Rivalene Limited & 5 others v KCB Bank Kenya Ltd & 2 others (Environment and Land Case E283 of 2021) [2026] KEELC 4593 (KLR)
The bottom line
#A Kenyan court dismissed an attempt to strike out a witness statement, ruling that parties who cross-examine a witness without objection cannot later claim ambush.
What this practically means
#Executive summary
#Key legal issues
#Whether the firm of Sarah Gikonyo & Associates Advocates was properly on record
Yes. Although the notice of change of advocates was filed late (26th June 2026), Article 159(2)(d) cured the technicality and no prejudice was demonstrated
Order 9 Rule 5 permits change of advocates without leave, but the change takes effect only upon filing and service of the notice under Order 9 Rule 6. The notice here was filed after the application, but the court invoked Article 159(2)(d) to disregard the technicality, finding the subsequent filing regularized representation and that the Plaintiffs suffered no prejudice.
Whether the witness statement of David Gatende dated 27th January 2025 should be struck out
No. It was transmitted by email to the Defendants' then advocates on 28th January 2025 and the Defendants cross-examined the witness on it without objection, thereby acquiescing to its admission
Email correspondence evidenced service on 28th January 2025. At the hearing on 4th February 2026 the witness adopted the statement and was extensively cross-examined; defence counsel never objected, sought expulsion of the statement, or applied for an adjournment. The ambush complaint was therefore without merit.
Whether leave should issue for a further witness statement and additional documents
No. The Defendants neither disclosed nor annexed the proposed evidence, showed no due diligence, and the relief would reopen the Plaintiffs' case after cross-examination
Applying the Supreme Court's criteria in Attorney General v Zinj Limited and the Kanyarkwat caution against filing evidence in instalments, the court found the Defendants' application was aimed at responding to, and filling gaps exposed by, the Plaintiffs' evidence after the close of their case, which the law does not permit.
Legal principles established
#- A change of advocates takes effect only upon filing and service of a notice of change; until then the former advocate remains advocate on record
- A party who participates in a hearing and cross-examines a witness on a witness statement without objection cannot later seek its expungement on grounds of non-service
- Additional evidence after the close of a party's case must satisfy the Zinj criteria, including that it could not have been obtained with reasonable diligence and is not aimed at filling gaps
Court orders
#- 1.The Notice of Motion dated 15th April, 2026 is dismissed
- 2.The Defendants/Applicants shall pay the costs of the application
- Jurisdiction invoked
- Original jurisdiction under the Environment and Land Court Act and Civil Procedure Act (Sections 1A, 1B and 3A invoked in the Motion)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rivalene Limited & 5 others v KCB Bank Kenya Ltd & 2 others (Environment and Land Case E283 of 2021) [2026] KEELC 4593 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4593/eng@2026-07-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.