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ELCPartially AllowedEldoret ELCLC Number E062 of 2026· [2026] KEELC 5313 (KLR)

Bior & another v Gaya & 2 others (Environment and Land Case E062 of 2026) [2026] KEELC 5313 (KLR)

Environment and Land Court
29 July 2026
COC.N. Ondieki
3,297 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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An Eldoret court allowed a defendant to cross-examine a plaintiff on only two issues, confirming courts will reject cross-examination requests that amount to fishing expeditions.

What this practically means

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Executive summary

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In this interlocutory ruling, the 1st Defendant sought an order under Order 19 Rules 1, 2 and 9 of the Civil Procedure Rules to cross-examine the 1st Plaintiff on depositions in his affidavit supporting the Plaintiffs' application for a temporary injunction. The 2nd Defendant associated itself with the application; the Plaintiffs opposed it as a generalized fishing expedition pre-empting trial issues. The court, Ondieki J, framed one issue: whether the Applicant had established a bona fide ground warranting the discretionary power under Order 19 Rule 2(1). The court distilled nine principles from a large body of authority: cross-examination of a deponent is not available ex debito justitiae; the application must target specific, relevant statements rather than harass the deponent; necessity and justice must converge; fishing expeditions and mini-trials are impermissible; a sound foundation must be laid; alternative means should be preferred; fraud, mala fides and self-contradiction are traditionally appropriate subjects; scope must be limited to protect the deponent; and caution is needed where the applicant defendant has not yet filed a defence. Applying these principles, the court allowed cross-examination only on two of twelve proposed questions - the locus standi of both Plaintiffs (a cocktail of law and fact properly determined in limine) and the current possession of the suit properties - and rejected the remaining ten as premature merits inquiry, aggravated by the Defendants' failure to file defences. The Application partially succeeded; costs were left to abide the outcome of the main suit.

Key legal issues

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01

Whether the 1st Defendant established bona fide grounds for cross-examination of the 1st Plaintiff under Order 19 Rule 2(1)

Holding

Partially: only the questions on locus standi and current possession qualified

Reasoning

The court distilled nine principles: the power is discretionary; the application must seek to test specific relevant statements rather than harass the deponent; necessity and justice must converge; fishing expeditions and mini-trials are impermissible; a sound foundation must be laid; alternative means should be preferred; appropriate subjects include fraud, mala fides and self-contradiction; scope should be limited to avoid prejudice; and care is needed where the defendant has not filed a defence. Applying these, only two of twelve questions qualified.

p. 7
02

Nature of locus standi as a preliminary question

Holding

It is an integral component of jurisdiction and may properly be disposed of at the preliminary stage

Reasoning

The court held that locus standi questions, like jurisdiction, should be determined in limine. Citing Order 2 Rule 15(1)(a)-(c), Order 4 Rule 4, Order 7 Rule 6 and Order 8 Rule 3(4) of the CPR, it found the locus standi question here - a cocktail of law and facts - suitable for disposal at the preliminary stage via cross-examination.

p. 7

Legal principles established

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  • An applicant under Order 19 Rule 2(1) is not entitled to cross-examination ex debito justitiae; the power is discretionary and turns on a bona fide ground
  • Cross-examination should be granted only where necessity and justice converge, and not where it amounts to a fishing expedition or mini-trial
  • Questions of locus standi go to jurisdiction and should be determined in limine, even where they are a cocktail of law and fact

Court orders

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  1. 1.The Application is found partially successful limited in scope to the proposed questions on (a) locus standi of both Plaintiffs and (b) the current possession of the suit properties
  2. 2.The Court orders the attendance for cross-examination of the 1st Plaintiff, on a date to be fixed by the Court, limited in scope to the questions on locus standi of both Plaintiffs and current possession of the suit properties
  3. 3.Summons do issue to the 1st Plaintiff, to be served by the Advocate representing the Plaintiffs
  4. 4.The costs of the Application shall abide the outcome of the main suit
Jurisdiction invoked
Order 19 Rules 1, 2 and 9 of the Civil Procedure Rules; Article 159(2)(d) of the Constitution

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, "Bior & another v Gaya & 2 others (Environment and Land Case E062 of 2026) [2026] KEELC 5313 (KLR)", Case Analysis (2026). Eldoret ELCLC Number E062 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5313/eng@2026-07-29

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