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
#Supreme Court allows late filing of evidence if it clarifies the real issues in dispute.
What this practically means
#The Supreme Court of Kenya has ruled that a party can file a supplementary affidavit even after a case has started, as long as it helps the court understand the real issues. The court has discretion under its rules to allow this, especially if the other side can still respond. The court refused to decide at this stage whether the new affidavit raises new legal issues, leaving that for the main hearing. This ruling confirms that procedural flexibility exists to ensure fairness and justice.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court can grant leave to file a supplementary affidavit under Rule 17(1) of the Supreme Court Rules 2020
- 2.Whether the applicant has demonstrated that the supplementary affidavit will help define the real questions in controversy
- 3.Whether prejudice will be suffered by the respondent if leave is granted
- 4.Whether the application introduces new issues beyond the scope of a second appeal
Key legal issues
#Whether the Supreme Court can grant leave to file a supplementary affidavit in a pending appeal
The Court has discretion under Rule 17(1) of the Supreme Court Rules 2020 to grant such leave, and it will do so where the affidavit helps define the real questions in controversy and no prejudice is caused.
The Court considered Rule 17(1) which expressly gives discretion to grant leave to file further pleadings or affidavits, and Section 21(2) of the Supreme Court Act and Rule 3(5) which grant inherent power for ends of justice. The applicant demonstrated the supplementary affidavit would help define its stake in the appeal. The respondent would have an opportunity to respond, so no prejudice. The question of whether new issues are introduced was deferred to the main appeal.
Whether the application introduces new issues beyond the scope of a second appeal
The question of whether pleadings introduce new issues is a substantive question to be determined in the main appeal, not in an interlocutory application for leave to file a supplementary affidavit.
The respondent argued that the appeal is a second appeal limited to points of law and that the applicant's affidavit introduces new issues. The Court declined to determine this at the interlocutory stage, stating it is a substantive question properly determined in the main appeal.
Legal principles established
#- The Supreme Court has discretion under Rule 17(1) of its Rules to allow a party to file additional affidavits.
- The court may grant leave to file further pleadings if it helps define the real questions in controversy.
- The court has inherent power under Section 21(2) of the Supreme Court Act to make orders necessary for the ends of justice.
- Whether a pleading introduces new issues is a substantive question for the main appeal, not an interlocutory application.
- Leave to file a supplementary affidavit will not be denied if the other party can still respond and no prejudice is shown.
Court orders
#- 1.The Notice of Motion dated 19th October 2023 and filed on 23rd October 2023 is hereby allowed
- 2.The applicant shall file and serve the Supplementary Affidavit within seven (7) days from the date of this Ruling
- 3.Costs shall be in the Cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Section 3A of the Supreme Court Act and Rules 3(5) and 17(1) of the Supreme Court Rules, 2020
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.
the applicant has demonstrated to our satisfaction that the supplementary affidavit it seeks to file will help the Court further define the real questions in controversy, and specifically the 2nd interested party’s stake in the appeal
No prejudice will be suffered as the respondent will have an opportunity to respond to the averments by the applicant in the course of the hearing of the main appeal
As to whether either of the parties’ pleadings introduce new issues, we restate our finding in the earlier Ruling delivered on 16th June 2023, to the effect that this is a substantive question that will be properly determined in the main appeal
The Notice of Motion dated 19th October 2023 and filed on 23rd October 2023 is hereby allowed
The applicant shall file and serve the Supplementary Affidavit within seven (7) days from the date of this Ruling
Costs shall be in the Cause
Key timeline
#Practical implications
#Use Rule 17(1) for late evidence
When opposing counsel introduces new factual allegations in a replying affidavit, you can apply under Rule 17(1) of the Supreme Court Rules 2020 to file a supplementary affidavit. The court will grant leave if you show the affidavit helps define the real issues and no prejudice results. Defer arguments about new issues to the main appeal.
Flexibility to correct factual errors
If you are a party in a Supreme Court appeal and the other side makes factually incorrect claims in their filings, you can ask the court for permission to file a supplementary affidavit to correct the record. The court will allow it if it clarifies your stake in the case and the other side can still respond. This prevents procedural technicalities from blocking justice.
Your right to respond to new claims
If you are involved in a Supreme Court case and the other party introduces new allegations against you, you have the right to seek leave to file a supplementary affidavit to respond. The court will consider your request if it helps clarify the real issues and does not unfairly prejudice the other side. You do not need to wait until the main hearing.
Frequently asked questions
#Can I file new evidence after a case has started in the Supreme Court of Kenya?+
Yes, you can apply for leave under Rule 17(1) of the Supreme Court Rules 2020. The court will allow it if the new evidence helps define the real issues in dispute and the other party can still respond. The court has discretion to grant this for the ends of justice.
What happens if the new affidavit raises new legal issues in Kenya's Supreme Court?+
The Supreme Court will not decide that question at the interlocutory stage. It will defer the issue of whether new issues are introduced to the main appeal. This means you can still file the affidavit, and the court will address the scope of the appeal later.
How long do I have to file a supplementary affidavit in the Supreme Court of Kenya?+
If the court grants leave, it will specify a deadline. In this case, the court ordered the applicant to file and serve the supplementary affidavit within seven days from the date of the ruling. Always check the court's order for the exact timeline.
What is the cost of filing a supplementary affidavit in Kenya's Supreme Court?+
The court ordered that costs for this application shall be in the cause, meaning the losing party in the main appeal may eventually pay. You should budget for legal fees and filing costs, but the court may not require immediate payment of costs for the application itself.
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 (2024). Petition (Application) 12 (E014) of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/6/eng@2024-03-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.