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Case Brief · caselaw.co.ke
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
23 May 2025
867 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Supreme Court says parties must seek leave promptly or lose chance to file late documents.

What this practically means

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The Supreme Court of Kenya dismissed an application by the 2nd interested party to file supplementary submissions after the respondent was allowed to file submissions late. The court found the applicant failed to seek corresponding leave at the right time, and any unfairness could be fixed through oral arguments. The decision reinforces that courts have discretion but will not reward delay without clear justification.

Executive summary

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This is a ruling by the Supreme Court of Kenya on a Notice of Motion dated 9th January 2025 filed by the 2nd interested party/applicant seeking leave to file supplementary submissions in response to the respondent's submissions. The application was brought under Section 3A of the Supreme Court Act, 2011 and Rules 3(5), 17(1) of the Supreme Court Rules, 2020. The applicant argued that in a previous Ruling delivered on 13th December 2024, the Court granted the respondent leave to file submissions out of time and correspondingly granted the petitioner/respondent and 1st interested party/respondent leave to file rejoinder submissions, but inadvertently omitted the 2nd interested party/applicant, thereby denying it the right to reply contrary to Article 50(1) of the Constitution. The respondent opposed the application, contending that the only party entitled to corresponding leave was the petitioner/respondent, and that the applicant had failed to seek such leave at the appropriate time. The Court found that the applicant admitted it neither filed a response to the respondent's application nor sought corresponding leave, and that the grant of leave to file supplementary pleadings is a matter of judicial discretion. The Court saw no persuasive basis to exercise discretion in favour of the applicant, noting that any prejudice could be remedied by oral submissions. The application was dismissed with costs to abide the outcome of the appeal.

Questions the Court framed

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

  1. 1.Whether the 2nd interested party/applicant should be granted leave to file supplementary submissions in response to the respondent’s submissions.

Key legal issues

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01

Whether the 2nd interested party/applicant should be granted leave to file supplementary submissions after the Court's Ruling granting the respondent leave to file submissions out of time.

Holding

The application was dismissed because the applicant failed to seek corresponding leave at the time of the respondent's application, and any prejudice could be remedied by oral submissions.

Reasoning

The Court noted that the 2nd interested party/applicant admitted it neither filed a response to the respondent's application for leave to file submissions out of time, nor sought corresponding leave to file submissions in rejoinder. The Court found no persuasive basis to exercise its discretion in favour of the applicant, especially since any prejudice could be addressed through oral submissions during the hearing of the main appeal.

Legal principles established

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  • Leave to file supplementary pleadings is a matter of judicial discretion, not a right.
  • A party who fails to seek corresponding leave at the time of the opponent's application cannot demand it later.
  • Prejudice from procedural gaps can be remedied through oral submissions at hearing.
  • Courts may deny relief if the applicant did not respond or seek leave when the opposing party applied.
  • Interested parties must actively protect their own procedural rights, not rely on others.
  • The right to fair hearing under Article 50(1) does not automatically require written replies where oral submissions suffice.

Court orders

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  1. 1.The Notice of Motion dated 9th January 2025 and filed on 10th January 2025 is hereby dismissed.
  2. 2.Costs shall abide the outcome of the appeal.

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 3A of the Supreme Court Act, 2011 and Rules 3(5), 17(1) of the Supreme Court Rules, 2020

Relief refused

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Leave to file supplementary submissions in response to the respondent’s submissions

The 2nd interested party/applicant neither filed a response to the respondent’s application seeking leave to file submissions out of time, nor sought corresponding leave to file submissions in rejoinder; and any prejudice can be remedied by oral submissions.

Costs

Costs shall abide the outcome of the appeal.

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 Notice of Motion dated 9th January 2025 and filed on 10th January 2025 is hereby dismissed.
p. 2 Final orders dismissing the application
The grant of leave to file supplementary pleadings is ultimately a question of judicial discretion.
p. 2 Judicial discretion in granting leave to file supplementary pleadings
we see no persuasive basis for exercising such discretion in favour of the applicant. In any event, such prejudice, if any, that may visit the applicant, can be remedied by oral submissions.
p. 2 Reason for refusal of leave

Key timeline

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13 December 2024
Supreme Court granted respondent leave to file submissions out of time, and gave petitioner and 1st interested party leave to file rejoinder.
9 January 2025
2nd interested party filed Notice of Motion seeking leave to file supplementary submissions.
10 January 2025
Motion formally filed in court registry.
2025 (exact date not specified)
Supreme Court dismissed the application with costs to abide outcome of appeal.

Practical implications

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For lawyers

Act early on procedural rights

When opposing a party's application for extension of time, file a response and simultaneously seek corresponding leave if you need to file later. Waiting until after the ruling on the main application risks discretionary denial, as the Supreme Court found no persuasive basis to grant relief here. Oral submissions may be deemed sufficient to cure prejudice.

For businesses

Missed deadlines hurt your case

If you are a party to a court case and another side gets permission to file late documents, immediately ask the court for permission to respond. The Supreme Court refused to help a party who waited until after the ruling to request its own late filing. In business disputes, failing to act promptly can lose you the chance to fully defend your position in writing.

For individuals

Ask court for time right away

If an opponent in a case is allowed to file documents late, do not wait to ask the court if you can also file late documents. The Supreme Court said you must make that request at the same time the opponent's request is being heard. Otherwise, the court may say you can just explain yourself orally later, which is less effective.

Frequently asked questions

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Can I get permission to file late documents in a Kenyan court if the other side already got permission?+

Yes, but you must ask for that permission at the same time the other side asks. If you wait until after the court grants their request, the court may decide not to help you, as the Supreme Court did here.

What happens if I miss a deadline in a Kenyan Supreme Court case?+

You can ask the court for permission to file late, but the court will decide whether to grant it. If you do not respond to an opponent's request for late filing, and later ask for your own extension, the court might deny it and say you can address the issue through oral arguments instead.

Is the right to fair hearing in Kenya violated if I cannot file written responses?+

Not necessarily. The court can still give you a fair hearing through oral submissions. In this case, the Supreme Court found that allowing oral arguments was enough to remedy any unfairness, even though the party wanted to file written submissions.

How do interested parties protect their rights in Kenyan appeals?+

Interested parties must actively participate at every step. If an opponent applies for an extension of time, file a response and immediately ask for any corresponding extension you may need. Courts will not assume you deserve the same relief if you stay silent and ask later.

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 (2025). Petition (Application) 12 (E014) of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/31/eng@2025-05-23

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