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Case Brief · caselaw.co.ke
Supreme CourtPartially AllowedPetition 12 (E014) of 2022

Barclays Bank of Kenya Limited (Now ABSA Bank Kenya PLC) v Commissioner of Domestic Taxes (Large Taxpayers Office); Kenya Bankers Association (Proposed Interested Party)

Supreme Court of Kenya
7 October 2022
1,092 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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Kenya Bankers Association can join a tax case but cannot add new evidence.

What this practically means

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The Supreme Court of Kenya allowed Kenya Bankers Association to join a tax dispute as an interested party because its bank members would be directly affected by the outcome. However, the court refused its request to submit additional evidence, ruling that the association failed to show how that evidence would change the verdict or clarify any doubts. The case involves whether certain payments are subject to withholding tax. The association must file its response within 14 days, and each side pays its own costs.

Executive summary

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This ruling by the Supreme Court of Kenya (a five-judge bench) partially allowed an application by Kenya Bankers Association (the applicant) in a pending tax petition. The applicant sought joinder as an interested party and leave to adduce additional evidence. The court, applying principles from the Muruatetu and Mumo Matemu cases, found that the applicant had an identifiable stake in the matter because its members in the banking sector would be directly affected by the outcome of the decision on whether certain payments are subject to withholding tax. Accordingly, the prayer for joinder was allowed, and the applicant was directed to file its affidavit within 14 days. However, the court dismissed the prayer to file additional evidence, applying the threshold from the Mohamed Abdi Mahamud case. The court held that the applicant failed to show that the additional evidence would influence or impact the result of the verdict or remove any vagueness or doubt within the case, as the issues were plain. The court also issued a separate corrigendum order correcting an earlier ruling that had erroneously cited rule 18 instead of rule 26 of the Supreme Court Rules, 2020 as the applicable rule for additional evidence. The costs order was that each party bears its own costs.

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 should be joined as an interested party in the petition.
  2. 2.Whether the applicant should be granted leave to adduce additional evidence.

Key legal issues

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01

Whether the applicant met the principles for joinder as an interested party under rule 24 of the Supreme Court Rules, 2020 and the Muruatetu and Mumo Matemu cases.

Holding

The applicant met the principles because its members in the banking sector would be directly affected by the outcome of the decision, giving it an identifiable stake in the matter.

Reasoning

The court considered the applicant's claim that its members would be directly affected by the decision on whether disputed payments are subject to withholding tax. The court found that this constituted an identifiable stake, satisfying the joinder principles from Muruatetu and Mumo Matemu. The respondent's opposition was rejected as the applicant demonstrated a personal interest and potential prejudice.

02

Whether the applicant met the threshold for leave to adduce additional evidence under rule 26 of the Supreme Court Rules, 2020 and the Mohamed Abdi Mahamud case.

Holding

The applicant did not meet the threshold because it failed to show that the additional evidence would influence or impact the result of the verdict or remove any vagueness or doubt within the case.

Reasoning

The court applied the principles from Mohamed Abdi Mahamud, which require that additional evidence must be shown to influence the verdict or remove vagueness or doubt. The court found the issues in the petition were plain and did not require additional evidence beyond the applicant's participation as an interested party. The applicant's failure to demonstrate this led to the dismissal of the prayer.

Legal principles established

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  • To join a case as an interested party, you must show a direct stake in the outcome.
  • A group can join if its members will be personally affected by the court's decision.
  • To add new evidence, you must prove it would influence the verdict or remove doubt.
  • If the issues are already clear, the court will not allow extra evidence.
  • The Supreme Court follows strict rules from past cases like Muruatetu and Mohamed Abdi Mahamud.

Court orders

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  1. 1.The application dated July 5, 2022 and lodged on July 8, 2022 by Kenya Bankers Association for joinder as interested party is allowed.
  2. 2.It shall file its affidavit in response to the petition within 14 days of this order.
  3. 3.Any party that wishes to file a rejoinder to that affidavit may do so within 14 days of service.
  4. 4.Parties shall bear their respective costs.

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 24 of the Supreme Court Act 2011, rule 3(1), (2), (4) and (5) and 24 of the Supreme Court Rules, 2020 and Direction 55(a) of the Supreme Court (General) Practice Directions, 2020

Relief refused

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Leave to file additional evidence

The applicant failed to show that the additional evidence would influence or impact the result of the verdict or remove any vagueness or doubt within the case.

Costs

Parties shall bear their respective costs.

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.

we find that the application conforms to the principles laid out in that the applicant's members who are also in the banking sector shall also be directly affected by the outcome of this decision. This is an identifiable stake in the matter and we so find.
p. 4 Joinder as interested party - identifiable stake
it is our finding that the applicant has not satisfied the threshold set out therein by failing to show that the additional evidence would ,'if given, influence or impact upon the result of the verdict, or removes any vagueness or doubt within the case'.
p. 4 Additional evidence - threshold not met
The application dated July 5, 2022 and lodged on July 8, 2022 by Kenya Bankers Association for joinder as interested party is allowed. It shall file its affidavit in response to the petition within 14 days of this order. Any party that wishes to file a rejoinder to that affidavit may do so within 14 days of service.
p. 4 Final orders - joinder granted
Parties shall bear their respective costs.
p. 4 Costs order

Key timeline

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2022-07-05
Kenya Bankers Association files application to join the tax case and add evidence.
2022-07-08
Application is lodged with the Supreme Court.
Ruling date
Supreme Court partially allows the application: joinder granted, additional evidence denied.
Within 14 days of ruling
Kenya Bankers Association must file its affidavit in response to the petition.

Practical implications

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For lawyers

Joinder strategy for industry groups

When representing an industry association seeking joinder, clearly link how the case outcome directly affects your members' legal or financial interests. Use the Muruatetu and Mumo Matemu principles to show an identifiable stake. For additional evidence, prepare a focused argument demonstrating how the evidence would change the verdict or remove doubt—general claims won't suffice.

For businesses

Industry groups can join tax disputes

If your business is part of an association like Kenya Bankers Association, the association can join a court case that affects your industry. This allows your collective voice to be heard without each company filing separately. However, the court will not automatically accept new evidence—your association must prove it is necessary to clarify the case.

For individuals

Your stake must be clear to join

If you want to join a court case as an interested party, you must show the judge that the decision will directly affect you or your rights. A vague interest is not enough. Also, if you want to add new evidence after the case has started, you must explain exactly how that evidence would change the outcome—otherwise, the court will likely refuse.

Frequently asked questions

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What does it mean to join a case as an interested party in Kenya?+

It means you ask the court to let you participate in a case because you have a direct stake in the outcome. In this ruling, Kenya Bankers Association was allowed to join because its bank members would be affected by the tax decision. You must show a personal interest and potential prejudice.

Can I add new evidence to a Supreme Court case in Kenya?+

Only if you prove the evidence would influence the verdict or remove doubt. In this case, the court refused because the issues were already clear. You must follow strict rules from past cases like Mohamed Abdi Mahamud. Without a strong reason, the court will deny your request.

What is the Muruatetu case and why does it matter for joinder in Kenya?+

The Muruatetu case set principles for joining cases as an interested party in Kenya. You must show an identifiable stake, that you will be directly affected, and that your participation will help the court. This ruling applied those principles to allow Kenya Bankers Association to join a tax dispute.

How long do I have to respond after being joined as an interested party in Kenya?+

The court gave Kenya Bankers Association 14 days to file its affidavit after the ruling. Deadlines can vary by case, but courts often set short timelines. Always check the court order and act quickly to avoid missing the deadline.

Cite this brief

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Cite this brief

Caselaw, "Barclays Bank of Kenya Limited (Now ABSA Bank Kenya PLC) v Commissioner of Domestic Taxes (Large Taxpayers Office); Kenya Bankers Association (Proposed Interested Party)", Case Analysis (2022). Petition 12 (E014) of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/60/eng@2022-10-07

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