Ongera v Wanangali Company Ltd (Civil Suit E170 of 2025) [2026] KEMC 597 (KLR)
The bottom line
#A Bungoma court taxed a litigant's costs at Kshs. 69,570 after ruling that VAT cannot be claimed in party-and-party costs and e-mail service counts as valid service.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to VAT in a Party and Party Bill of Costs
VAT was not awardable and item B was taxed off
Relying on Pyramid Motors Ltd v Langata Gardens Ltd and KCB Ltd v Stagecoach Management Ltd, the court reasoned that Party and Party costs belong to the litigant, not the advocate, so there is no taxable supply between the parties. VAT is chargeable on taxable supplies made by a registered person, and the mere fact that a law firm pays VAT does not entitle the litigant to recover it. Only evidence of payment of VAT and entitlement to indemnity, or an Advocate-Client Bill, could support such an award.
Assessment of instruction fees
Kshs. 45,000/= claimed allowed as drawn, above the minimum of Kshs. 40,000/= under Schedule 7
The value of the subject matter was Kshs. 103,400/=, for which Schedule 7 of the ARO prescribes a minimum instruction fee of Kshs. 40,000/=. Considering the time taken to conclude the matter, the court found the Kshs. 45,000/= claimed reasonable and assessed item A as drawn.
Taxation of service items including e-mail service
Items 7 & 8 assessed at Kshs. 1,400/= each following Aoro v Were; item 5 at Kshs. 2,000/= for Makutano; item 6 taxed off
The court applied Schedule 7(10)(i) of the ARO for service at Makutano, a short distance from Bungoma, and adopted Aburili J's holding in Aoro v Were that service by e-mail is valid service attracting Kshs. 1,400 under Schedule 7 of the ARO. Item 6 failed for want of proof of service.
Distribution of costs given partial success
Costs due to the Plaintiff reduced from Kshs. 77,300/= to Kshs. 69,570/= to reflect the 90%:10% apportionment of liability
Note 3 under Schedule 7 of the ARO permits the scale to be distributed where success in a suit is divided. Since liability had been apportioned 90%:10% in favour of the Plaintiff, the court applied 90% to the assessed figure of Kshs. 77,300/=, yielding Kshs. 69,570/=.
Legal principles established
#- VAT cannot be awarded on a Party and Party Bill of Costs unless a party proves it supplied taxable goods or services to the other party, since such costs are due to the litigant rather than the advocate
- Service of court processes via e-mail constitutes valid service and is taxable per Schedule 7 of the Advocates (Remuneration) Order
- Where success in a suit is divided, the taxed scale may be distributed having regard to partial success on either side
Court orders
#- 1.Item A (instruction fees) assessed as drawn at Kshs. 45,000/=
- 2.Item B (VAT) taxed off
- 3.Item 5 (service) assessed at Kshs. 2,000/=
- 4.Item 6 taxed off for want of proof
- 5.Items 7 & 8 (service by e-mail) assessed at Kshs. 1,400/= each
- 6.Item 10 (attendances) taxed off for want of evidence
- 7.Item 9 assessed at Kshs. 500/=; item 11 at Kshs. 1,400/=; item 15 at Kshs. 2,100/=
- 8.The Party and Party Bill of Costs assessed at Kshs. 77,300/=, and after applying the 90%:10% apportionment of liability, costs due to the Plaintiff fixed at Kshs. 69,570/=
- Jurisdiction invoked
- Advocates (Remuneration) Order, Schedule 7 - taxation of a Party and Party Bill of Costs
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ongera v Wanangali Company Ltd (Civil Suit E170 of 2025) [2026] KEMC 597 (KLR)", Case Analysis (2026). Not stated in the judgment (Bungoma Law Courts). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/597/eng@2026-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.