Ngewa & another v Kilonzo & another (Environment and Land Miscellaneous Application E002 of 2025) [2026] KEELC 2956 (KLR) (18 May 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MAKUENI** **ELC MISC APPLICATION NO. E002 OF 2025** **ROSE NDUKU NGEWA..............…………………………...1ST APPLICANT** **JEREMIAH NGWEA..................………………...................2ND APPLICANT** **-VERSUS** **KALEWA NGEWA KILONZO... …………………...... 1ST RESPONDENT** **CHRISTINA KAVINDU NGEWA.................................. 2ND RESPONDENT** **RULING** 1. This is a ruling in respect of a reference from the decision of the taxing officer given on 19th December, 2024. The reference was made through a chamber summons dated 11th August, 2025 pursuant to leave granted by this court on 31st July, 2025. 2. The Applicants contend that items 1 and 7 to 12 were excessive and ought to be set aside. The Applicants contend that the taxation arose out of an interlocutory application and the main suit is still pending determination. They state that the aforesaid items were excessively high and this court ought to intervene by setting them aside. 3. The Respondents opposed the reference through a replying affidavit sworn on 29th September, 2025. This replying affidavit does not touch on the issue raised by the Applicants on the exorbitant taxed bill. It instead dwells on matters which have been overtaken by events this court having granted leave to the Applicants to file a reference out of time on 31st July, 2025. 4. In further affidavit by the Applicants, the Applicants responded to the issues raised by the Respondents but correctly informed the Respondents that they had been granted leave to file a reference out of time and complied with the directions of the court. 5. The parties were directed to file written submissions. The Applicants filed their submissions dated 25th February, 2026. The Respondents filed submissions dated 12th March, 2026. I have carefully considered the Applicant’s application, the opposition to the same by the Respondents as well as the submissions by the parties. 6. The only issue for determination is whether items 1 and 7 to 12 are excessive as to call for interference by this court. In the case of **First American Bank of** **Kenya Ltd –vs- Shah & Others** it was held as follows: **“The court cannot interfere with the taxing officer’s decision unless it is shown that either the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justify an inference that it was based on an error of principle.”** 1. It is trite that this court can only interfere with the discretion of the taxing officer if it is shown that the fee awarded was manifestly excessive as to justify an inference that it was based on an error of principle. 2. In the instant case, there is no doubt that the taxation arose from an interlocutory application. The suit is still pending. When the Applicants asked for reasons for taxation from the taxing officer, he responded by giving reasons on 30th October, 2025. 3. The taxing officer applied Schedule 7 of the Advocates (Remuneration) (Amendment) Order 2014. Under Schedule 7 Rule 5 provides that on any application, notice of motion, chamber summons or execution proceedings to include taking instruction to proceed or oppose, drawing application, engrossing and filing the fee chargeable is Kshs.3,000/=. The taxing officer awarded Kshs.120,000/= which was excessive and calls for interference with the taxing officer’s discretion. Items 7 to 12 were on attendance before the magistrate. The same were assessed at Kshs.1,400/= which is the scale provided for. I therefore set aside instruction fees on item number one (1). I refer this matter back for fresh taxation by a taxing officer other than Hon. S. Jalang’o in strict compliance with the Schedule 7 of the Advocate’s (Remuneration) (Amendment) Order of 2014. The Applicants shall have costs of this reference. It is so ordered. **...............................................** **HON. E. O. OBAGA** **JUDGE** **RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 18TH DAY OF MAY, 2026.** **IN THE PRESENCE OF:** Ms. Mutisya for Mr. Muia for Applicant. Court assistants Kilonzo and Musyoki