https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4593

Rivalene Limited & 5 others v KCB Bank Kenya Ltd & 2 others (Environment and Land Case E283 of 2021) [2026] KEELC 4593 (KLR) (20 July 2026) (Ruling) Neutral citation: [2026] KEELC 4593 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case E283 of 2021 OA Angote, J July 20, 2026 Between Rivalene Limited 1st Plaintiff Asir Holdings Limited 2nd Plaintiff Shabana Ahamed 3rd Plaintiff Plumbing Systems Limited 4th Plaintiff Catherine Onyoni-Mogaka 5th Plaintiff Vibranium Limited 6th Plaintiff and Kcb Bank Kenya Limited 1st Defendant Ringsview Apartments Ltd 2nd Defendant Mbira Gikonyo 3rd Defendant Ruling Background 1.Before this court for determination is the 2nd and 3rd Defendants’/Applicants’ Notice of Motion application dated 15th April, 2026 brought pursuant to the provisions of Sections 1A, 1B, 3A of the Civil Procedure Act, Order 3 Rule 2 of the Civil Procedure Rules and Rule 35 of the Employment and Labour Relations Court (Procedure) Rules, 2024 seeking the following reliefs:i.Spent.ii.That the Witness statement sworn by David Gatende and dated the 27th January, 2025 be struck out from the record.iii.That in the alternative, that this Honourable Court be pleased to grant the 2nd Defendant and 3rd Defendant/1st and 2nd Applicants leave to file and serve a further witness statement and/or further list of documents in response to and to counter the contents of the said witness statement.iv.That the costs of this application be provided for. 2.The Motion is supported by the affidavit of Dr. Benjamin Mbira Gikonyo, the 3rd Defendant herein and the Director for the 2nd Defendant, who deponed that he is aware that the 2nd Plaintiff filed a witness statement sworn by one David Gatende dated 27th January 2025. According to him, the said witness statement was first introduced during the hearing on 4th February, 2026. This, he asserted, amounted to trial by ambush, was procedurally irregular, and offended the principles of natural justice and procedural fairness. 3.He asserted that the failure to effect service upon him denied him the opportunity to adequately prepare for the hearing and to respond to, or challenge the contents of the said witness statement. He also explained that he has since changed legal representation from the firm of M. M. Gitonga Advocates to the firm of Sarah Gikonyo & Associates Advocates. 4.According to Mr Gikonyo, the continued reliance on the said witness statement will occasion serious prejudice to his case and that as advised by counsel, the same ought to be struck out or in the alternative, he should be granted leave to file and serve a further witness statement and/or a further list of documents to effectively respond to and controvert the contents thereof. 5.In response to the Motion, Mr David Gatende swore a replying affidavit dated 7th May, 2026. He deponed that he is director of Asir Holdings Limited, the 2nd Plaintiff herein, and is the witness who swore the witness statement dated 27th January 2025 filed in support of the Plaintiffs' case. 6.He deponed at the outset that Sarah Ġikonyo &. Associates Advocates, who have drawn and filed the present Motion are not properly on record for the 2nd and 3rd Defendants/Applicants in this matter; that the said Defendants were at all material times represented by M.M. Gitonga & Co. Advocates, who remain the advocates on record and that no notice of change of advocates has been filed or served upon the Plaintiffs' advocates in accordance with the requirements of Order 9 Rule 5 of the Civil Procedure Rules 2010. As a consequence, and as advised by counsel, the supporting affidavit sworn by Dr. Benjamin Mbira Gikonyo is fatally defective. 7.According to Mr Gatende, this application is not a genuine grievance about service of the witness statement but is rather a calculated and mischievous attempt by the 2nd and 3rd Defendants to introduce further evidence into the proceedings under the guise of seeking leave to file a further witness statement and that having been fully cross-examined, his evidence is now complete. 8.It is his position that the 2nd and 3rd Defendants, having realized that his evidence is detrimental to their case, are now attempting to circumvent the proper legal process by introducing additional material through the back door. He contends that, if permitted, this will enable them to fill evidentiary gaps and bolster an otherwise weak defence, while denying the Plaintiffs any meaningful opportunity to challenge or respond to the new factual assertions through cross-examination or otherwise. Such a course, he argues, would occasion a grave miscarriage of justice. 9.He therefore urged the court to see through what he described as a deliberate stratagem to strengthen the Defendants' case after they have already been afforded a full and fair opportunity to cross-examine the Plaintiffs' witness. He maintained that granting the orders sought will be fundamentally prejudicial to the Plaintiffs, offend the rules of natural justice and violate the Plaintiffs' fundamental right to a fair hearing. Submissions 10.The 2nd and 3rd Defendants/Applicants filed their written submissions dated 22nd June, 2026. Counsel submitted that the impugned witness statement ought to be struck out as it had been filed without leave of the court, contrary to Order 11 of the Civil Procedure Rules, which requires parties to file and exchange witness statements during the pre-trial stage. 11.It was submitted that the Plaintiffs neither sought leave nor offered any explanation for the late filing of the witness statement, rendering its introduction procedurally irregular and contrary to the Civil Procedure Rules. 12.Counsel maintained that although the Plaintiffs contend that the impugned witness statement had been transmitted to the 2nd and 3rd Defendants’ previous advocates on or about 28th January, 2025, such transmission cannot not cure the fundamental procedural defect arising from its filing without leave of the court. In support of that position, counsel relied on Alois Oceano D'sumba vs Rajnikant Narshi Shah & another [2017] eKLR. Also invoked was Section 3A of the Civil Procedure Act. 13.On the issue of prejudice, counsel submitted that the continued reliance on the impugned witness statement will place the 2nd and 3rd Defendants at a significant procedural disadvantage, as they had not been afforded an opportunity to prepare a responsive witness statement addressing the matters introduced therein. This contravened right to a fair hearing guaranteed under Article 50(1) of the Constitution. 14.Counsel submitted that if the court declines to strike out the impugned witness statement, the 2nd and 3rd Defendants should be granted leave to file a further witness statement together with additional documents to respond to the new matters raised. The court’s power in this regard, it was noted is wide and discretionary as set out under Sections 1A, 1B and 3A of the Civil Procedure Act. Counsel also relied on Article 159(2)(d) of the Constitution. 15.The Plaintiffs, through their counsel, filed submissions dated 14th May, 2025. Counsel submitted that the application is incompetent, having been filed by the firm of Sarah Gikonyo & Associates Advocates, which was not properly on record for the 2nd and 3rd Defendants. Counsel argued that M.M. Gitonga & Co. Advocates remained the advocates on record, no notice of change of advocates having been filed or served as required under Order 9 Rule 5 of the Civil Procedure Rules, 2010. 16.This defect, it was submitted, is substantive rather than procedural, as it created uncertainty regarding the proper advocates for service and conduct of the proceedings. 17.Counsel further submitted that the allegation by the 3rd Defendant, that neither he nor the 2nd Defendant had been served with the witness statement of David Gatende prior to the hearing on 4th February, 2026 was demonstrably false. 18.It was argued that the witness statement dated 27th January, 2025 was transmitted electronically on 28th January, 2025 to M.M. Gitonga & Co. Advocates, the advocates then on record for the 2nd and 3rd Defendants, at their official email address with evidence annexed to the Mr Gatende’s replying affidavit and constituted valid service under Order 5 Rule 22A of the Civil Procedure Rules. 19.Counsel further argued that the allegation of non-service was contradicted by the Defendants' own conduct during the hearing wherein the 3rd Defendant had personally attended court, while counsel holding brief for M.M. Gitonga & Co. Advocates had appeared on his behalf and proceeded to conduct an extensive cross-examination of David Gatende based on the contents of the impugned witness statement. 20.Counsel submitted that even assuming there had been any defect in service, which was expressly denied, the Defendants had waived any right to object by fully participating in the hearing without raising the issue at the earliest opportunity, and that the Defendants voluntarily proceeded with cross-examination on the merits of the witness statement. 21.It was urged that the application seeks to fill evidentiary gaps identified during the hearing. In support of this position, Counsel relied on Ngare vs Goodlife Pharmacy Limited (Cause 557 of 2019) [2025] KEELRC 3634 (KLR), which adopted the reasoning in Raindrops Limited vs County Government of Kilifi [2020] KEHC 1478 (KLR), that interlocutory applications should not be used to reopen or supplement evidence after the close of a party's case. 22.Counsel urged that it would neither be just nor equitable to grant the Defendants leave to file additional evidence as the Plaintiffs' witness had already been cross-examined and his evidence was closed; that permitting the Defendants to file a further witness statement would introduce new factual assertions to which the Plaintiffs' witness, David Gatende, would have no opportunity to comment, clarify, or respond, thereby causing fundamental prejudice to the Plaintiffs and that the Motion constitutes an abuse of the court process and should be dismissed with costs. Analysis & Determination 23.Having considered the Motion, affidavits and submissions by the parties, the issues that arise for determination are:i.Whether the firm of Sarah Gikonyo & Associates Advocates is properly on record for the 2nd and 3rd Defendants/Applicants?ii.Whether the witness statement dated 27th January, 2025 should be struck out and/or the Defendants granted leave to file additional documents? 24.At the onset, the Plaintiffs impugn the legitimacy of the present Motion alleging that the firm of Sarah Gikonyo & Associates Advocates is not properly on record rendering the Motion fatally defective. No substantive response was made to this assertion. 25.The law on change of advocates is clear. Order 9 Rule 5 of the Civil Procedure Rules provides that a party suing or defending through an advocate is at liberty to change advocates without leave of the court. However, the change only takes effect upon the filing of a notice of change of advocates in the court where the matter is pending and service thereof upon the other parties in accordance with Order 9 Rule 6. 26.Until such notice is duly filed and served, the former advocate remains the advocate on record for all purposes until the final determination of the suit, including any review. 27.The court has considered the record. The firm of Sarah Gikonyo & Associates Advocates filed a notice of change of advocates dated 16th February, 2026. The court’s court tracking system (CTS) however shows that the notice was filed on 26th June, 2026. Indeed, this was well after the filing of the present application. The 2nd and 3rd Defendants did not offer any explanation for this procedural lapse. 28.Be that as it may, Article 159(2)(d) of the Constitution enjoins this court to administer justice without undue regard to procedural technicalities. The subsequent filing of the notice of change of advocates regularized the position regarding representation, and the Plaintiffs have not demonstrated any prejudice suffered as a result of the delayed filing. Consequently, the court declines to strike out the application on that ground alone and finds that the firm of Sarah Gikonyo & Associates Advocates is properly on record for the 2nd and 3rd Defendants/ Applicants. 29.The 2nd and 3rd Defendants seek to have the witness statement dated 27th January, 2025 struck out. The gravamen of their complaint is that the impugned witness statement was never served upon them prior to the hearing and that its production during the hearing amounted to trial by ambush. In the alternative, they seek to be granted leave to file a further witness statement and additional documents. 30.In response, the Plaintiffs state that they duly served the statement upon the Defendants on 28th January, 2026. They have adduced email correspondence of this fact. They contend that the Motion constitutes an attempt by the Defendants to fill in the gaps in their evidence after the evidence by the Plaintiffs. 31.To begin with, the evidence on record demonstrates that the witness statement was transmitted by email on 28th January, 2025 to the Defendants' then advocates on record, M.M. Gitonga & Co. Advocates. Indeed, the Plaintiffs have exhibited the relevant email correspondence in support of that assertion. 32.More importantly, the record shows that when the matter came up for hearing on 4th February, 2026, Mr David Gatende, adopted his witness statement dated 27th January, 2025 as his evidence-in-chief and was thereafter extensively cross-examined by counsel appearing for the Defendants. At no stage during the proceedings did counsel object to the production or adoption of the witness statement, challenge its alleged non-service, seek its expulsion from the record, or apply for an adjournment to enable the Defendants respond to it. 33.Having fully participated in the hearing and cross-examined the witness on the impugned statement, the Defendants cannot now contend that they were ambushed by its admission. By proceeding without objection, they acquiesced to its production and cannot subsequently seek to have it expunged from the record. In the circumstances, the objection is without merit. 34.As regards the Defendants' request for leave to file a further witness statement and additional documents after the close of the Plaintiffs' case, the applicable principles governing the admission of further evidence were set out by the Apex Court in Attorney General vs Zinj Limited [2021] eKLR as follows:“a)the additional evidence must be directly relevant to the matter before the court and be in the interest of justice;b)it must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive;c)it is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;d)where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit;e)the evidence must be credible in the sense that it is capable of belief;f)the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;g)whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process;h)where the additional evidence discloses a strong prima facie case of willful deception of the Court;i)The Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The Court must find the further evidence needful;j)a party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case;k)the Court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other” 35.In the case of Kanyarkwat Group Ranch & 4 Others vs Joseph & 3 Others [2022] KEELC 15037 (KLR) the court, speaking on the practice of parties exchanging documents in piecemeal and seeking leaking leave to file additional documents noted as follows:“Such practice not only occasions injustice to the other parties in the case but defeats the whole overriding objective of the law, of both Section 3(1) and (2) of the ELC Act and Section 1A (1) and (2) of the Civil Procedure Act , of just, expeditious, proportionate and efficient resolution of disputes, and Article 159(2)(b) of the Constitution that justice shall not be delayed. The law does not envisage such a situation. The practice ought to stop. Courts not to encourage this practice. A party has to show that he could not, with all due diligence, access the evidence at the time of filing the suit or his Defence or Counterclaim. To file witness statements in ‘instalments’ is nothing but a travesty of justice and a practice of unleashing secret weapons when met with strong cases or keeping cards under the table for mischievous ends other than those of justice. A party should endeavor by all means to present his case or evidence at once. Absent of that, the burden is higher for him to satisfy the Court why he did not avail the evidence at the first time he presented his case before the Court.” 36.In the present circumstances, beyond the general assertion that they wish to respond to the impugned witness statement, the 2nd and 3rd Defendants have neither disclosed the nature of the further evidence they intend to adduce nor annexed the proposed witness statement or additional documents. 37.The court is therefore left to speculate on the relevance, necessity and materiality of the proposed evidence. Equally absent is any demonstration that such evidence was unavailable despite the exercise of reasonable diligence before the hearing commenced. 38.More importantly, the chronology of events does not support the Defendants’ contention that they were denied a fair opportunity to present their case. The Plaintiffs' witness has already testified, adopted his witness statement, and was fully cross-examined by the Defendants. The relief sought would inevitably reopen the Plaintiffs' case and afford the Defendants an opportunity to introduce fresh evidence after evaluating the Plaintiffs' case, a course that would be inconsistent with the principles articulated by the Supreme Court in Attorney General vs Zinj Limited [2021] eKLR. 39.In the premises, the court finds the Notice of Motion dated 15th April, 2026 to be unmerited. The same is dismissed with costs. DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 20TH DAY OF JULY, 2026.O. A. ANGOTEJUDGEIn the presence of;Mr. Nderi for 2nd and 3rd Defendants/ApplicantsMr. Anyona for PlaintiffsMs Njeri for Ms Cheruiyot for 1st DefendantCourt Assistant: Tracy