KENYA SCHOOL OF LAW

ADVOCATES TRAINING PROGRAMME

LEGAL WRITING AND DRAFTING

PRESENTATION ON STATUTORY DECLARATION,

2020

BY

FIRM 27, CLASS C.

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FIRM 27 MEMBERS:
NO NAMES REG
. NO.
1. ORANG’O STEPHEN AROSI 20200911
2. MOSE BRIGID GESARE 20200243
3. OMOGI ELEKIAH OCHOLA 20200169

4. MUNGAI BEATRICE WANJIKU 20200226

5. WACHIRA STEPHANIE NDUKU 20200849
6. AUDREY AMONDI ARAO 20200978
7. MUNEENI CAROLYNE 20201180
MWIKALI
8. WAKESHO ELIZABETH 20201672
9. OTIENO ESSYTREZA 20200047
ADHIAMBO
10. EGO EVANS KIPKEMBOI 20201867

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Table of Contents

INTRODUCTION......................................................................................................................... 1

1.1. DEFINITION OF STATUTORY DECLARATION........................................................1

1.2. EXAMPLES OF HOW STATUTORY DECLARATIONS ARE USED.......................1

1.3. LEGAL EFFECT OF A VALID STATUTORY DECLARACTION.............................2

1.4. LAWS THAT GOVERN THE TAKING OF STATUTORY DECLARATION...........2

I. LAND REGISTRATION ACT.........................................................................................................3

II. THE TRADE MARKS RULES;......................................................................................................3

III. THE ELECTIONS PARTY PRIMARIES AND PARTY (LISTS) REGULATIONS, 2017........................3

1.5. PENALTY FOR MAKING FALSE STATEMENT IN STATUTORY

DECLARATION...........................................................................................................................4

1.6. SAMPLE STATUTORY DECLARATION......................................................................9

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INTRODUCTION

1.1. DEFINITION OF STATUTORY DECLARATION

In the Black’s Law Dictionary, statutory declaration means assertion of knowledge of a

circumstance, fact or event that is made in a recognized way before a Commissioner of Oaths,
Justice of the Peace or a Notary Public 1. In section 3 of the Interpretation and General
Provisions Act statutory declaration within Kenya has been defined as a declaration made under
the Oaths and Statutory Declaration Act, Cap.15. A statutory declaration within Commonwealth
or elsewhere than in Kenya has been defined as a declaration made before a justice of the peace,
notary public, commissioner for oaths or other person having authority therein under any law for
the time being in force to take or receive a declaration. A statutory declaration in any other place,
means a declaration made before a Kenya consular officer or pro-consul, or a British consular
officer or before any person having authority under any Act or imperial enactment for the time
being in force to take or receive a declaration.

In the Black’s Law Dictionary a jurat has been defined as a clause written at the foot of an
affidavit, stating when, where and before whom such affidavit was sworn 2. It is also applicable to
statutory declaration.

1.2. EXAMPLES OF HOW STATUTORY DECLARATIONS ARE USED

The following are some examples of how statutory declarations are used:

i. By people who wish to change their name as a method of legally adopting their new
name so they can use it on documents such as passports and driving licenses.
ii. Declaring of identity and nationality and / or citizenship when written evidence are
unavailable.
iii. Nationality or marital status when documentary evidence is unavailable;
iv. By financial institutions to transfer money to people legally entitled to deal with the
estate of a person who has died, such as executors of a will;

1
The Legal Dictionary; Black’s Law Dictionary (2nd Edition).
2
Ibid; See U.S v. McDermott. 140 U.S. 151,11 Sup. Ct. 740,35 L. Ed. 391 and Lutz v. Kinney,23 Nev. 279,46 Pac.
257.

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 v. By company directors declaring solvency when going into voluntary liquidation;
vi. Affirming the provenance and nature of goods for export or import;
vii. Company returns e.g. declaration of dividends.
viii. Declaration statements of originality of an item as part of a patent application 3.Relevant
case LA Group (PTY) Ltd v Wardrobe Collections [2019] eKLR.

1.3. LEGAL EFFECT OF A VALID STATUTORY DECLARACTION

Section 8 of the Oaths and Statutory Declarations Act Cap. 15 provides that a magistrate or
commissioner for oaths may take the declaration of any person voluntarily making and
subscribing it before him in the form in the schedule. The relevant case here is Civil Application
No.26 of 2018.Gideon Sitelu Konchellah v. Julius Lekakeny Ole Sunkuli & 2 others; Ruling in
the Supreme Court of Kenya at Nairobi (2018) eKLR. A validly executed and attested
declaration allows the declarant to enjoy certain rights and advantages as well as create legal
obligations. For example, a statutory declaration to effect change of name would allow the
declarant to use their new in their new engagement on the strengths of that declaration.

1.4. LAWS THAT GOVERN THE TAKING OF STATUTORY DECLARATION

Administering the taking of statutory declaration is governed by;

a) Oaths and Statutory Declaration Act Cap.15

b) Oaths and Statutory Declaration Rules
c) Interpretation and General Provisions Act Cap.2
d) Advocates Act Cap.16Law Society of Kenya Code of Standards of Professional Practice
and Ethical Conduct (SOPPEC)
e) Any other written rules, regulations and laws.

3
See statutory declaration by Boys & Maughan Solicitors,2007.

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The following laws also provide for statutory regulations:

i. Land Registration Act

Section 33 of the provides:

(1) Where a certificate of title or certificate of lease is lost or destroyed, the proprietor may
apply to the Registrar for the issue of a replacement certificate of title or certificate of
lease, and shall produce evidence to satisfy the Registrar of the loss or destruction of the
previous certificate of title or certificate of lease.
(2) The Registrar shall require a statutory declaration to be made by all the registered
proprietors, and in the case of a company, the director, where property has been charged,
the chargee that the certificate of title or a certificate of title or a certificate of lease has
been lost or destroyed.
(3) If the Registrar is satisfied with the evidence proving the destruction or loss of the
certificate of title or certificate of lease, and after the publication of such notice in the
Gazette and in any two local newspapers of national wide circulation, the Registrar may
issue a replacement certificate of lease upon the expiry of sixty days from the date of
publication in the Gazette or circulation of such newspapers;

ii. The Trade Marks Rules;

Rule 112 provides persons before whom declaration is to be taken, if in the Commonwealth
before any court, judge or justice of peace, or any officer authorized by law to administer an
Oath for the purpose of the purpose of a legal proceeding. If outside the Commonwealth before a
Kenya Consul or Vice-Consul, or other person exercising the functions of a Kenya Consul, or
other person exercising the functions of a Kenya Consul, or a notary public a judge or magistrate.

iii. The Elections Party Primaries and Party (Lists) Regulations, 2017

Regulation 18 (1) provides that every political party shall at the time of submission of nominees
to the Commission, file a statutory declaration signed by the person authorized to certify that
candidates to the effect that the political party has compiled with the nomination rules and
procedures of the party in the conduct of the party primary. The statutory declaration under sub-
regulation (1) shall be in Form 5 set out in the schedule. The relevant case here is Rashad

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Hamid Ahmed Amana v. Independent Electoral & Boundaries Commission & 2 Others
[2013] eKLR. Election Petition 6 of 20134.(court of Kenya at Malindi )

1.5. PENALTY FOR MAKING FALSE STATEMENT IN STATUTORY

DECLARATION

A commissioner for oaths is required before administering an oath, to satisfy himself that the
person named as the deponent and the person before him are the same, and that such persons is
outwardly in fit state to understand what he is doing. 5 Section 7 of Oaths and Statutory
Declaration Act provides that if any person knowingly and willfully makes any statement which
is false in a material particular in a statutory declaration he shall be guilty of an offence and
liable to imprisonment for a term not exceeding two years or to a fine not exceeding two
thousand shillings, or to both such imprisonment and fine.

Rule 8 of Oaths and Statutory Declaration Rules provides that the power to revoke a
commission conferred by section 2 of the Act shall not be exercised until the commissioner
whose conduct is in question has been given an opportunity being heard against any such order
of revocation.

CASE LAW ON STATUTORY DECLARATIONs

Peter Njoroge Ng’ang’a v Kenya Reinsurance Corporation Limited (Statutory manager for
United Insurance Company) & another [2018] eKLR6.

This was a land dispute case and the plaintiff moved to court through a plaint dated 9 th July,2012
and filed on 9th July,2012 the prayers for judgement. Service was done and one joint Defence
including a counter claim dated the 6th June were they admitted advertising land parcel number
Kajiado/Kaputiei-North/4243.Reply to defence was done and subsequently the witness
statements were filed. The case was heard.

4
In Rashad Hamid Ahmed Amana v. Independent Electoral & Boundaries Commission & 2 Others [2013] eKLR.
Election Petition 6 of 2013.
5
Rule 7 of the Oaths and Statutory Declaration Rules
6
Environment and Land case 204 of 2017, Peter Njoroge Ng’ang’a v. Kenya Reinsurance Corporation Limited
(Statutory manager for United Insurance Company) & another [2018] eKLR.

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The case was before Judge Christine Ochieng; After considering what was in the Presentation
Book that contains all the transactions relating to land which only had records of the Transfer to
the 1st defendant and the Plaintiff respectively but not for reissuance of tittle to PW1.

The court reiterated section 33 of the Land Registration Act which provides that;

(4) Where a certificate of title or certificate of lease is lost or destroyed, the proprietor may
apply to the Registrar for the issue of a replacement certificate of title or certificate of
lease, and shall produce evidence to satisfy the Registrar of the loss or destruction of the
previous certificate of title or certificate of lease.
(5) The Registrar shall require a statutory declaration to be made by all the registered
proprietors, and in the case of a company, the director, where property has been charged,
the chasee that the certificate of title or a certificate of title or a certificate of lease has
been lost or destroyed.
(6) If the Registrar is satisfied with the evidence proving the destruction or loss of the
certificate of title or certificate of lease, and after the publication of such notice in the
Gazette and in any two local newspapers of national wide circulation, the Registrar may
issue a replacement certificate of lease upon the expiry of sixty days from the date of
publication in the Gazette or circulation of such newspapers;

The court noted that the provisions were not adhered to. The court further stated that the
evidence and the Land Registrar did not demonstrate adherence. Irregularities were seen
specifically where a title was reissuance of the title deed to PW1 was not proper since no
evidence to prove was presented. Lastly, the court emphasized that you must have a good title to
pass land and the case was dismissed, United Insurance Company Limited was declared the legal
owner of Land Parcel Title No. Kajiado/Kaputiei North/4243.

In Re: George Musau Matheka (2002) eKLR; Succ Cause 470 of 907

In this case, the issue of identity of Eric Muthui Matheka arose in the application of grant of
letters of Administration intestate to the estate of the late George Musau Matheka. The court
records show he lodged an objection for being left out by the other siblings. Eric Muthui
Matheka (a major) through affidavit claimed he was a son of the deceased. This claim was

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In Re: George Musau Matheka (2002) eKLR; Succ Cause 470 of 90.

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disputed by the applicants for the grant who were sons disputed. Eric disclosed in the affidavit
that his natural parents were George Musau Matheka and Anne Kimwele. He complained that
the petitioners had left out a number of assets of the deceased, and he gave a list of the items left
out. Attached to Eric’s affidavit were various vital documents as the affidavit shows; “DEED
POLL BY PARENT ON CHANGE OF NAME BY INFANT” The Deed Poll was executed by
Eric’s mother and page 2 it read, “This is the Deed marked A referred to in the declaration of
George Matheka and produced as shown to him on making the said Declaration before me this
13th of November 1979”

It was signed by a Commissioner of Oath. The Statutory Declaration of identity was sworn by
the deceased. Also attached was an affidavit sworn by the late George Musau Matheka
describing Eric as the “son”. Eric had obtained admission to JABALPUR college in India to
pursue a course in Bachelor of Commerce. This was an affidavit of support for Eric by the
deceased George Matheka to the Ministry of Education to confirm that he would pay Eric’s fees
and other expenses.

The court found that evidence speaks for itself. There is further evidence by way of Statutory
Declaration by the deceased dated 13th November, 1979.the deceased confirmed that it was
Eric’s mother Deed Poll changing his names from Eric Muthui Matheka. By the Statutory
Declaration the deceased now confirmed his name being given to Eric, his son. The court took
judicial notice that a man and a woman do not have to be married in order to have a child, sexual
intercourse can make one pregnant and a child be borne.

In Rashad Hamid Ahmed Amana v. Independent Electoral & Boundaries Commission & 2
Others [2013] eKLR. Election Petition 6 of 20138.(court of Kenya at Malindi )

The petitioner was sponsored by Democratic Party (DP) political party while the 3 rd respondent
was sponsored by Kenya National Congress (KNC) political party. After conclusion of the
elections, the 2nd Respondent, Stephen Kitsao Karani, the Returning Officer of the constituency
declared the 3rd Respondent (Julius Ndegwa Kariuki) to have been duly elected as the Member of
Assembly of the constituency. The petitioner challenged the declaration by 3rd Respondent as a

8
In Rashad Hamid Ahmed Amana v. Independent Electoral & Boundaries Commission & 2 Others [2013] eKLR.
Election Petition 6 of 2013.

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duly elected member of the National Assembly seat of the constituency in the petition lodged on
27th March 2013.

The dispute arose on Regulation 22 of The Elections (General) Regulations,2012 (the Election
Regulations) requires a political party upon nominating a candidate to issue such candidate with
a certificate. Regulation 41 of the Election Regulations requires signing of a statutory
declaration in terms of Form 19 of the Election Regulations where the declarant names must
be written in the order in which he or she wishes them to appear on the nomination statement and
the surname must be underlined. The petitioner averred that in the nomination certificate that
was issued to him by his political party, and which certificate he presented to the 2 nd Respondent,
his name appeared as Rishad Hamid Ahmed Amana.He complained that his surname “Amana’
was omitted from the ballot paper. It was his contention that by reason of this omission, voters
who would have otherwise voted for him were prevented from voting for him because they did
not find the name “Amana’ in the ballot paper.

The court noted that in Kenya proof of citizenship is the national identity card or a passport
issued by the Government of Kenya. Section 24 (1) (a) of the Elections Act basically reproduces
the provisions of Article 99 (1) (a) of the Constitution of Kenya 2010 in regard to the
qualifications of person who offers himself as a candidate in an election. It includes the
requirement that such person must be a registered voter, to satisfy educational, moral and ethical
requirements also.

Other cases to consider; Election Petition 4 of 2017; Criminal Case 115 of 2013; Cause 1652 of
2013; Republic v. National Hospital Insurance Fund Board of Management & another Ex parte
Law Society of Kenya [2019] eKLR and Civil Application 26 of 2018.

In LA Group (PTY) Ltd v Wardrobe Collections [2019] eKLR9.

The appellant in this case was disputing the decision of the Assistant Registrar of Trade marks.
LA Group is a South African company that has used the ‘POLO’ mark as well as ‘POLO PONY’
device. It sources and distributes branded fashion items and manages corporate clothing and
brands. As such, it has licensed the use of marks to its wholly owned subsidiaries called Polo

9
In LA Group (PTY) Ltd v Wardrobe Collections [2019] eKLR.

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management, PYT Limited and Polo distribution PYT Ltd. The petition is also the registered of
two Trade Marks in Kenya: the ‘POLO’ mark and the ‘POLO PONY’ device.

The appellant was aggrieved by the application by the respondent to register the mark ‘CLASSIC
POLO’, and claimed that the respondent’s application to register the contested mark should be
denied. The Respondent however, contended that the mark is distinct from LA Group’s. The
Registrar dismissed the opposition proceedings. In the same decision, the Registrar allowed
Wardrobe Collection to proceed with its application to register its Trade Mark.

The High Court found that the Registrar erred in principle in its decision. It found that allowing
the registration would contravene Section 15. As a result, the court held that the contested mark
is to be cancelled and the mark removed from the Trade Marks register.

The purpose of highlighting the case is to demonstrate the use of statutory declaration forms in
Trade Marks proceedings. The evidence of the parties during the opposition proceedings before
the Registrar were submitted in the form of statutory declaration as per Rules 49, 50 and 51 of
the Trade Marks Rules. The Managing Director of Wardrobe filed a statutory declaration in
response to LA Group’s statutory opposition supporting its Notice of Opposition. 10 The court of
appeal, the High Court in this instance relied on the evidence submitted in these statutory
declarations to determine the issues.11

10
Ibid, Para 29
11
Ibid, Par 39 - 40

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1.6. SAMPLE STATUTORY DECLARATION

THE REPUBLIC OF KENYA

IN THE MATTER OF THE OATHS AND STATUTORY DECLARATIONS
CAP.15 OF THE LAWS OF KENYA
STATUTORY DECLARATION
I, Mule Omari, living and working in Mombasa, of P.O. Box No. 224466, Mombasa, make oath
and state as follows:
1. That I am a male adult of sound mind and therefore competent to swear this statutory
declaration.
2. That I am the registered owner of national identity card number 10203040 issued on the
22nd day of June, 2005.
3. The national identity card number 10203040 got lost on 20 th May 2020 near the National
Archives when I was attacked by two thieves who stole my wallet where I kept my ID.
4. That the ID has not been traced hence the report made to the Central Police Station.
(Annexed is a certified copy of the police abstract dated 21st May 2020).
5. That I have applied to be issued with a new ID to replace the lost one.
(Attached herewith is a copy of the application form for a new ID and the necessary
fees.)
6. That I swear this statutory declaration in support of my application to be issued with a
new ID to replace the lost one.
7. That what is stated in this statutory declaration is true to the best of my knowledge and
belief.
Sworn by the said )
MULE OMARI this 1st day of September 2020 ) .....................................
) DEPONENT
BEFORE ME )
JANE BROWN. )

COMMISSIONER FOR OATHS )

DRAWN & FILED BY:

FIRM 27 & CO. ADVOCATES
1ST FLOOR, KSL BUILDING, CLASS C

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P.O. BOX 543, NAIROBI.

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