Dari Limited & 5 others v East African Development Bank
The bottom line
#Supreme Court dismisses attempts to strike out SBM Bank's response and block evidence in Tuju appeal.
What this practically means
#The Supreme Court has dismissed two applications by Raphael Tuju and others in their appeal against SBM Bank. The Court refused to strike out the bank's replying affidavit, which was filed just 4 hours and 40 minutes late, partly due to issues with the Judiciary's e-filing system. The Court also rejected an attempt to introduce new evidence, calling it an improper 'second bite of the cherry' that was not relevant to the core legal issue of enforcing foreign judgments.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent's replying affidavit sworn by Carol Luwaga on January 31, 2024 should be struck out for being filed out of time and for being incompetent.
- 2.Whether the petitioners should be granted leave to adduce additional evidence, being a further witness statement by David Washington Barnabas Ochieng dated 21st December, 2023.
Key legal issues
#Whether the respondent's replying affidavit should be struck out for being filed out of time.
The court declined to strike out the affidavit, finding that the delay of 4 hours and 40 minutes was minimal and partly attributable to the Judiciary e-filing system, and that the respondent used best efforts under the circumstances.
The Deputy Registrar's directions required the respondent to file and serve a response by 9.00am on February 1, 2024. The respondent filed electronically at 11.02am and served at 11.43am on the same day. The court, exercising its inherent power under rule 3(5) of the Supreme Court Rules, held that the delay was not inordinate and did not warrant the drastic remedy of striking out, especially as no prejudice was demonstrated and the delay was partly due to technical challenges with the e-filing portal.
Whether the respondent's replying affidavit should be struck out for being incompetent due to the deponent's location and lack of notarisation.
The court declined to strike out the affidavit, holding that the petitioners' allegations were bare and unsubstantiated, and that the burden of proof lay on the petitioners to prove their allegations.
The petitioners alleged that Carol Luwaga, a resident of Kampala, Uganda, swore the affidavit in Nairobi before a Commissioner for Oaths without evidence she was in Nairobi, and that her signature was not witnessed by a Ugandan Notary Public. The court applied the trite principle that he who alleges must prove, and found that the petitioners provided no proof to justify their allegations. The court therefore dismissed the application to strike out on this ground.
Whether the petitioners should be granted leave to adduce additional evidence under section 20(2) of the Supreme Court Act.
The court dismissed the application, finding that the petitioners failed to satisfy the principles for admission of additional evidence, particularly that the evidence was not directly relevant to the appeal and the application was an attempt to have a second bite of the cherry.
The petitioners sought to adduce a further witness statement by David Washington Barnabas Ochieng, which they claimed would clarify the history of engagements between the parties and counter averments in the respondent's replying affidavit sworn by Justa Kiragu. The court noted that the appeal concerns the recognition and enforcement of foreign judgments, not the factual history of the Facility Agreement. The court further observed that the petitioners had previously failed to strike out Justa Kiragu's affidavit and were now using this application to circumvent that ruling. Applying the principles in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others, the court found that the evidence was not directly relevant, was not capable of influencing the decision, and the application was an abuse of process.
Legal principles established
#- The Supreme Court has unlimited inherent power under Rule 3(5) of its Rules to vary procedural timeframes for the ends of justice.
- A minimal delay in filing a response, partly attributable to the Judiciary's e-filing system, does not warrant the drastic remedy of striking out.
- A party alleging an affidavit is incompetent must prove their allegations; bare assertions are insufficient.
- Additional evidence on appeal must be directly relevant to the legal issue and capable of influencing the decision.
- An application for additional evidence cannot be used to circumvent an earlier adverse ruling (no 'second bite of the cherry').
Court orders
#- 1.The notice of motion dated and filed on January 26, 2024 is hereby dismissed.
- 2.The notice of motion dated and filed on February 2, 2024 is hereby dismissed.
- 3.Costs of the applications 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 of Kenya
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution of Kenya
Relief refused
#Leave to adduce additional evidence (further witness statement by David Washington Barnabas Ochieng)
The petitioners did not satisfy the principles for admission of additional evidence under section 20(2) of the Supreme Court Act; the evidence was not directly relevant to the appeal and the application was an attempt to have a second bite of the cherry.
Striking out the respondent's replying affidavit sworn by Carol Luwaga on January 31, 2024
The delay in filing was minimal and partly attributable to the Judiciary e-filing system; the allegations of incompetence regarding the affidavit's execution were unsubstantiated bare allegations.
Costs
Costs of the applications 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.
We do not find it appropriate to strike out the respondent's response for being filed 4 hours and 40 minutes after the Court's stipulated time of 9.00am. We are persuaded that the respondent used best efforts under the circumstances with part of the delay being attributable to the Judiciary e -filing system
the petitioners have not explained the relevance of this further witness statement in relation to their appeal. In our view, it is apparent that the petitioners, dissatisfied with our ruling dated November 7, 2023 declining to strike out the respondent's replying affidavit sworn by Justa Kiragu, now seek, rather ingeniously, a second bite of the cherry through this application
Key timeline
#Practical implications
#E-filing delays and procedural strictness
Lawyers should note that the Supreme Court will exercise its inherent power to overlook minimal filing delays, especially those partly caused by the Judiciary's e-filing system. However, this is not a license for laxity. The court emphasized the respondent used 'best efforts'. Practitioners must document technical issues and act promptly to benefit from this leniency.
Enforcing foreign judgments in Kenya
Businesses involved in cross-border disputes should note that the Supreme Court is focused on the core legal principles of recognizing foreign judgments, not peripheral factual disputes. Attempts to derail enforcement by challenging procedural technicalities (like late filings or affidavit formalities) are unlikely to succeed if the opposing party acted reasonably.
Court's patience with technical objections
If you are a party in a case, the court will not automatically penalize the other side for minor procedural delays, especially if the court's own systems contributed. You cannot simply make accusations about documents being invalid without providing solid proof. The court focuses on the substance of the case, not technical tricks.
Frequently asked questions
#What happened in the Raphael Tuju v SBM Bank case at the Supreme Court of Kenya?+
The Supreme Court dismissed two applications by Raphael Tuju. One sought to strike out SBM Bank's response for being filed a few hours late, and the other sought to introduce new evidence. The court found the delay minor and the new evidence irrelevant to the appeal.
Can a court document be struck out for being filed late in Kenya?+
Not automatically. The Supreme Court ruled that a delay of just a few hours, partly caused by the Judiciary's e-filing system, does not warrant striking out. The court has the power to overlook such delays to ensure justice is done, especially if no prejudice is shown.
What does 'second bite of the cherry' mean in Kenyan law?+
It means a party is trying to relitigate an issue they already lost. In this case, the petitioners tried to introduce new evidence to counter an affidavit they had previously failed to have struck out. The Supreme Court rejected this as an improper attempt to have a second chance.
How does the Judiciary e-filing system affect court deadlines in Kenya?+
The Supreme Court acknowledged that technical issues with the e-filing system can cause delays. If a party uses best efforts to file on time but is delayed by the system, the court may excuse the delay and refuse to penalize the party by striking out their documents.
Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- County Government of Kericho v James Finlay (Kenya) Limited (Environment and Land Miscellaneous Application E014 of 2024) [2025] KEELC 7420 (KLR)[2025] KEELC 7420 (KLR)30 Oct 2025
- East African Development Bank v Thousand Palms Beach Hotel Ltd (Civil Appeal E069 of 2021) [2024] KECA 639 (KLR)[2024] KECA 639 (KLR)7 Jun 2024applied
Cite this brief
#Cite this brief
Caselaw, "Dari Limited & 5 others v East African Development Bank", Case Analysis (2024). Petition (Application) E012 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/18/eng@2024-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.