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Supreme CourtDismissedPetition (Application) 12 (E014) of 2022

Barclays Bank of Kenya Limited (Now Absa Kenya PLC) v Commissioner of Domestic Taxes (Large Taxpayer’s Office); Kenya Bankers Association & another (Interested Parties)

Supreme Court of Kenya
6 October 2023
1,377 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Supreme Court threw out a bid to add evidence already in the court file or public.

What this practically means

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Shafi Shaikh asked the Supreme Court to add new documents to a case against the Central Bank of Kenya. The Court found most were already in the appeal record, and the rest were publicly available. The Court called the application a waste of time, dismissed it, and ordered Mr. Shaikh to pay the costs. This shows lawyers must check the court file first.

Executive summary

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This ruling by the Supreme Court of Kenya (a five-judge bench) dismissed an application by the 2nd interested party (Shafi Shaikh) for leave to adduce additional evidence in an ongoing appeal. The applicant sought to introduce documents including a Card Member License Agreement, letters, a card transaction flow chart, an excerpt of a bulletin, and screenshots of the Kenya eCitizen portal. The court examined the record and found that most of the documents were already part of the record of appeal (volumes six and seven). The card transaction flow chart was repetitive of the respondent's explanation and pictorial illustrations already on record. The only remaining documents—the bulletin excerpt and eCitizen screenshots—were in the public domain. The court applied the principles from Mohamed Abdi Mahamad v Ahmed Abdullahi Mohamed & 3 others, which require a party to satisfy all elements under section 20 of the Supreme Court Act, 2011, rule 26 of the Supreme Court Rules, 2020, and the settled principles, with the court granting leave only sparingly and with abundant caution. The court concluded that none of the conditions were satisfied, found the application frivolous and an abuse of court process, and dismissed it with costs to the applicant. The judgment emphasizes the importance of due diligence by advocates in perusing court records before filing such applications.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has satisfied the conditions for leave to adduce additional evidence under section 20 of the Supreme Court Act, 2011, rule 26 of the Supreme Court Rules, 2020, and the principles set out in the Mohamed Abdi Mahamud case.

Key legal issues

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01

Whether the applicant satisfied the conditions for leave to adduce additional evidence under section 20 of the Supreme Court Act, 2011, rule 26 of the Supreme Court Rules, 2020, and the principles in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamed & 3 others.

Holding

The applicant failed to satisfy the conditions because the evidence sought to be adduced was either already part of the record or in the public domain, and the application was frivolous and an abuse of court process.

Reasoning

The court examined the documents the applicant sought to adduce and found that most were already reproduced in the record of appeal (volumes six and seven). The card transaction flow chart was repetitive of the respondent's explanation and pictorial illustrations already on record. The only remaining documents—an excerpt of the applicant's bulletin and screenshots of the Kenya eCitizen portal—were in the public domain. The court emphasized that the applicant's advocates had not exercised due diligence in perusing the court's record, wasting judicial time and resources. Applying the principles from Mohamed Abdi Mahamud, the court concluded that none of the conditions for granting leave were met.

Legal principles established

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  • A party seeking to add new evidence must meet all conditions under the Supreme Court Act and Rules.
  • The Court will only allow additional evidence sparingly and with caution.
  • Evidence already on the court record or in the public domain does not qualify as new evidence.
  • Advocates must exercise due diligence in reviewing the court record before filing such applications.
  • Frivolous applications that waste judicial time may be dismissed with costs.

Court orders

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  1. 1.The motion dated July 6, 2023 and filed on July 10, 2023, is hereby dismissed
  2. 2.The costs of this application shall be borne by the applicant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
Jurisdiction invoked
Section 20 of the Supreme Court Act, 2011; rule 26 of the Supreme Court Rules, 2020

Relief refused

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Leave to adduce additional evidence

None of the conditions for the grant of leave to adduce additional evidence have been satisfied; the application is frivolous and an abuse of court process.

Costs

The costs of this application shall be borne by the applicant.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The applicant is duty bound to satisfy all the elements under the provisions of section 20 of the Supreme Court Act, 2011; rule 26 of the Supreme Court Rules, 2020; and the principles set out in the Mohamed Abdi Mahamud case (supra)
p. 4 Burden on applicant for additional evidence
It is evident that the additional evidence sought to be introduced is either part of the record before this court or in the public domain both locally and internationally
p. 4 Nature of evidence not qualifying as additional
Applying these principles to the application, we arrive at the inevitable conclusion that none of the conditions for the grant of leave to adduce additional evidence have been satisfied.
p. 4 Conclusion on application

Key timeline

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2023-07-06
Motion for leave to adduce additional evidence dated
2023-07-10
Application filed in the Supreme Court
After July 2023
Supreme Court dismissed the application with costs

Practical implications

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For lawyers

Due diligence before filing additional evidence

The Supreme Court dismissed the application because the evidence was already on record or public. Lawyers must carefully review the court file before filing. Failure to do so can lead to dismissal with costs, wasting client resources. Ensure you can meet all conditions under the Supreme Court Act and Rules before applying.

For businesses

Costs of frivolous court applications

Businesses involved in litigation should be aware that courts can dismiss applications that lack merit and award costs against the applicant. This protects the other party from unnecessary expenses. Ensure your legal team conducts thorough research before filing any motion, especially to add new evidence.

For individuals

You cannot introduce evidence already available

If you are a party in a case, you cannot ask the court to consider documents that are already in the case file or that are publicly available. The court expects you to present all relevant evidence at the right time. Attempting to add old evidence may result in your application being dismissed and you paying costs.

Frequently asked questions

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How do I apply to add new evidence in the Supreme Court of Kenya?+

You must file a formal application under section 20 of the Supreme Court Act and rule 26 of the Supreme Court Rules. The court will only grant leave sparingly. You must show the evidence is new, not previously available, and could affect the outcome. The court will dismiss frivolous applications.

Can I introduce new evidence on appeal in Kenya?+

Yes, but only with permission from the court. The Supreme Court has strict conditions. The evidence must not have been available earlier, must be relevant, and must not be already in the record or public domain. The court will dismiss applications that are frivolous or an abuse of process.

What happens if I file a frivolous application in the Kenyan Supreme Court?+

The court can dismiss your application and order you to pay the costs of the other party. The court may also consider it an abuse of process. It is important to have a strong legal basis before filing, as the court expects due diligence from advocates.

What is the Mohamed Abdi Mahamud case principle on additional evidence in Kenya?+

The Supreme Court in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamed set out principles for allowing additional evidence: the evidence must be new, not available at trial, and incapable of being obtained earlier. The court applies these principles strictly, and the applicant must satisfy all conditions.

Cite this brief

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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/2023/91/eng@2023-10-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.