https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3469

Malingi & another v National Land Commission & 2 others (Environment and Land Petition E006 of 2025) [2026] KEELC 3469 (KLR) (13 May 2026) (Ruling) Neutral citation: [2026] KEELC 3469 (KLR) Republic of Kenya In the Environment and Land Court at Malindi Environment and Land Petition E006 of 2025 EK Makori, J May 13, 2026 Between Raymond Taura Malingi 1st Petitioner Raphael Haro Mwadondo 2nd Petitioner and The National Land Commission 1st Respondent County Government of Tana River 2nd Respondent and Wachu Ranching DA Company Limited Interested Party Ruling 1.The notice of motion application dated September 18, 2025, requests the following orders:a.That the application be certified as urgent and service thereon be dispensed with in the first instance.b.That the OCPD Garsen Division and the OCS Tarssa Police Station be summoned to appear before this Court on an immediate date to be fixed for the purpose of explaining the ongoing activities on the suit property, Land Reference No. 13600, CR No. 21114, under their guidance and with heavy security.c.That the costs to the application be provided for. 2.The application is supported by the affidavit sworn on September 18, 2025, by Raymond Taura Malingi. 3.The application was canvassed through written submissions. I acknowledge receipt of the submission from counsel for the applicants, Mr. Otara. I did not see submissions from counsel for the respondents. 4.Based on the materials and submissions placed before me, the issues I frame for the determination of this court are whether to summon the security chiefs listed in the application and who should bear the costs of the motion. 5.The petitioners aver that they have discovered unusual survey work underway at the property. Upon investigation, the petitioners realized that the 2nd respondent is not carrying out the survey work in question. The exercise is being carried out by persons unknown to the petitioners. These individuals are guarded by heavy security provided by the OCPD, Garsen's Division, and OCS Tarssa Police Station. Thus, the petitioners have opted to invoke the inherent jurisdiction of this court to have those security chiefs summoned and to explain the ongoing activities to ensure that the ends of justice are met. 6.The petitioners state that when this matter came up for directions, both the 1st and 2nd respondents distanced themselves from the acts complained of. One sure thing that could shed light is the presence of the OCPD Garsen Division and the OCS Tarssa Police Station. The courts generally have inherent power, and specific power under order 16 rule 14 of the Civil Procedure Rules, to summon any person as a witness if it appears their evidence is material to the case, even if the parties have not called them. 7.Order 16, rule 1 of the Civil Procedure Rules sets out the circumstances under which a witness may be summoned to court as follows:“At any time before the trial conference under order 11, the parties may obtain, on application to the court or to such officer as it appoints in this behalf, summonses to persons whose attendance is required either to give evidence or to produce documents.” 8.In Chiponda & 860 others v Kassam & others (Environment & Land Case 301 of 2015) [2025] KEELC 3018 (KLR) (27 March 2025) (Ruling), the ELC (Angima J) explored the limits of summoning witnesses and the production of documents. The court emphasized that the party seeking a witness summons must demonstrate materiality—meaning the intended testimony or document must be directly relevant and necessary to resolve the core issues of the suit, rather than being used as a stalling tactic or a fishing expedition. 9.As already stated, the summoning of the security chiefs, as alluded to, is to come and explain who has invaded the suit property and is surveying it under heavy security. None of the parties sued has admitted to undertaking the exercise 10.Is the summoning of those security chiefs relevant to this case? At this point, it is to be noted that this petition has not proceeded to a hearing. I am not sure whether the parties have closed their pleadings for the court to provide directions on how to proceed with the petition. 11.What the court is being asked to do is to inquire into who the persons are who are allegedly surveying the land on behalf of the petitioners. The court is being prompted to act as an inquisitorial court to gather facts and evidence for the petitioners. It has not been communicated whether the summoning of those security chiefs will be material to this case, and, after their testimony, what follows next. This means the petitioner is unsure whom to sue. It will not be the work of this court to undertake such an inquiry on behalf of the petitioner, as that would turn this court from the adversarial setup to an inquisitorial setup. That is the work of the parties to know who to sue and what orders to seek from the court. 12.Having arrived at the above conclusion, I do not think it will be necessary to summon the Police Chiefs alluded to in the application; thus, the application dated September 18, 2025, is hereby dismissed. 13.There will be no orders as to costs. DATED, SIGNED, AND DELIVERED VIRTUALLY IN NYERI ON THIS 13TH DAY OF MAY, 2026.E. K. MAKORIJUDGEIn the presence of:Mr. Otara for the PetitionersMr. Orende for the 1st RespondentKendi: Court Assistant