by: Guto Mogere, Ronald Makokha, Dennis Nkarichia & Cristopher Munene
Introduction
In the quiet solemnity of a Nairobi courtroom, a legal principle as old as the common law itself faced its most modern challenge. The affidavit, a sworn testimony foundational to judicial decisions for centuries, found itself interrogated not for its content, but for the space in which it came into being. For generations, this ritual of truth-telling demanded physical presence: a deponent standing before a commissioner, pen in hand, transforming words into binding pledges under penalty of perjury. Yet in Dardanelli & 6 others v Tilito & 3 others,[1] Justice Mwangi Njoroge confronted a question that pierces the veil between tradition and innovation: Can an oath administered through pixels and radio waves carry the same juridical weight as one sworn in person?
The case hinged on a striking admission: a deponent had sworn an affidavit while physically absent from Kenya, despite the jurat’s solemn declaration that the oath occurred in Nairobi. Defense counsel openly acknowledged this as “common practice,” exposing a systemic divergence between daily legal workflows and statutory requirements. This tension is not new. Twenty-three years earlier, the East Africa Court of Appeal in DB Shapriya and Co Ltd v Bish International BV had underscored the non-negotiable nature of affidavit formalities. Striking out an affidavit over a missing location in its jurat, Justice Ramadhani declared: “Rules governing affidavits must be followed religiously.”
Between these rulings lies a quarter-century of technological revolution, one that has reshaped how society conceptualizes presence, place, and communication. Yet the law, by design evolutionary rather than disruptive, clings to physicality even as it accommodates electronic evidence through frameworks like Section 106B of the Evidence Act. This jurisprudential paradox raises a question far weightier than procedural compliance: What essence of the oath-taking ritual must endure as legal processes digitize? To answer this, we must trace the affidavit’s historical roots, dissect the courts’ reasoning across eras, and forge a path that honors tradition without shackling progress.
Historical Context: The Sacred Origins of Oath-Taking
The practice of sworn testimony predates written law itself. In ancient societies, oaths were sworn before gods, with rituals performed in sacred spaces to invoke divine punishment for falsehoods.[2] Roman law formalized this into the iusiurandum,[3] a verbal oath taken before magistrates, while English common law later enshrined affidavits as written evidence authenticated by commissioners.[4] These traditions shared a unifying principle: physical presence as a conduit of truth. A deponent’s bodily attendance before an authority figure, whether priest, king, or notary, transformed mere words into binding pledges, their proximity ensuring both psychological gravity and verifiable identity.
The historical context illuminates why courts have long treated procedural formalities with reverence. Consider the DB Shapriya & Co Ltd v Bish International BV case, where an affidavit was struck out merely because its jurat (the commissioner’s attestation) omitted the exact physical location where the oath was taken. Though the commissioner’s rubber stamp included “Dar-es-Salaam,” the Court of Appeal insisted the place be explicitly stated in the jurat text, declaring: “The requirement is mandatory… defective affidavits could be filed only with the leave of the court.”[5] Such fastidiousness underscores a deeper truth: affidavits derive their power not just from content, but from the meticulous observance of rituals that signal trustworthiness.
Kenya’s legal system inherited this tradition, with Section 5 of the Oaths and Statutory Declarations Act codifying the requirement that a commissioner “state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made.” This provision, seemingly straightforward in a pre-digital era, has acquired new complexity as the concept of “place” itself has become increasingly virtual.
The Dardanelli Ruling
Against this historical backdrop, the Dardanelli case confronted a more complex scenario. At its center stood an affidavit sworn by the first defendant, Pasquale Tirito, on May 23, 2024. The document bore all traditional hallmarks of proper commissioning: a signature, a commissioner’s stamp, and a jurat stating it was sworn in Nairobi. Yet beneath this veneer of procedural conformity lay a significant admission, the deponent was not physically present in Kenya when the affidavit was purportedly sworn.
Rather than deny this physical absence, defense counsel embraced it, advancing what the court recognized as a bold argument for legitimizing virtual commissioning. Their position essentially asked the court to acknowledge that technological advancement had rendered the physical presence requirement obsolete, an argument that directly challenged not only statutory provisions but the very conceptual foundation of oath-taking as articulated in DB Shapriya. Justice Mwangi Njoroge’s response was scathing: “Common practice does not equate to legal practice.” Striking out the affidavit, he exposed a gaping hole in the digital logic, without physical presence, how do we prevent fraud, ensure the deponent’s comprehension of the document, or hold liars accountable?
The court’s analysis turned on a pivotal distinction: while virtual court hearings operate within structured, multi-participant environments with security protocols and judicial oversight, affidavit commissioning is an intimate act between two parties. The Court acknowledged technology’s role in modernizing court attendance but emphasized that sworn affidavits demand stricter safeguards. Unlike hearings witnessed by judges, clerks, and opposing counsel, commissioning lacks independent verification. This isolation, the court warned, invites two critical risks:
- Ambiguity of Consent: Without physical presence, commissioners cannot confirm a deponent’s real-time understanding or approval of affidavit contents, risking disputes that could “bloat case backlogs with challenges to authenticity.”
- Jurat Integrity: A commissioner attesting to a false location in the jurat commits a “falsehood,” undermining their role as guarantor of truth—a principle echoed in Tanzania’s DB Shapriya ruling, which struck out an affidavit for omitting the swearing location despite a “Dar-es-Salaam” stamp.
The court’s analysis highlighted a fundamental paradox within contemporary digital legal practices. While legislation, such as Section 106B of the Evidence Act, ostensibly permits the use of electronic records, it simultaneously imposes stringent authentication requirements. These mandates encompass rigorous device certification, robust platform security protocols, and thorough participant verification. The defense’s inability to satisfy these criteria revealed a significant systemic flaw: legal practitioners had seemingly prioritized ease and speed over meticulous adherence to legal standards. This oversight manifested in a casual approach to virtual commissioning, treated as a mere expedient rather than a process necessitating rigorous procedural compliance.
The ruling’s implications stretch beyond technicalities. By rejecting the “common practice” defense, the Court affirmed that affidavits derive their authority not merely from content but from the ritual of physical presence, a practice designed to ensure psychological gravity, identity verification, and voluntary participation. This aligns with centuries of legal philosophy, where proximity between deponent and commissioner transforms words into binding pledges. To discard this ritual without equivalent safeguards, the court cautioned, risks eroding public trust in sworn testimony itself.
The Dardanelli ruling and Shapriya case form bookends of a legal principle: rituals matter. In Shapriya, the omission of a location wasn’t just a clerical error, it risked eroding public trust in affidavits as unassailable records. Similarly, Dardanelli warns that digitizing rituals without preserving their solemnity turns legal processes into hollow pantomimes. Consider the parallels:
- Jurat Integrity: Both cases fixated on the jurat’s accuracy. In 2002, EAC demanded explicit place names; in 2025, J. Njoroge rejected virtual attestations that obscured geography.
- Procedural Sacredness: Each court treated deviations as existential threats. “Defective affidavits could be filed only with the leave of the court,” cautioned Shapriya, while Dardanelli condemned commissioners who “utter falsehoods” in jurats.
- The Specter of Fraud: Without strict formalities, courts fear a slide into chaos—deponents denying signatures, commissioners rubber-stamping unseen documents, and a flood of perjury claims.
Yet these cases also reveal a generational shift. Where Shapriya dealt with analog negligence (a missing address), Dardanelli confronts digital disruption, asking: Can technology replicate the intangible “aura” of physical oath-taking?
Conclusion
The Dardanelli ruling is no Luddite manifesto. It’s a clarion call to rebalance innovation with integrity, to ensure that as affidavits migrate online, they carry the gravitas of their analog ancestors. Just as the East Africa court in 2002 refused to trivialize place names, Kenya’s judiciary now demands that digital convenience not dilute legal truth. The lesson is universal: whether sworn in stone courtyards or cyberspace, an oath’s power lies in its ability to bind conscience to consequence. As technology reshapes law, we must ask not just “Can we do this remotely?” but “How do we make the remote feel real?” The answer will define nothing less than the future of truth itself.
- [2025] KEELC 392. ↑
- Mircea Eliade, The Sacred and the Profane: The Nature of Religion (Harcourt Brace 1959) 24-37 (discussing sacred spaces as loci of ritual truth-telling). ↑
- Digest of Justinian 12.2.1 (Theodor Mommsen and Paul Krueger eds, Alan Watson tr, University of Pennsylvania Press 1985) (defining oaths in Roman law); Barry Nicholas, An Introduction to Roman Law (Clarendon Press 1962) 19-21. ↑
- John Baker, An Introduction to English Legal History (5th edn, OUP 2019) 78-82 (tracing the formalization of sworn written testimony). ↑
- Halsbury’s Laws of England vol 17 (4th edn, LexisNexis 2011) para 316 ↑