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Supreme CourtDismissedPetition (Application) E005 of 2023

Stanbic Bank Kenya Limited v Santowels Limited

Supreme Court of Kenya
22 September 2023
1,818 words in judgment
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The bottom line

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Supreme Court rejects late bid to add Cabinet Secretary as friend of the court.

What this practically means

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Stanbic Bank tried to bring the Cabinet Secretary for Finance into its Supreme Court appeal as a 'friend of the court' (amicus curiae). The Court said no. The bank waited over four months after the other side filed its response—far past the 7-day deadline. It also failed to show what new legal points the Cabinet Secretary would add that the parties hadn't already covered. The intended amicus didn't even respond to the request. The motion was dismissed with costs.

Executive summary

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This ruling by the Supreme Court of Kenya (Koome CJ, Mwilu DCJ, Ibrahim, Wanjala, and Njoki Ndungu SCJJ) dismissed an application by Stanbic Bank Kenya Limited (the applicant) to have the Cabinet Secretary for Finance and National Treasury admitted as amicus curiae in the main appeal. The appeal, certified by the Court of Appeal under Article 163(4)(b), concerns the interpretation of sections 44 and 52 of the Banking Act, specifically whether interest rate variations require ministerial approval or are subject to freedom of contract. The applicant sought to join the Cabinet Secretary (or Attorney General, used interchangeably) as amicus curiae, arguing the issues affect the entire banking industry. The respondent opposed, contending the motion was late, the issues did not require the Cabinet Secretary's input, and the intended amicus curiae had not applied. The Supreme Court held that the applicant failed to demonstrate that the intended amicus curiae would introduce novel aspects of law not already addressed by the parties, as required by the Mumo Matemo precedent. Additionally, the intended amicus curiae showed no interest in participating, having not filed any response or brief despite service. The court also found the motion was filed after unreasonable delay—over four months after the respondent's response—violating the 7-day requirement under rule 19(4) of the Supreme Court Rules, 2020. The court dismissed the motion with costs to the respondent. The ruling clarifies the strict criteria for admitting amicus curiae in the Supreme Court, emphasizing timeliness, demonstrated need for novel input, and the amicus's own willingness to participate.

Questions the Court framed

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

  1. 1.Whether the motion for admission of the Cabinet Secretary for Finance and National Treasury as amicus curiae meets the criteria under rule 19 of the Supreme Court Rules, 2020.

Key legal issues

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01

Whether the motion for admission of the Cabinet Secretary as amicus curiae was competent and met the criteria under rule 19 of the Supreme Court Rules, 2020.

Holding

The motion was dismissed because the applicant failed to demonstrate that the intended amicus curiae would introduce novel aspects of law not already addressed by the parties, the intended amicus curiae showed no interest in participating, and there was unreasonable delay in filing the motion.

Reasoning

The court noted that rule 19(1) allows any party to request admission of an amicus curiae, but the applicant must show that the amicus would address points of law not already covered and aid in the development of the law. Here, the applicant referred to the Cabinet Secretary and Attorney General interchangeably, did not show they would introduce novel aspects, and the intended amicus curiae did not file any response or brief despite being served. Additionally, the motion was filed over four months after the respondent's response, with no valid explanation for the delay, violating the 7-day requirement under rule 19(4).

02

Whether the respondent could challenge the certification of the appeal as raising issues of general public importance.

Holding

The respondent could not challenge the certification because they did not seek a review of the Court of Appeal's certification order.

Reasoning

The Court of Appeal had certified the appeal as raising issues of general public importance under Article 163(4)(b), specifically regarding the interpretation of sections 44 and 52 of the Banking Act. The respondent did not seek a review of that certification, so they were estopped from arguing that the appeal does not raise matters of public importance.

Legal principles established

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  • A party seeking to admit an amicus curiae must show the amicus will raise new legal points not already argued by the parties.
  • An application to admit an amicus curiae must be filed within 7 days after the other side files its response in the proceedings.
  • Unreasonable delay in filing an amicus application is a valid ground for dismissal, even if the court has discretion.
  • If the Court of Appeal certifies an appeal as raising issues of general public importance, the respondent cannot later challenge that certification without seeking a review.
  • The intended amicus curiae must show willingness to participate; silence or lack of response is grounds to reject the application.

Court orders

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  1. 1.The notice of motion dated July 18, 2023 and filed on July 25, 2023 is hereby dismissed.
  2. 2.The applicant shall bear the costs of the respondent in this Motion.

The bench

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

Martha Karambu Koome
M. K. KoomeCJ
Currently serving
majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
Civil Applic (Sup) No E196 of 2022
Jurisdiction invoked
Article 163(4)(b) of the Constitution

Relief refused

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Leave for the Cabinet Secretary for Finance & National Treasury to be joined as an amicus curiae

The motion did not meet the criteria under rule 19 of the Supreme Court Rules, 2020; the applicant did not demonstrate that the intended amicus curiae would introduce novel aspects; the intended amicus curiae showed no interest; and there was unreasonable delay.

Costs

The applicant shall bear the costs of the respondent in this Motion.

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 has not demonstrated that the intended amicus curiae would be addressing point(s) of law which have not been addressed by the parties to the suit. In other words, that he would introduce novel aspects of the legal issues in question that will aid in the development of the law
p. 5 Criteria for admission of amicus curiae
the motion at hand was lodged after unreasonable delay
p. 6 Timeliness of amicus curiae application
The notice of motion dated July 18, 2023 and filed on July 25, 2023 is hereby dismissed.
p. 6 Final orders
The applicant shall bear the costs of the respondent in this Motion.
p. 6 Costs order

Key timeline

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2023-07-18
Stanbic Bank files notice of motion to admit Cabinet Secretary as amicus curiae.
2023-07-25
Motion filed in the Supreme Court registry.
2023
Supreme Court dismisses motion with costs to the respondent.

Practical implications

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For lawyers

Strict amicus deadlines enforced

File any amicus curiae application within 7 days of the respondent's response. The court rejected a 4-month delay with no explanation. Also, prepare a clear argument showing the proposed amicus will address novel legal issues not covered by the parties. A generic claim of 'public interest' won't suffice. If the amicus doesn't respond to service, the application is weaker.

For businesses

Don't rely on government support

If you're in a high-stakes appeal involving banking regulations, don't assume the government will step in as a friend of the court. The Cabinet Secretary here didn't even respond. You must file any third-party applications quickly and prove they add new legal arguments. Delaying or assuming the court will allow late filings risks dismissal and extra costs.

For individuals

Court certification is binding

If the Court of Appeal certifies your case as involving a matter of general public importance, the other side cannot later argue it doesn't—unless they formally seek a review of that certification. This protects you from having to re-litigate the importance of your case at the Supreme Court stage. Know that certification is a powerful procedural shield.

Frequently asked questions

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What is an amicus curiae in Kenya's Supreme Court?+

An amicus curiae (friend of the court) is a person or organization allowed to give legal arguments in a case they are not a party to. In Kenya, you must apply within 7 days of the other side's response and show the amicus will raise new legal points not already covered by the parties.

Can I bring the government into my Supreme Court case in Kenya?+

Yes, but only if you follow strict rules. You must apply within 7 days of the respondent's response, show the government will add new legal arguments, and the government must agree to participate. The court rejected Stanbic's attempt because it waited 4 months and the Cabinet Secretary didn't respond.

What happens if I miss the 7-day deadline for amicus in Kenya?+

The court can dismiss your application for unreasonable delay. In this case, the Supreme Court rejected a motion filed over 4 months late with no valid explanation. You must act quickly or risk losing the chance to bring in a friend of the court.

Can a respondent challenge a certification of public importance in Kenya?+

Only if they formally seek a review of the certification order. If the Court of Appeal certifies your appeal as raising issues of general public importance, the respondent cannot later argue it doesn't without first asking the court to reconsider that certification.

Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Stanbic Bank Kenya Limited v Santowels Limited", Case Analysis (2023). Petition (Application) E005 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/82/eng@2023-09-22

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