https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5313

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ELDORET** ***(Coram: C.N. Ondieki, J.)*** **ELCLC NUMBER E062 OF 2026** **BETWEEN** **GABRIEL DENG BIOR.………………………..…..1ST PLAINTIFF/RESPONDENT** **AYEN KON DENG MANUAL……………………..2ND PLAINTIFF/RESPONDENT** **AND** **DR. ZEPHANIA GAYA………....….….………….1ST DEFENDANT/APPLICANT** **BENARD HINGA KIIRU………………….……………..……….….2ND DEFENDANT** **CHIEF LAND REGISTRAR………………………………………….3RD DEFENDANT** **RULING** **PART I: THE PLAINTIFF’S CASE** 1. Vide a Plaint dated 19th June 2026 and filed on 26th June 2026, the Plaintiffs brought this action against the Defendants primarily seeking Judgment for a **declaration that the 2nd Plaintiff is the legal, lawful purchaser and beneficial owner of the parcels of land known as Eldoret Municipality Block 14/347 and Eldoret Municipality Block 14/1333 (hereinafter “the suit properties”) by virtue of a Sale Agreement dated 20th September 2006; an order of specific performance; a declaration that the Certificate of Lease for 50 years which was issued on 1st January 2011 is illegal, null and void *ab initio*; an order that the 3rd Defendant cancels the certificate and rectifies the register to reflect the 2nd Plaintiff as the proprietor thereof; a permanent injunction against the 1st and 2nd Defendants; general damages for trespass, fraud and breach of contract; and costs of the suit.** 2. Concomitantly, the Plaintiffs filed a Notice of Motion of even date, seeking a temporary injunction, pending hearing and determination of this suit. **PART II: THE 1ST DEFENDANT/APPLICANT’S CASE** 1. In response, the 1st Defendant, through learned Counsel Mr. C.F. Otieno instructed by the Firm of Messieurs C.F. Otieno & Company Advocates, filed a Replying Affidavit dated 18th July 2026; and a Notice to Cross-Examine the 1st Plaintiff dated 23rd July 2026. 2. Invoking Article 159(2)(d) of the Constitution, this Court deemed the said Notice to Cross-Examine the 1st Plaintiff in respect to the depositions in the Affidavit in support of the said Plaintiffs’ Motion dated 19th June 2026, as the Application contemplated under Order 19 Rule 2 of the Civil Procedure Rules (hereinafter “the CPR”). 3. The said Application is predicated under Order 19 Rules 1, 2 and 9 of the CPR. The Application seeks to cross-examine the 1st Plaintiff in respect to paragraphs 1, 5, 6-8, 10, 13-15, 18, 20, 26, 28, to 30, 37, 39, 42, and 43, touching on the following issues and I quote: ***“(i) Locus standi of both the Plaintiffs; (ii) Specific terms of the Agreement dated 20.09. 2006 including completion date; (iii) Possession; (iv) Relationship that existed between the Plaintiffs and late Cyrus Jirongo; (v) The request for additional funding in relation to the sale of 2006; (vi) Connection of late General Bior with the sale agreement and his relationship with the late Cyrus Jirongo; (vii) Status of completion documents allegedly surrendered to the law firm Kutto & Kiara Nabasenga Advocates in relations to land parcel 347 & 1333; (viii) Who processed the transfer of Lease for parcel 346 to the 2nd Plaintiff and why the name differs from the names in the sale agreement of 20.09. 2006; (ix) Who was the actual property owner between late Cyrus Jirongo and Ayen Kon Elizabeth; (x) Was Jirongo the Agent or actual owner of the suit lands; (xi) Why was Ayen Kon Elizabeth described as a nominee by the late Cyrus Jirongo; and (xii) Who is Ayen Kon Deng Malual the 2nd Plaintiff and where is she currently.”*** **PART III: THE 2ND DEFENDANT’S CASE** 1. The 2nd Defendant, through learned Counsel Mr. Oduor instructed by the Firm of Messieurs Oduor, Munyua & Gerald Attorneys at Law LLP, fully associated with and adopted the Application and submissions of learned counsel representing the 1st Defendant. **PART IV: THE 3RD DEFENDANT’S CASE** 1. The 3rd Defendant is yet to enter appearance. **PART V: THE PLAINTIFFS/RESPONDENTS ORAL RESPONSE AND SUBMISSIONS** 1. In his oral response and submissions, the Plaintiffs through learned Counsel Mr. Ajak instructed by the Firm of Messieurs Oraro & Company Advocates stated **first,** that the Applicant seeks to cross-examine the 1st Plaintiff in relation to issues which are appropriate for cross-examination in trial of the main suit trial. Second, Mr. Ajak submits that the grounds underpinning the Application are generalized. Third, Mr. Ajak expresses a view that questions of locus standi are only appropriate in cross-examination in the main trial and not within the Plaintiffs’ Motion. Fourth, Mr. Ajak thus concludes that this Application is out on a fishing expedition to pre-empt trial issues at the interlocutory stage. 2. In fortifying oral his submissions, Mr. Ajak placed reliance upon **G G-R vs. H-P S [2012] KEHC 5208 (KLR);** and **Invesco Assrance Co. Ltd vs. Commissioner of Insurance & others [2016] KEHC 4750 (KLR).** **PART VI: QUESTION FOR DETERMINATION** 1. Having considered the Application and the response thereto and the respective oral submissions by learned Counsel representing the rival sides, and having further subjected them to the applicable law, this Court has framed only one principal issue for determination: **whether the Applicant has established even a single *bona fide* ground to warrant the exercise of this Court's discretionary power under Order 19 Rule 2(1) of the CPR, to order the attendance for cross-examination, the 1st Plaintiff, in respect to depositions made in his Affidavit in support of the said Plaintiffs’ Motion dated 19th July 2026.** **PART VII: ANALYSIS AND DETERMINATION** 1. Foremost, desirous of an edifying contextualization of the analysis hereinafter, I wish to discuss the general legal principles which have been enunciated to govern such Applications. 2. **First,** in such Applications, an Applicant is not entitled to an order of the Court requiring production of the deponent for cross-examination *ex debito justitiae.* Instead, Order 19 Rule 2(1) of the CPR, the Court is reposed with unfettered discretionary power in determining whether to allow or disallow the Application, of course turning on the fulcrum of whether **the Applicant has established even a single *bona fide* ground to warrant the exercise of this Court's discretionary power of the Court under Order 19 Rule 2(1) of the CPR, to order the attendance for cross-examination of the deponent.** It’s instructive to point out that the said unfettered discretionary power is gesticulated by the carefully selected words under Order 19 Rule 2(1) of the CPR which provides that **“Upon any Application, evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent.”** Turning to the principles which govern exercise of discretionary power of the Court: 1. **First,** Discretion as been described variously as a science, not to act arbitrarily according to men’s will and private affection but according to rules of law and equity. See **Rooke’s case, 5 Rep. 99b (1598),** cited in approval by **Mativo, J. in Republic vs. Public Procurement Administrative Review Board & 2 others (2018) eKLR,** where the Court attempted to elaborate the tenor of discretion as follows: **“Discretion is a science, not to act arbitrarily according to men’s will and private affection: so the discretion which is exercised here, is to be governed by rules of law and equity, which are to oppose, but each, in its turn, to be subservient to the other. This discretion, in some cases follows the law implicitly, in others or allays the rigour of it, but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this nor any other Court, not even the highest, acting in a judicial capacity is by the Constitution entrusted with.”** In this connection, it should thus be exercised judiciously. See the Court of Appeal rendition in **Christopher Kiprotich vs. Daniel Gathua & 5 others (1976) eKLR; Pithon Waweru Maina vs. Thuka Mugiria (1983) eKLR; Patel vs. EA Cargo Handling Services Ltd [1974] EA 75; Shah vs. Mbogo & another [1967] 1 EA 116; Mbogo and another vs. Shah (1968) 1 EA 93;** **G G-R vs. H-P S [2012] KEHC 5208 (KLR); APA Insurance Limited vs. Jennifer Adoyo Oremo [2016] KEHC 1347 (KLR), Invesco Assurance Co. Ltd vs. Commissioner of Insurance & others [2016] KEHC 4750 (KLR),** *et alia.* 2. **Second,** although discretion is unfettered so as to facilitate justice. See **Patel vs. E.A. Cargo Handling Services Ltd (1974) EA 75,** where **Duffus, V.P.** (as he then was) reasoned that **“The main concern of the Court is to do justice to the parties and the Court will not impose conditions on itself to fetter the wide discretion given to it by the rules.”** See also **Baraka Apparel EPZ (K) Ltd** **vs.** **Rose Mbula Ojwang** **T/A Faida** **2002 Caterers (2007) eKLR; Esther Wamaitha Njihia & 2 others vs. Safaricom Ltd (2014) eKLR; Branco Arabe Espanol vs. Bank of Uganda (1999) 2 EA 22; Joseph Njuguna Thairu vs. City Council of Nairobi (2015) eKLR; Sharp vs. Wakefield (1891) 64 L.T Rep. 180 Ap. Ca.173; Kenya Commercial Bank Ltd vs. Nyantange & Another (1990) KLR 443;** **Richard Ncharpi Leiyangu vs. Independent Electoral Boundaries Commission & 2 Others (2013) eKLR; CMC Holdings Ltd vs. James Mumo Nzioka (2014) eKLR; Baraka Apparel EPZ (K) Ltd** **vs.** **Rose Mbula Ojwang** **T/A Faida** **2002 Caterers (2007) eKLR; G G-R vs. H-P S [2012] KEHC 5208 (KLR); APA Insurance Limited vs. Jennifer Adoyo Oremo [2016] KEHC 1347 (KLR), Invesco Assurance Co. Ltd vs. Commissioner of Insurance & others [2016] KEHC 4750 (KLR),** *et alia.* 3. **Third,** when confronted with such Applications, it should always be borne in mind that discretionary power is a double-edged sword which should always be flexed leaning in the direction of avoiding injustice which would otherwise result if the Application is either allowed or disallowed. See *inter alia* **Shah vs. Mbogo & another [1967] 1 EA 116** and its Court of Appeal rendition in **Mbogo and another vs. Shah (1968) 1 EA 93; G G-R vs. H-P S [2012] KEHC 5208 (KLR); APA Insurance Limited vs. Jennifer Adoyo Oremo [2016] KEHC 1347 (KLR), Invesco Assurance Co. Ltd vs. Commissioner of Insurance & others [2016] KEHC 4750 (KLR),** *et alia.* 3. **Second,** the Application must be underpinned by a *bona fide* desire to test the veracity of specific, relevant statements rather than harass the deponent. 4. **Third,** in exercising the said discretionary power, the Court is obligated to strike a delicate balance of interests of justice against the risk of prejudicing the fair hearing of the main suit. **In striking this balance, the Application should be granted only in circumstances where necessity and justice converge.** See the rendition of the Court of Appeal in **Provincial Insurance Co. of East Africa Ltd v Mordekai Mwanga Nandwa [1995-1998] 2 EA 289**; **G G-R vs. H-P S [2012] KEHC 5208 (KLR); APA Insurance Limited vs. Jennifer Adoyo Oremo [2016] KEHC 1347 (KLR), Invesco Assurance Co. Ltd vs. Commissioner of Insurance & others [2016] KEHC 4750 (KLR),** *et alia.* 5. **Fourth,** the Application should not be granted if the effect of cross-examination is ingenuously fashioned to be a fishing expedition, a mini-trial and where it will turn the interlocutory Application into a full-blown pre-mature hearing of the main suit. See **Provincial Insurance Co. of East Africa Ltd v Mordekai Mwanga Nandwa [1995-1998] 2 EA 289**; **G G-R vs. H-P S [2012] KEHC 5208 (KLR); APA Insurance Limited vs. Jennifer Adoyo Oremo [2016] KEHC 1347 (KLR), Invesco Assurance Co. Ltd vs. Commissioner of Insurance & others [2016] KEHC 4750 (KLR); Kulati vs. Music Copyright Society of Ltd & 4 others (Cause E113 of 2022) [2026] KEELRC 1558 (KLR) (9 June 2026) (Ruling),** *et alia.* It is a settled principle which governs interlocutory Applications thatit should be handled in a manner that does not pre-empt or prejudice the principal question for determination, guided by the settled cautionary principle that whenever an Application for interlocutory relief is under consideration, adispositive posture or question whose sum effect is to conclusively and finally determine either the main suit or the principal question at the interlocutory stage is impermissible. 6. **Fifth,** granted the position that under 19 Rule 1 of the CPR that **Affidavit evidence is legally recognized as one of the forms of evidence in both main suits and in all interlocutory Applications coupled with the limited judicial time to dispose suits,** the Applicant is obligated to lay a sound foundation to justify exercise of discretionary power in his favour and in this context, the Court should not readily allow the Application to the detriment of the wider interests of administration of justice. In this vein, the Application should only be granted in instances where the Court is satisfied that the cross-examination is essential in enhancing the course of justice. See the persuasive rendition in **Ahmednasir Abdikadir & Co. Advocates vs. National Bank of Kenya Limtied (2) [2006] 2 EA 6**; **Lawson and Anor vs. Odhams Press Ltd. and Anor. (1948) 2 All ER 717; G G-R vs. H-P S [2012] KEHC 5208 (KLR); APA Insurance Limited vs. Jennifer Adoyo Oremo [2016] KEHC 1347 (KLR), Invesco Assrance Co. Ltd vs. Commissioner of Insurance & others [2016] KEHC 4750 (KLR),** *et alia.* 7. **Sixth,** if the fact in contention – sometimes including a self-contradictory or wrong statement of fact deposed in an affidavit which renders the statement worthless including statements which amount to perjury - can be thrashed by deployment of alternative means including submissions, then the Court should not allow the Application. See the Court of Appeal judicial view expressed in [**Simon Kitavo Nduto & another v Benson Owenga Anjere [1997] KECA 404 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/1997/404/eng%401997-07-31)**.** 8. **Seventh,** if a sound foundation is laid, certain allegations have traditionally been held to be appropriate subjects for cross-examination **including but not limited to issues touching on fraud; *mala fides*; authenticity of the facts deposed; bad motive, self-contradictory depositions; unclear depositions which to require elaboration through cross-examination,** *et alia.*See the persuasive rendition in **G G-R vs. H-P S [2012] KEHC 5208 (KLR); APA Insurance Limited vs. Jennifer Adoyo Oremo [2016] KEHC 1347 (KLR), Invesco Assurance Co. Ltd vs. Commissioner of Insurance & others [2016] KEHC 4750 (KLR);** **Kulati vs. Music Copyright Society of Ltd & 4 others (Cause E113 of 2022) [2026] KEELRC 1558 (KLR) (9 June 2026) (Ruling),** *et alia.* 9. **Eighth,** the Court should guard against prejudice of the deponent by limited the scope of cross-examination, under the twin doctrines of equality of arms and stealing the match. 10. **Ninth,** care should be taken more by the Court, where the Defendant seeking to cross-examine the Plaintiff has not filed his Statement of Defence and Witness Statement. 11. The Court observes that the Applicant seeks to cross-examine the 1st Plaintiff on a wide-ranging scope of facts namely the *locus standi* of both Plaintiffs; specific terms of the Agreement dated 20.09.2006 including completion date; possession of the suit properties; relationship that existed between the Plaintiffs and late Cyrus Jirongo; the request for additional funding in relation to the sale of 2006; connection of the late General Bior with the Sale Agreement and his relationship with the late Cyrus Jirongo; status of completion documents allegedly surrendered to the law firm Kutto & Kiara Nabasenga Advocates in relation to the suit properties; the person who processed the transfer of Lease for parcel 346 to the 2nd Plaintiff and why the name differs from the names in the sale agreement of 20.09.2006; the person who was the actual property owner between late Cyrus Jirongo and Ayen Kon Elizabeth; whether Jirongo was the Agent or actual owner of the suit properties; why Ayen Kon Elizabeth was described as a nominee by the late Cyrus Jirongo; and who is Ayen Kon Deng Malual the 2nd Plaintiff and where is she currently. 12. It is now a settled legal principle that a question of *locus standi* is an integral component of and goes to the root of jurisdiction of the Court. Some questions of *locus standi* present as pure points of law and yet others, like the one herein, presents a cocktail of law and facts. A question of *locus standi* of whatever nature, just like a question of jurisdiction, should be determined *in limine*. 13. Upon subjecting the twelve proposed questions to the refiner’s fire ingrained in the nine principles discussed above, this Court enters a finding that except the proposed questions on: (a) *locus standi* of both Plaintiffs;and (b) the current possession of the suit properties, both of which this Court finds converging at necessity and justice as to deserve thrashing at the preliminary stage through cross-examination of the 1st Plaintiff since the nature of this question of *locus standi* is a cocktail of law and facts, this Court finds the other ten proposed questions prejudicial to the Plaintiffs on account of the fact that they risk crossing the mini-trial (red) Rubicon which then will unfairly condemn the 1st Plaintiff into fielding questions appropriate for cross-examination during the hearing of the main suit. In relation to the question of *locus standi* of both Plaintiffs, Order 2 Rule 15(1)(a), (b) & (c) of the CPR; Order 4 Rule 4 of the CPR; Order 7 Rule 6 of the CPR; and Order 8 Rule 3(4) of the CPR signal that it is a question which can properly so be disposed at the preliminary stage. However, in relation to the ten other proposed questions, this Court is of the considered judicial view that they constitute central questions which this Court will ultimately be called upon to determine, upon consideration of the pleadings, documentary evidence and *viva voce* evidence in trial. To the extent of the ten proposed questions rejected by this Court, therefore, this Court concurs with the arguments advanced by learned counsel for the Plaintiffs that permitting the proposed cross-examination on them would amount to allowing the Applicant to conduct a premature inquiry into the merits of the suit. This, I must underscore, is worsened by the fact that the Defendants are yet to file their respective Statements of Defence and witness statements, which avenue may later be artfully exploited as a fishing ground. 14. Accordingly, except the two proposed questions on *locus standi* of both Plaintiffs;and the current possession of the suit properties for which the Application partially succeeds, this Court concludes that the other ten proposed questions for cross-examination should be and are hereby rejected. **PART VIII: DISPOSITION** 1. **Wherefore:** 1. **the Application is found partially successful limited in scope the proposed questions on: (a) *locus standi* of both Plaintiffs;and (b) the current possession of the suit properties.** 2. **this Court orders the attendance for cross-examination, the 1st Plaintiff, on a date to be fixed by this Court, in respect to depositions he made in his Affidavit in support of the said Plaintiffs’’ Motion dated 19th July 2026, limited in scope the proposed questions on (a) *locus standi* of both Plaintiffs;and (b) the current possession of the suit properties.** 3. **this Court directs that summons do issue to the 1st Plaintiff, to be served by the Advocate representing the Plaintiffs.** 2. **The costs of this Application shall abide the outcome of the main suit.** **Virtually Delivered, Signed and Dated in ELC Eldoret this 29th day of July 2026** **…………….…………** **C.N. Ondieki** **Judge** **In the presence of:** **Advocate for the Plaintiffs/Respondents: Mr. Ajak** **Advocate for the 1st Defendant/Applicant: N/A** **Advocate for the 2nd Defendant: N/A** **Advocate for the 3rd Defendant: N/A** **Court Assistant: Ms. Chepkoech & Ms. Juma**