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ELCDismissedNot stated in the judgment· [2026] KEELC 4593 (KLR)

Rivalene Limited & 5 others v KCB Bank Kenya Ltd & 2 others (Environment and Land Case E283 of 2021) [2026] KEELC 4593 (KLR)

Environment and Land Court
20 July 2026
3,067 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The 2nd and 3rd Defendants/Applicants moved the court by Notice of Motion dated 15th April 2026 seeking the striking out of the witness statement of David Gatende dated 27th January 2025, or alternatively leave to file a further witness statement and additional documents, on the basis that the statement had been sprung on them at the hearing of 4th February 2026 without service, amounting to trial by ambush. The Plaintiffs opposed, asserting valid electronic service on 28th January 2025 on the Defendants' then advocates, M.M. Gitonga & Co. Advocates, and contending that the Defendants had cross-examined Gatende fully on the statement without objection, and that the application was a ploy to fill evidentiary gaps. They also challenged the competence of the application because Sarah Gikonyo & Associates had no notice of change of advocates on record when filing it. The court framed two issues: whether the new firm was properly on record, and whether the statement should be struck out or leave for further evidence granted. On the first, the court held that the late filing of the notice of change was cured under Article 159(2)(d) with no prejudice shown. On the second, the court found service was proved by email and that the Defendants, having cross-examined the witness without objection, acquiesced to the statement's admission. Applying the Supreme Court's criteria in Attorney General v Zinj Limited, the court declined leave for further evidence, finding none disclosed, no due diligence shown, and that granting it would reopen the Plaintiffs' case. The Motion was dismissed with costs.

Key legal issues

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01

Whether the firm of Sarah Gikonyo & Associates Advocates was properly on record

Holding

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

Reasoning

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.

p. 4
02

Whether the witness statement of David Gatende dated 27th January 2025 should be struck out

Holding

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

Reasoning

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.

p. 5
03

Whether leave should issue for a further witness statement and additional documents

Holding

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

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 15th April, 2026 is dismissed
  2. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.