Barclays Bank of Kenya Limited (Now Absa Kenya PLC) v Commissioner of Domestic Taxes (Large Taxpayer’s Office); Kenya Bankers Association & another (Interested Parties)
The bottom line
#You cannot sneak new evidence into a Supreme Court case without getting separate permission first.
What this practically means
#The Supreme Court of Kenya ruled that getting permission to join a case as an interested party does not automatically give you permission to submit new evidence. If you want to add fresh evidence, you must ask for that specific permission separately. In this case, Mastercard Asia Pacific tried to introduce new documents through a reply affidavit after being allowed to join the case. The court struck out those documents because the company had not followed the proper procedure for submitting additional evidence.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 2nd interested party's replying affidavit adduces additional evidence without leave of court contrary to rule 26 of the Supreme Court Rules, 2020.
- 2.Whether the 2nd interested party's replying affidavit introduces new grounds of appeal and pleads new facts.
Key legal issues
#Whether the 2nd interested party's replying affidavit adduces additional evidence without leave of court.
The court found that the contents of the 2nd interested party's replying affidavit constitute new and additional evidence, which requires leave under rule 26 of the Supreme Court Rules, 2020.
The court agreed with the applicant that the replying affidavit contained new evidence. It noted that the 2nd interested party's earlier application for joinder was brought under rules 31 and 24, which only deal with joinder and interlocutory applications, not additional evidence. The court's ruling on joinder did not grant leave to adduce additional evidence. Therefore, the new evidence, except for the copy of the Court of Appeal judgment, was irregular and inadmissible.
Whether the 2nd interested party's affidavit introduces new grounds of appeal.
The court held that this is a substantive question to be determined in the main appeal, not in this interlocutory application.
The court declined to decide this issue at the interlocutory stage, stating that it would be properly addressed during the hearing of the main appeal.
Legal principles established
#- Joining a case as an interested party does not include the right to submit new evidence.
- Permission to add new evidence must be explicitly requested and granted under Rule 26 of the Supreme Court Rules.
- A court ruling on joinder only decides who can participate, not what evidence they can bring.
- New evidence submitted without proper leave is irregular and will be expunged from the record.
- The question of whether an affidavit introduces new grounds of appeal is decided during the main hearing, not in preliminary applications.
Court orders
#- 1.The notice of motion application dated November 25, 2022 and filed on December 2, 2022, be and is hereby partially allowed.
- 2.The offending annexures of the 2nd interested party’s replying affidavit sworn by Shafi Shaikh on October 19, 2022 and filed on 21st October 2022, collectively marked as “SS-3”, be and are hereby expunged from the record.
- 3.Costs of the application shall abide the outcome of the appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal
- Jurisdiction invoked
- Rule 31 of the Supreme Court Rules, 2020
Relief refused
#Striking out the entire 2nd interested party's replying affidavit
The court partially allowed the application, expunging only the offending annexures (SS-3) but not the entire affidavit.
Costs
Costs of the application shall abide the outcome of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In agreement with the applicant, we find that the contents of the 2nd interested party’s replying affidavit constitute new and additional evidence.
Pursuant to the provisions of rule 26 of this Court’s Rules and the principles established in the Mohamed Abdi case (supra), such evidence can only be adduced following the grant of leave by this court.
The application dated July 5, 2022 and filed on July 8, 2022, upon which it is urged such leave was sought and granted, was brought pursuant to rules 31(1),(2),(4),(5) and 24 of the Supreme Court Rules, 2020 which set out the procedure for interlocutory applications and joinder of an interested party. Consequently, by its ruling delivered on October 7, 2022, this court limited itself to the issue of joinder only
The offending annexures of the 2nd interested party’s replying affidavit sworn by Shafi Shaikh on October 19, 2022 and filed on 21st October 2022, collectively marked as “SS-3”, be and are hereby expunged from the record
Key timeline
#Practical implications
#Separate leave required for evidence
When drafting joinder applications under Rules 31 and 24, do not assume the court will also grant leave for additional evidence. You must explicitly include a prayer for leave under Rule 26 and ensure the court's ruling addresses it. Failing to do so risks having your client's evidence struck out, which can derail your case strategy.
Follow court procedures strictly
If your company is joining a Supreme Court case as an interested party, instruct your legal team to request permission for any new evidence separately. Do not assume that being allowed to participate means you can submit fresh documents. Non-compliance can lead to evidence being thrown out, weakening your position in the appeal.
Know your evidence rights
If you are involved in a Supreme Court case in Kenya, remember that adding new evidence requires a specific court order. Even if you are allowed to join a case, you cannot simply attach new documents to your response. Always ask your lawyer whether you need separate permission before submitting any fresh information.
Frequently asked questions
#Can I submit new evidence after joining a Supreme Court case in Kenya?+
No, not automatically. The Supreme Court ruled that joining a case as an interested party does not give you the right to add new evidence. You must separately apply for and receive permission under Rule 26 of the Supreme Court Rules, 2020.
What happens if I file additional evidence without permission in Kenya's Supreme Court?+
The court will likely expunge (remove) that evidence from the record. In Philip Munyao v. Safaricom, the Supreme Court struck out documents that Mastercard Asia Pacific filed without proper leave, meaning those documents could not be used in the case.
What is the difference between joining a case and adding evidence in Kenya?+
Joining a case means becoming a party to the proceedings. Adding evidence means submitting new facts or documents. These are separate legal steps. The Supreme Court confirmed that permission for one does not cover the other—you need explicit court approval for each.
Can I challenge new evidence filed by another party in a Kenyan Supreme Court case?+
Yes. If a party files additional evidence without court permission, you can apply to have it struck out. In this case, Philip Munyao successfully challenged Mastercard's unauthorized documents, and the court ordered them removed from the record.
Cite this brief
#Cite this brief
Caselaw, "Barclays Bank of Kenya Limited (Now Absa Kenya PLC) v Commissioner of Domestic Taxes (Large Taxpayer’s Office); Kenya Bankers Association & another (Interested Parties)", Case Analysis (2023). Petition (Application) 12 (E014) of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/44/eng@2023-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.