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ELCStruck OutChamber Summons dated 29th July, 2025 (Miscellaneous Application)· [2026] KEELC 1347 (KLR)

Ngatho & another v Moki Savings Cooperative Society Limited & 21 others (Environment and Land Miscellaneous Case E222 of 2025) [2026] KEELC 1347 (KLR)

Environment and Land Court
9 March 2026
MCMBOGO C.G.
1,909 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out a challenge to a legal fees ruling because it was filed as a separate case instead of within the original suit.

What this practically means

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Executive summary

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The applicants, plaintiffs in Milimani ELC No. 745 of 2001, filed a chamber summons dated 29th July, 2025 under Articles 50 and 159 of the Constitution, Sections 3A, 27 and 89 of the Civil Procedure Act and Paragraphs 11(4) and 49 of the Advocates (Remuneration) Order seeking to set aside the taxing officer's decision of 12th November, 2024 and to have three bills of costs re-taxed or remitted to a different taxing master. They argued that the taxing officer erred in principle in awarding instruction fees of Kshs.6,581,663/= and relied on Article 159 to excuse procedural irregularities. The respondents opposed, contending that the applicants' counsel's letter of 22nd November, 2024 was not a valid objection under Rule 11 of the Advocates Remuneration Order, that the application was filed after inordinate and unexplained delay, and that instituting a separate miscellaneous suit instead of a reference within ELC No. 745 of 2001 contravened Section 34(1) of the Civil Procedure Act. The court framed one issue: whether the application was competent and whether its jurisdiction was properly invoked. Applying Section 34(1) and the Mwirebua, Scope Telematics, Karume, Salat and Mumo Matemu authorities, the court held that an application to set aside a taxing officer's decision must be filed within the original suit, not by miscellaneous application, since retaxation requires examination of the primary documents in the substantive file. It further held that Article 159 cannot cure such procedural indiscretions. The chamber summons was struck out with each party bearing their own costs.

Key legal issues

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01

Competence of a reference against taxation filed as a miscellaneous application

Holding

The application was incompetent and the court lacked jurisdiction because it was filed outside the substantive suit ELC No. 745 of 2001

Reasoning

Section 34(1) of the Civil Procedure Act requires questions relating to execution, discharge or satisfaction of a decree to be determined by the court executing the decree, not by a separate suit. The court found it could not retax a bill of costs without examining the primary documents and pleadings in the original file, so the chamber summons had to be filed within ELC No. 745 of 2001.

p. 4
02

Whether Article 159 could cure the procedural defect

Holding

No; Article 159 cannot be used to cure all manner of procedural indiscretions

Reasoning

Relying on Scope Telematics and Mumo Matemu, the court held that where a clear statutory procedure exists it must be strictly followed, and that compliance with rules of procedure is not antithetical to Article 159 or the overriding objective.

p. 5

Legal principles established

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  • An application seeking to set aside a taxing officer's decision must be filed within the original suit, not as a miscellaneous application.
  • Where a clear procedure for redress of a grievance is prescribed by statute, it must be strictly followed, and Article 159 is not a panacea for procedural indiscretions.
  • Compliance with rules of procedure is not antithetical to Article 159 of the Constitution; procedure is a handmaiden of just determination of cases.

Court orders

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  1. 1.The chamber summons dated 29th July, 2025 is hereby struck out
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticles 50 and 159
  • Civil Procedure ActSections 1A, 1B, 3A, 27, 34(1) and 89
  • Advocates (Remuneration) OrderParagraphs 11(4) and 49; Rule 11
  • Appellate Jurisdiction ActSections 3A and 3B
  • Arbitration Rules, 1997Rule 2

Cases cited (5)

  • Mwirebua v Mutonga
    [2025] KEELC 7064 (KLR)
  • Scope Telematics International Sales Limited v Stoic Company Limited & another
    [2017] KECA 545 (KLR)
  • Speaker of National Assembly v Njenga Karume
    [2008] 1 KLR 425
  • Nicholas Kiptoo Arap Korir Salat v IEBC & 6 Ors
    [2010] eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others
    Civil Appeal No. 290 of 2012
Jurisdiction invoked
Articles 50 and 159 of the Constitution, Sections 3A, 27 and 89 of the Civil Procedure Act and Paragraphs 11(4) and 49 of the Advocates (Remuneration) Order

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, "Ngatho & another v Moki Savings Cooperative Society Limited & 21 others (Environment and Land Miscellaneous Case E222 of 2025) [2026] KEELC 1347 (KLR)", Case Analysis (2026). Chamber Summons dated 29th July, 2025 (Miscellaneous Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1347/eng@2026-03-09

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