Validating an Affidavit from Abroad: How to Do It Right in Kenya

Need to swear an affidavit for a Kenyan case while you’re out of the country? You can do it online, but the rules are strict.

A recent ruling, Dardanelli & 6 Others v. Tilito & 3 Others [2025] KEELC 392 (KLR), from the Environment and Land Court in Malindi on February 6, 2025, shows what happens when you miss the mark. At Kubwa and Company Advocates, we’re explaining how to validate an affidavit from abroad using Kenya’s electronic laws and how our Narok team can help you succeed in 2025.

The Case: A Lesson in Online Affidavits

In this land dispute, homeowners sued over villa leases in Malindi. The defendants wanted the case sent to arbitration and filed an affidavit from Pasquale Tilito, a director abroad. They claimed he swore it online, but the affidavit said “sworn in Nairobi” on May 23, 2024, when he wasn’t in Kenya.

The court struck it out—not because online swearing is illegal, but because they didn’t prove it was done correctly. Without a valid affidavit, their application was rejected.

Can You Swear an Affidavit Online in Kenya?

Yes, Kenyan law allows it! The Kenya Information and Communications Act accepts electronic signatures, and Section 106B of the Evidence Act lets electronic records (like affidavits) count as evidence—if you follow the right steps.

The Dardanelli case confirms this is possible, but you need solid proof. Here’s how to validate an affidavit from abroad online:

1. Draft the Affidavit: Your lawyer writes your sworn statement, ensuring it’s true (lying under oath is perjury).
2. Set Up Online Swearing: You can’t sign in person in Kenya since you’re abroad. Instead, connect with a commissioner for oaths or a notary public via a secure video call (e.g., Zoom or Microsoft Teams).
3. Commissioner’s Role: The commissioner has key duties to make it legal:
   • Check Your Identity: They verify you’re the signer using your ID (e.g., passport) over the video call.
   • Explain the Content: They read or show you the affidavit and confirm you understand and agree with it, protecting against mistakes or fraud.
   • Witness Your Signature: You sign electronically (e.g., using a digital signature tool like DocuSign) while they watch live. They then add their electronic signature and stamp.
   • Secure the Process: They record the session or log details (date, time, platform) to prove it happened. Under Section 106B, they must issue a certificate explaining:
     • How the affidavit was created (e.g., signed on Zoom).
     • The device used (e.g., laptop or phone).
     • That the process was reliable and tamper-proof.
   • Jurat Accuracy: The commissioner notes where you are (e.g., “Sworn in London via video link”) and where they are (e.g., “Commissioned in Nairobi”), plus the date.
4. Submit to Court: Your lawyer files the affidavit and certificate with the Kenyan court. The certificate proves it meets Section 106B standards, making it valid evidence.

Why Tilito’s Affidavit Failed

Tilito’s team said he swore it online, but:

• The affidavit falsely claimed to be “sworn in Nairobi” when he was abroad.
• They didn’t provide a Section 106B certificate or video proof of the swearing.
• The court couldn’t trust it was him or that he understood it, so it was struck out.

The judge didn’t ban online affidavits, he just said you need clear evidence of the process. Kenya’s laws support digital methods, but sloppy execution won’t cut it. This stance should reassure you that the legal system is adapting to the digital age, but with a strong emphasis on due process.

How to Get It Right

• Tell the Truth: The jurat must match your location (e.g., “Sworn in Dubai via Zoom, commissioned in Nairobi”).
• Prove the Process: Include a certificate with details—platform, security, and who was present. A video clip or screenshot helps, too.
• Engage Experts: A law firm like Kubwa and Company Advocates ensures every step is airtight, from drafting to commissioning.

Kubwa and Company Advocates: Your Digital Legal Partner

At Kubwa and Company Advocates in Narok, we make affidavit validation easy, even from abroad. Whether it’s a land dispute, a succession case, or a business matter, we:

• Draft accurate affidavits for clients worldwide.
• Coordinate secure online swearing with commissioners, meeting Evidence Act and Oaths and Statutory Declarations Act rules.
• Deliver court-ready documents with all required certificates.

Don’t let a technical slip-up ruin your case. Contact Kubwa and Company Advocates today. We’ll keep your affidavit valid—anywhere, anytime!

Talk to us now by Scheduling a Meeting Here or direct chat on WhatsApp Here or by clicking on the live chat in the bottom right corner.

Should you require more information, please do not hesitate to contact [email protected].