OATHS AND STATUTORY DECLARATIONS ACT - Kenya Law Reports

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LAWS OF KENYAOATHS AND STATUTORY DECLARATIONS ACTCHAPTER 15Revised Edition 2012 [2003]Published by the National Council for Law Reportingwith the Authority of the Attorney-Generalwww.kenyalaw.org

[Rev. 2012]CAP. 15Oaths and Statutory DeclarationsCHAPTER 15OATHS AND STATUTORY DECLARATIONS ACTARRANGEMENT OF SECTIONSPART I – PRELIMINARYSection1.Short title.2.3.4.5.6.7.Appointment of commissioners for oaths.Commissioner for oaths to sign roll.Powers of commissioner for oaths.Particulars to be stated in jurat or attestation clause.Rules of court under Part.Penalty for unlawfully acting as commissioner for oaths.PART II – COMMISSIONERS FOR OATHSPART III – STATUTORY DECLARATIONS8.9.10.11.Power to take declarations.Fees payable on declarations.Mode of referring to declaration.Penalty for false declaration.PART IV – POWERS OF MAGISTRATES AND CERTAIN COURT OFFICERS12.Powers of magistrates and certain court officers to administer oaths.13.Oaths by Africans.PART V – OATHS BY AFRICANSPART VI – OATHS AND AFFIRMATIONS14.15.16.17.18.19.20.21.Authority to administer oaths and affirmations.When affirmation may be made instead of oath.Form of affirmation.Persons by whom oaths and affirmations to be made.Forms of oath.Evidence of children of tender years.Power of court to tender certain oaths.Validity of oath not affected by absence of religious belief.SCHEDULE3[Issue 1]

[Rev. 2012]CAP. 15Oaths and Statutory DeclarationsCHAPTER 15OATHS AND STATUTORY DECLARATIONS ACT[Date of commencement: 22nd March 1919 — Parts I and II,30th November, 1926 — Part III, 10th July, 1931 — Part IV27th March, 1906 — Part V, 18th October, 1954 — Part VI.]An Act of Parliament to provide for the appointment of commissioners foroaths, and to make provision in regard to the administering of oaths andthe taking of statutory declarations[Cap. 20 of 1948. Act No. 42 of 1954, Act No. 20 of 1956, Act No. 27 of 1961,Act No. 46 of 1963, Act No. 10 of 1983.]PART I – PRELIMINARY1. Short titleThis Act may be cited as the Oaths and Statutory Declarations Act.PART II – COMMISSIONERS FOR OATHS2. Appointment of commissioners for oaths(1) The Chief Justice may, by commission signed by him, appoint personsbeing practising advocates to be commissioners for oaths, and may revoke anysuch appointment.(2) Each commission by which any commissioner for oaths is appointed shallbear a stamp of the value of thirty shillings, to be paid for by the commissioner foroaths therein named; but no other charge or fee shall be made or be payable inrespect of the appointment or in respect of anything required to be done toperfect it.(3) After the commission has been signed and stamped the appointment ofthe person therein named as a commissioner for oaths shall be forthwithpublished in the Gazette.3. Commissioner for oaths to sign rollEvery advocate appointed a commissioner for oaths shall, on appointment,sign a roll, which shall be kept by the Registrar of the High Court.4. Powers of commissioner for oaths(1) A commissioner for oaths may, by virtue of his commission, in any part ofKenya, administer any oath or take any affidavit for the purpose of any court ormatter in Kenya, including matters ecclesiastical and matters relating to theregistration of any instrument, whether under an Act or otherwise, and take anybail or recogniZance in or for the purpose of any civil proceeding in the HighCourt or any subordinate court:Provided that a commissioner for oaths shall not exercise any of thepowers given by this section in any proceeding or matter in which he is theadvocate for any of the parties to the proceeding or concerned in the matter, orclerk to any such advocate, or in which he is interested.5[Issue 1]

CAP. 15[Rev. 2012]Oaths and Statutory Declarations(2) A commissioner for oaths shall, in the exercise of any of the powersmentioned in subsection (1), be entitled to charge and be paid such fees as maybe authorized by any rules of court for the time being.5. Particulars to be stated in jurat or attestation clauseEvery commissioner for oaths before whom any oath or affidavit is taken ormade under this Act shall state truly in the jurat or attestation at what place andon what date the oath or affidavit is taken or made.6. Rules of court under PartThe Chief Justice may make rules of court for the better carrying into effect ofthis Part and for fixing the amount of the fees payable to commissioners foroaths.7. Penalty for unlawfully acting as commissioner for oathsAny person who holds himself out as a commissioner for oaths or receivesany fee or reward as a commissioner for oaths shall, unless he has beenappointed as such under this Act, be guilty of an offence and, in addition to anyother penalty or punishment to which he may be liable by any law in force, beliable to a fine not exceeding six hundred shillings, and for a second offence, inaddition to any other penalty or punishment, shall be liable to a fine of twothousand shillings or imprisonment for a term not exceeding six months or toboth such fine and imprisonment.PART III – STATUTORY DECLARATIONS8. Power to take declarationsA magistrate or commissioner for oaths may take the declaration of anyperson voluntarily making and subscribing it before him in the form in theSchedule.[Act No. 10 of 1983, Sch.]9. Fees payable on declarationsWhenever any declaration is made and subscribed by any person under thisAct, the same fees or fee shall be payable as would have been payable on thetaking or making of any legal oath, solemn affirmation or affidavit.10. Mode of referring to declarationA declaration made under this Act may be referred to in any Act or other legaldocument as a statutory declaration.11. Penalty for false declarationIf any person knowingly and wilfully makes any statement which is false in amaterial particular in a statutory declaration he shall be guilty of an offence andliable to imprisonment for a term not exceeding two years or to a fine notexceeding two thousand shillings, or to both such imprisonment and fine.[Issue 1]6

[Rev. 2012]CAP. 15Oaths and Statutory DeclarationsPART IV – POWERS OF MAGISTRATES AND CERTAIN COURTOFFICERS12. Powers of magistrates and certain court officers to administer oathsA magistrate, the Registrar of the High Court, a deputy registrar and a districtregistrar may administer any oath or affirmation or take any affidavit or statutorydeclaration (voluntarily made and subscribed in accordance with the provisions ofPart III) which might lawfully be administered or taken by a commissioner foroaths appointed under Part II.[Act No. 20 of 1956, s. 2.]PART V – OATHS BY AFRICANS13. Oaths by AfricansAny African, not being a Christian or a Mohammedan, required by law to takean oath shall take the oath in the form common among and held binding by themembers of the tribe to which such African belongs, and when such Africanbelongs to a tribe the members of which hold no form of oath binding upon themhe shall be required to make solemn affirmation in the form now in use.PART VI – OATHS AND AFFIRMATIONS14. Authority to administer oaths and affirmationsAll courts and persons having by law or consent of the parties authority toreceive evidence are authorized to administer, by themselves or by an officerempowered by them in that behalf, oaths and affirmations in discharge of theduties or in exercise of the powers imposed or conferred upon them by law.[Act No. 42 of 1954, s. 2.]15. When affirmation may be made instead of oathEvery person upon objecting to being sworn, and stating, as the ground ofsuch objection, either that he has no religious belief or that the taking of an oathis contrary to his religious belief, shall be permitted to make his solemnaffirmation instead of taking an oath in all places and for all purposes where anoath is required by law, which affirmation shall be of the same effect as if he hadtaken the oath.[Act No. 42 of 1954, s. 2.]16. Form of affirmationEvery affirmation shall be as follows: “I, A.B., do solemnly, sincerely and trulydeclare and affirm,” and then proceed with the words of the oath prescribed bylaw, omitting any words of imprecation or calling to witness.[Act No. 42 of 1954, s. 2.]17. Persons by whom oaths and affirmations to be madeSubject to the provisions of section 19, oaths or affirmations shall be madeby—(a)all persons who may lawfully be examined, or give, or be required togive, evidence by or before any court or person having by law orconsent of parties authority to examine such persons or to receiveevidence;7[Issue 1]

CAP. 15[Rev. 2012]Oaths and Statutory Declarations(b)interpreters of questions put to, and evidence given by, witnesses.[Act No. 42 of 1954, s. 2.]18. Forms of oathAll oaths made under section 17 of this Act or section 151 of the CriminalProcedure Code (Cap. 75) shall be administered according to such forms as theChief Justice may by rules of court prescribe, and until any such forms are soprescribed such oaths shall be administered according to the forms now in use.[Act No. 42 of 1954, s. 2, Act No. 27 of 1961, Sch.]19. Evidence of children of tender years(1) Where, in any proceedings before any court or person having by law orconsent of parties authority to receive evidence, any child of tender years calledas a witness does not, in the opinion of the court or such person, understand thenature of an oath, his evidence may be received, though not given upon oath, if,in the opinion of the court or such person, he is possessed of sufficientintelligence to justify the reception of the evidence, and understands the duty ofspeaking the truth; and his evidence in any proceedings against any person forany offence, though not given on oath, but otherwise taken and reduced intowriting in accordance with section 233 of the Criminal Procedure Code (Cap. 75),shall be deemed to be a deposition within the meaning of that section.[Act No. 42 of 1954, s. 2, Act No. 46 of 1963, Second Sch.](2) If any child whose evidence is received under subsection (1) wilfully givesfalse evidence in such circumstances that he would, if the evidence had beengiven on oath, have been guilty of perjury, he shall be guilty of an offence andliable to be dealt with as if he had been guilty of an offence punishable in thecase of an adult with imprisonment.20. Power of court to tender certain oathsIf any party to, or witness in, any judicial proceedings offers to give evidenceon oath or affirmation in any form common amongst, or held binding by, personsof the race or persuasion to which he belongs and not repugnant to justice ordecency, and not purporting to affect any third person, the court may, if it thinksfit, notwithstanding anything hereinbefore contained, tender such oath oraffirmation to him.[Act No. 42 of 1954, s. 2.]21. Validity of oath not affected by absence of religious beliefWhere an oath has been duly administered and taken, the fact that the personto whom it was administered had, at the time of taking the oath, no religiousbelief shall not for any purpose affect the validity of the oath.[Act No. 42 of 1954, s. 2.][Issue 1]8

[Rev. 2012]CAP. 15Oaths and Statutory DeclarationsSCHEDULE[Section 8.]I, A.B., do solemnly and sincerely declare as follows—. [here state the matters declared]I make this declaration conscientiously believing the same to be true andaccording to the Oaths and Statutory Declarations Act.9[Issue 1]

[Rev. 2012]CAP. 15Oaths and Statutory Declarations[Subsidiary]CHAPTER 15OATHS AND STATUTORY DECLARATIONS ACTSUBSIDIARY LEGISLATIONList of Subsidiary Legislation1.Oaths and Statutory Declarations Rules .11Page13[Issue 1]

[Rev. 2012]CAP. 15Oaths and Statutory Declarations[Subsidiary]OATHS AND STATUTORY DECLARATIONS RULES[Cap. 20 of 1948, Sub. Leg. L.N. 374/1956, L.N. 320/1957, L.N. 37/1974, L.N. 113/1980, L.N.117/1983.]RULES OF COURT UNDER SECTION 61. These Rules may be cited as the Oaths and Statutory Declarations Rules.2. An advocate who has practised in Kenya for not less than three years may apply tothe Chief Justice to be appointed a commissioner for oaths.3. All applications under rule 2 shall be in writing, shall state the period during which theapplicant has practised in Kenya and the date upon which his name was entered upon theRoll of Advocates, and shall be accompanied by a certificate signed by two otherpractising advocates and two householders to the effect that the applicant is a fit andproper person to be so appointed.4. Applications shall be lodged with the Registrar of the High Court, who shall notify theapplicant of the decision of the Chief Justice thereon.5. On an advocate paying the prescribed fees and signing the Roll of Commissioners, acommission shall be issued to him in the form in the First Schedule.6. A commissioner for oaths shall be entitled to charge fees in accordance with thoseprescribed in the Second Schedule in respect of the matters therein mentioned.7. A commissioner for oaths before administering an oath must satisfy himself that theperson named as the deponent and the person before him are the same, and that suchperson is outwardly in a fit state to understand what he is doing.8. The power to revoke a commission conferred by section 2 of the Act shall not beexercised until the commissioner whose conduct is in question has been given anopportunity of being heard against any such order of revocation.9. All exhibits to affidavits shall be securely sealed thereto under the seal of thecommissioner, and shall be marked with serial letters of identification.10. The forms of jurat and of identification of exhibits shall be those set out in the ThirdSchedule.FIRST SCHEDULE[Rule 5.]OATHS AND STATUTORY DECLARATIONS ACTA COMMISSIONTO ALL TO WHOM THESE PRESENTS MAY COME GREETINGBe it known that on the . day of . , 20 . ,X.Y.Z., an Advocate of the High Court, has been appointed to be a Commissioner for Oaths underthe above-mentioned Act for so long as he continues to practise as such Advocate and thisCommission is not revoked.Given under my hand and the Seal of the Court this . day of .13[Issue 1]

CAP. 15[Rev. 2012]Oaths and Statutory Declarations[Subsidiary]. , 20 .[Issue 1]14

[Rev. 2012]CAP. 15Oaths and Statutory Declarations[Subsidiary]FIRST SCHEDULE—continued.Chief JusticeSt.L.S.SECOND SCHEDULE[Rule 6.]FEES1. For taking an affidavit or declaration .2. For every exhibit thereto .3. For attending to administer an oath or affirmation or to take adeclaration elsewhere than at the office of the commissioner, inaddition to the ordinary fee thereon, for every quarter-hour or partthereof .4. For attending to administer an oath or to take a declaration outsideof the town of the commissioner’s practice .KSh.176cts.50508500Fee at the same rateand allowance as anadvocate may chargefor a journey fromhome.[L.N. 117/1983, s. 2.]THIRD SCHEDULE[Rule 10.]FORM OF JURATSwornbefore me .Declaredthis . day of . , 20 ., at .Commissioner for OathsFORM OF IDENTIFICATION OF EXHIBITThis is the exhibit marked “. ” referred to in the annexed affidavit of.15[Issue 1]

CAP. 15[Rev. 2012]Oaths and Statutory Declarations[Subsidiary]THIRD SCHEDULE—continuedSwornbefore me .Declaredthis . day of . , 20 ., at .Commissioner for Oaths[Issue 1]16

[Rev. 2012] CAP. 15 Oaths and Statutory Declarations 5 [Issue 1] CHAPTER 15 OATHS AND STATUTORY DECLARATIONS ACT [Date of commencement: 22nd March 1919 — Parts I and II, 30th November, 1926 — Part III, 10th July, 1931 — Part IV 27th March, 1906 — Part V, 18th October, 1954 — Part VI.] An Act of Parliament to provide for the appointment of commissioners for

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