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ELCDismissedNotice of motion dated September 18, 2025 (petition not numbered in judgment)· [2026] KEELC 3469 (KLR)

Malingi & another v National Land Commission & 2 others (Environment and Land Petition E006 of 2025) [2026] KEELC 3469 (KLR)

Environment and Land Court
13 May 2026
835 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to summon police chiefs to investigate a land dispute, ruling parties must present their own evidence, not ask judges to investigate.

What this practically means

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Executive summary

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The petitioners, through a notice of motion dated September 18, 2025 supported by an affidavit of Raymond Taura Malingi, sought orders summoning the OCPD Garsen Division and the OCS Tarssa Police Station to appear before the Environment and Land Court at Nyeri and explain ongoing survey activities on the suit property, Land Reference No. 13600, CR No. 21114, allegedly conducted by persons unknown under heavy police security. The application was canvassed by written submissions; only the petitioners' counsel, Mr. Otara, filed submissions. The court framed two issues: whether to summon the security chiefs, and costs. The petitioners argued that neither the 1st nor 2nd respondent had admitted to the survey works, so the security chiefs' evidence was necessary. The court, citing Order 16 rules 1 and 14 of the Civil Procedure Rules and the decision in Chiponda & 860 others v Kassam & others (Angima J), acknowledged its power to summon any person whose evidence is material even if not called by the parties, but held that materiality must be demonstrated. The petition had not proceeded to hearing, pleadings had not been confirmed as closed, and no materiality was shown. The court declined to act inquisitorially to gather facts or identify defendants for the petitioners, holding that it is for the parties to know whom to sue and what orders to seek. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the security chiefs should be summoned under Order 16 rule 14 of the Civil Procedure Rules

Holding

The application for summons was dismissed because materiality of the proposed evidence was not established and the petition had not proceeded to hearing or directions on pleadings.

Reasoning

The court accepted that it has inherent power and specific power under Order 16 rule 14 to summon any person as a witness whose evidence is material, even if not called by the parties. However, the petitioners could not show that the testimony of the OCPD and OCS would be material to the case, and the court declined to transform itself into an inquisitorial forum to gather evidence for the petitioners, who appeared unsure whom to sue.

p. 2
02

Whether the court may summon witnesses at this stage of the petition

Holding

The court noted the petition had not proceeded to hearing and it was unclear whether pleadings had closed, weighing against issuing summons.

Reasoning

Order 16 rule 1 allows parties to obtain summonses to persons whose attendance is required to give evidence or produce documents at any time before the trial conference under Order 11. The court observed that the petition had not reached hearing, directions had not been given on how to proceed, and it was unclear what would follow the testimony of the security chiefs.

p. 2

Legal principles established

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  • A party seeking a witness summons must demonstrate that the intended testimony is directly relevant and necessary to resolve the core issues, not a fishing expedition
  • The court will not act inquisitorially to gather facts and identify whom a party should sue; it is for the parties to know who to sue and what orders to seek

Court orders

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  1. 1.The application dated September 18, 2025 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 16 rule 14
  • Civil Procedure RulesOrder 16 rule 1
  • Civil Procedure RulesOrder 11

Cases cited (1)

  • Chiponda & 860 others v Kassam & others
    (Environment & Land Case 301 of 2015) [2025] KEELC 3018 (KLR) (27 March 2025) (Ruling)
Jurisdiction invoked
Inherent jurisdiction of the court and Order 16 rules 1 and 14 of the Civil Procedure Rules

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, "Malingi & another v National Land Commission & 2 others (Environment and Land Petition E006 of 2025) [2026] KEELC 3469 (KLR)", Case Analysis (2026). Notice of motion dated September 18, 2025 (petition not numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3469/eng@2026-05-13

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