmise that the stamp affixed does satisfactorily state the place where the affidavit was sworn and that the omission to mention the place in jurat is not a deviation in substance but is in its form and the same is not prejudicial to the opposite side and is not calculated to mislead.”

In the reaching the above holding, the court relied on the case from Court of Appeal namely Unga Ltd-v-Amos Kinuthia and Gabriel Mwaura (Civil Appeal No. 175 of 1997) wherein it was held that the requirements of section 5 of the Oaths and Statutory Declaration Act are in respect of the form of the document as opposed to substance which is covered under Section 72 of the Interpretation and General Provisions Act (supra).

Law on defectiveness as to form

Section 72 of Cap. 2 of the Laws of Kenya states:

“Save as is otherwise expressly provided, whenever a form is prescribed by a written law, an instrument or document which purports to be in that form shall not be void by reason of a deviation therefrom which does not affect the substance of the instrument or document, or which is not calculated to mislead.”

The import of the above section is that if the defect is in form, it is not a fundamental defect or irregularity and thus can be curable and/or received under order XVIII Rule 7 of the Civil Procedure and section 72 of the Interpretation and General Provisions Act.

In the Ocean Freight case (supra) and the latter and recent case of Dilshad Hassanali Manji-v-Hassanali Vasanji Manji Nairobi Law Courts HCCC No. 8 of 2005 Rawal, J found that the failure to state the place where the affidavit was made while the attestation states the same by way of stamp address is a defect as to form. The court added that that is especially the case where the ommission does not prejudice the opposite side or is not found to be calculated to mislead.

Order XVIII Rule 7

In so holding, she dismissed the argument for striking out the affidavits in both cases. The case for striking had been that Order XVIII Rule 7 of Civil Procedure Rules could not be relied by the court to receive the affidavit in the form thereof along with the defects as doing so would be contravening a specific statutory section (section 5 of the Oaths and Statutory declarations Act). She found that even if the Order was to be found to be precluded from the application, section 72 of Cap. 2 of the Laws of Kenya would still be sufficient save the affidavits.

Order XVIII Rule 7 authorizes courts to receive affidavits despite irregularity in form thereof. Being a subsidiary legislation by the Rules Committee, it admittedly cannot be held as authorizing that which is objected by a section of a statutory provision, namely, section 5 of the Oaths and Statutory Declarations Act.

Unga Ltd holding binding on High Court

However, the contention against striking out the affidavits here is not based on Order XVIII Rule 7 only. The argument is that given the allowance in section 5 of Cap. 15 of Laws of Kenya that the place where an affidavit is made be stated in either the jurat or attestation, where the place is stated in the attestation vide the stamp of the commissioner for oaths, the deficiency in stating the place is not of substance but of form.

The above argument finds solace in the holding of the Court of Appeal to in Unga Ltd. Case (supra) which case is binding on the High Court that the requirements under section 5 of Cap. 15 of Laws of Kenya are in respect of form.

Deficiency in the jurat of form

Thus the deficiency objected in the case scenario is clearly a matter of form. That being so, section 72 of Cap. 2 becomes applicable to the extent, as was held by Rawal J in Ocean Freight case (supra) and affirmed in Dilshad case (also supra), the place stated in the stamp suffices.

Conclusion

In a nutshell, there is no defect as would merit striking out of the affidavit. The party relying on the affidavit will only need to cite Section 72 of Interpretation and General Provisions Act The outcome would be arrived if one was to go by the Order XVIII Rule 7 of civil Procedure Rules. That is, the court will find that it should receive the affidavit despite the objected and/or alleged irregularity.

There is no reason why the court would not arrive to the same decision where the stamp contains a date but the jurat lacks one. But as a caution to litigants, it is better save than sorry. I advice careful drafting and proof reading to save clients and court time dealing with such objections as this-which no doubt can be avoided.