Musa v Matheka (Civil Case E014 of 2022) [2025] KEMC 73 (KLR)
The bottom line
#A Kenyan magistrate awarded Ksh. 95,900 in case costs against a losing plaintiff, confirming that defended suits attract higher costs and undocumented expenses get nothing.
What this practically means
#Executive summary
#Key legal issues
#Whether the dispute over the certificate of costs could be resolved by the court under Order 21 of the Civil Procedure Rules
Yes. The court applied Order 21 rules 9, 9A–9D, noting no agreement or fixing of costs, and assessed costs in accordance with the Advocates (Remuneration) Order.
The court found the decree undisputed but the costs disagreed upon. Order 21 rule 9 permits costs to be stated in a decree where agreed, fixed, certified or taxed. Rules 9A–9C set out the procedure of filing and serving a statement of costs and a response, with the court making appropriate orders within fourteen days, guided by the Advocates (Remuneration) Order under rule 9D(4).
The applicable scale and quantum of party and party costs
Higher scale applied because the suit was defended; Ksh. 65,000/= awarded given the suit was not complex.
The plaintiff's claim was not liquidated - an injunction and release of a motor vehicle - so paragraph 2 of the 7th Schedule applied. The Kshs. 50,000 cap applies to undefended suits; a defended suit warrants more, tempered by the absence of complexity, yielding Ksh. 65,000/=.
Whether witness expenses were payable
No award made for want of supporting documents.
Although attendances were quantified from the court record, no receipts or documents substantiated witness expenses. The procedure under Order 21 rule 9A requires supporting documents, and absent them no award was made.
Legal principles established
#- Where no specific sum is sued for or awarded, party and party costs fall under paragraph 2 of the 7th Schedule to the Advocates Remuneration Order, capped at Kshs. 50,000 for undefended suits but discretionary for defended suits
- The 'Higher Scale' applies to party and party costs in defended cases
- Supporting documents must be furnished to substantiate claims for costs such as witness expenses
Court orders
#- 1.Party and party costs on higher scale awarded at Ksh. 65,000/=
- 2.Application costs awarded at Ksh. 3,000/=
- 3.Court fees on suit awarded at Ksh. 4,100/=
- 4.Court attendances awarded at Ksh. 25,900/= (hearings 3 × 2,100 and mentions 14 × 1,400)
- 5.Decree and certificate of costs awarded at Ksh. 500/=
- 6.Total costs of Ksh. 98,500/= less Ksh. 2,600/= awarded to the plaintiff on 28/11/2022, leaving a balance of Ksh. 95,900/= due to the defendant/decree-holder
- 7.A Decree and Certificate of costs to issue to that effect
- Jurisdiction invoked
- Order 21 rules 8, 9, 9A–9D of the Civil Procedure Rules (taxation/assessment of costs)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musa v Matheka (Civil Case E014 of 2022) [2025] KEMC 73 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/73/eng@2025-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.