Peter Mwaura: An affidavit may save you the trouble of appearing in court

Lang’ata MP Raila Odinga did it last week. So did his Naivasha colleague, Mr John Mututho, three weeks earlier.

They avoided the inconvenience — and possibly the indignity — of appearing in court to defend their contested elections by filing an affidavit.

An affidavit is a magic-like document that enables complainants, defendants or witnesses to present court evidence in absentia.

It has been criticised as very weak evidence because it is not given personally in court. But many cases are decided on affidavit evidence.

Affidavits, in case of litigation outside Kenya, are also accepted in the courts of other countries that have signed the 1961 Hague Convention on foreign public documents.

An affidavit is written evidence, and it is the best thing ever devised by the courts since judicial impunity.

It saves time, speeds up the court process and usually saves its maker the trouble and expense of personally attending court.

MR ODINGA AND MR MUTUTHO BE- nefited from the power of the affidavit, which is little understood by the public and much contested by lawyers.

On April 4, the High Court in Nairobi typically declined to summon Mr Odinga to be cross-examined on his affidavit.

In his affidavit, the Prime Minister-designate had said he was not personally served with the petition papers in the case filed against him by Mr Stanley Livondo, who unsuccessfully contested the Lang’ata seat.

The court said there was no need for Mr Odinga to appear before it personally to be cross-examined since his affidavit was sufficient evidence.

In Mr Mututho’s case, the High Court in Nakuru said the court would continue to rely on affidavit evidence without calling witnesses for cross-examination, while former Naivasha MP Jayne Kihara, who petitioned against his election, maintained that the best evidence was evidence by word of mouth. She argued, through her lawyer, that there was need to understand what Mr Mututho was saying in his replying affidavit. But that argument did not cut any ice.

The same thing happened to presidential candidate Mwai Kibaki, who petitioned against President Moi’s election.

In 1998, Mr Kibaki wanted to cross-examine the President on his replying affidavit, but the court said “no”, arguing that to cross-examine the maker of an affidavit is at the discretion of the court.

All judges seem to be agreed on the issue of affidavits.

Lady Justice Mary Kasango spoke for many others when she said in 2006 that “no party has absolute right” to cross-examine his opponent on the contents of an affidavit.

“The court has discretion whether or not to allow cross-examination,” she said in the Mohamed Malik vs Joseph Githongo case.

Filing an affidavit is indeed a smart way of avoiding court appearance, as the courts will not normally require you to attend; it is a way of avoiding an undue hardship and long waits in court.

It is “sworn” before a commissioner for oaths — most lawyers are — who declares that he or she knows you (the affiant or deponent) and signs and stamps it.

An affidavit enables the courts, traditionally overburdened with heavy case loads, to save time by not having to call witnesses.

It also enables the witnesses to skip court if they are scared or cannot be made to appear, or because they are too busy, incapacitated or unable to attend for whatever reason.

It tells the court what you would have wanted to say if you had appeared in court in person.

Most evidence in civil cases is provided by an affidavit, thus allowing cases to run more quickly and efficiently.

However, much as it promotes judicial economy, it can defeat justice on technicalities.

Order VII (2) of the Civil Procedure Rules requires that a plaint (a complaint) be “accompanied by an affidavit sworn by the plaintiff verifying the correctness of the averments contained in the plaint.”

IN THE CASE OF GAWO & OTHERS v the Nairobi City Council and Others the plaintiff did not file a verifying affidavit and the suit was struck out.

The court also struck out the case of Mohammed Olunga Oduor v The Mumias Outgrowers Co Ltd because the affidavit was filed “out of time” — actually two days late — and “no extension of time was sought or obtained to file out of time”.

Mr Oduor had been given 21 days within which to file “a proper verifying affidavit.” Mr Justice Kariuki was unequivocal: “Court orders are not made in vain, and to say that the affidavit was only a little late was somewhat flippant.”

And the court decided to strike out the case of Delphis Bank v Sudi Ltd because it was supported by an affidavit bearing the wrong date.

An affidavit is liable to misuse since it is left entirely at the discretion of individual judges if the affiant may be cross-examined.

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