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MagistratePartially AllowedCivil Suit No E025 of 2025· [2026] KEMC 631 (KLR)

Sifuna v Auto Mega Limited & another (Civil Suit E025 of 2025) [2026] KEMC 631 (KLR)

Magistrates' Court (Senior Resident Magistrate's Court), Bungoma
30 April 2026
TOT.O. Omono
1,419 words in judgment
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The bottom line

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A Bungoma court fixed the Plaintiff's recoverable court costs at Kshs. 74,828 after reducing them for partial success, rejecting VAT and unproven expenses.

What this practically means

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Executive summary

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This ruling by Senior Resident Magistrate T.O. Omono, delivered at Bungoma on 30th April 2026, determines the Plaintiff's Party and Party Bill of Costs dated 03rd March 2026 following judgment entered jointly and severally against the Defendants. The court first dealt with an objection by the 2nd Defendant that he should not bear the costs due to the Plaintiff recoverable from the 1st Defendant. Relying on Dubai Electronics v Total Kenya as approved in William Mukui Nyaga, and the dictum of Ringera J in Kenya Airways v Mwaniki Gichohi, the court held that where judgment is joint and several only one bill is filed and the plaintiff may pursue any defendant, a settling defendant retaining a contribution or indemnity claim against co-defendants; the objection was dismissed. On taxation, items drawn to scale were allowed as drawn. Item B on VAT was taxed off following Pyramid Motors v Langata Gardens and KCB v Stagecoach Management, the court holding that VAT is awardable only where a party proves a taxable supply, and that a law firm's payment of VAT does not entitle the litigant to VAT. Item 5 (police officer's attendance fees of Kshs. 5,000/=) was taxed off for want of proof and as an illegality, and item 6 was taxed off for want of a receipt. Local service items were assessed at Kshs. 2,000/= each, e-mail service items at Kshs. 1,400/= each following Aoro v Were, and adjourned attendances at Kshs. 1,400/= each. The bill was assessed at Kshs. 93,535/= and, applying Note 3 under Schedule 7 of the ARO given the 90%:10% apportionment of liability, the costs due to the Plaintiff were fixed at Kshs. 74,828/=.

Key legal issues

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01

Effect of joint and several liability on taxation of costs

Holding

Only one Bill of Costs is filed where judgment is joint and several; the 2nd Defendant's objection was dismissed

Reasoning

Where judgment is entered jointly and severally, the plaintiff does not file separate bills against each defendant; one bill suffices and recovery may be pursued against any defendant, with a settling defendant entitled to contribution from co-defendants. Relying on Dubai Electronics v Total Kenya as approved in William Mukui Nyaga, the court found the objection had no legal basis.

p. 2
02

Award of VAT in a Party and Party Bill of Costs

Holding

VAT assessed off

Reasoning

Following Pyramid Motors v Langata Gardens and KCB v Stagecoach Management, the court reasoned that Party and Party costs are due to a litigant, not counsel; VAT applies only to taxable supplies, and neither party supplied services to the other. VAT could apply only in an Advocate-Client Bill or where the litigant proved payment of VAT.

p. 3
03

Police officer's attendance fees and unproved disbursements

Holding

Items 5 and 6 assessed off

Reasoning

Item 5 lacked a receipt proving the Kshs. 5,000/= expenditure, and a police officer who testifies in his official capacity is paid by taxpayers; paying him for official duties is an illegality. Item 6, a disbursement, was also unproved by any receipt.

p. 3
04

Costs of service and adjourned attendances

Holding

Local service at Kshs. 2,000/= per item; e-mail service at Kshs. 1,400/= per item; adjourned/mention sessions at Kshs. 1,400/= each

Reasoning

Guided by Schedule 7(10)(i) of the ARO fixing a minimum of Kshs. 1,400/= for service in Bungoma town, the court allowed Kshs. 2,000/= per item. For e-mail service it adopted Aburili J's holding in Aoro v Were that e-mail service is valid service attracting Kshs. 1,400/=. Adjourned sessions were treated as routine mentions under Schedule 7(6).

p. 4
05

Distribution of costs for partial success

Holding

Costs reduced from Kshs. 93,535/= to Kshs. 74,828/= after apportionment

Reasoning

Liability had been apportioned 90%:10% in the Plaintiff's favour. Note 3 under Schedule 7 of the ARO permits distribution of the scale where success is divided. Applying that Note, the court apportioned the assessed figure of Kshs. 93,535/= accordingly, arriving at Kshs. 74,828/=.

p. 5

Legal principles established

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  • Where judgment is entered jointly and severally against defendants, the plaintiff files only one Bill of Costs and may pursue any defendant for the assessed costs; a defendant who settles alone may seek contribution or indemnity from co-defendants
  • VAT cannot be awarded in a Party and Party Bill of Costs unless the party proves it supplied taxable goods and services to the other party; a law firm's payment of VAT does not entitle the litigant to VAT
  • Service via e-mail is valid service attracting a fee of Kshs. 1,400 under Paragraph 10 of Schedule 7 of the Advocates Remuneration Order
  • Where success in a suit is divided, the scale of costs may be distributed having regard to partial success on either side

Court orders

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  1. 1.The 2nd Defendant's objection that he cannot settle the Plaintiff's costs due from the 1st Defendant is dismissed
  2. 2.Items A, 1, 3, 4, 7, 23-27, 29-33 & 35-48 assessed as drawn since drawn to scale
  3. 3.Item B on VAT assessed off
  4. 4.Item 5 (police officer's court attendance fees of Kshs. 5,000/=) assessed off for want of proof and for illegality
  5. 5.Item 6 (disbursement) assessed off for want of proof
  6. 6.Items 8 & 9 (service within Bungoma town) assessed at Kshs. 2,000/= each
  7. 7.Items 10-21 (service via e-mail) assessed at Kshs. 1,400/= each
  8. 8.Items 28 and 34 (adjourned/routine mention sessions) assessed at Kshs. 1,400/= each
  9. 9.The Plaintiff's Party and Party Bill of Costs dated 03rd March 2026 assessed at Kshs. 93,535/=, and after distribution for partial success (90%:10%), the costs due to the Plaintiff are Kshs. 74,828/=

Authorities

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Legislation

  • Advocates Remuneration OrderSchedule 7(10)(i)
  • Advocates Remuneration OrderSchedule 7(6)
  • Advocates Remuneration OrderNote 3 under Schedule 7
  • Civil Procedure RulesOrder 5
  • Value Added Tax ActSection 5

Cases cited (6)

  • Dubai Electronics v Total Kenya & 2 Others
    High Court (Milimani Commercial and Admiralty Division) Civil Case No. 870 of 1998
  • William Mukui Nyaga v Joseph Kimemia Muthondu & 2 others
    [2020] KEHC 8936 (KLR)
  • Kenya Airways Limited vs. Mwaniki Gichohi
    null
  • Pyramid Motors Limited vs Langata Gardens Limited
    (2015) eKLR
  • Kenya Commercial Bank Limited v Stagecoach Management Limited
    [2017] eKLR
  • Aoro v Were
    (Miscellaneous Reference Application E019 of 2022) [2022] KEHC 14628 (KLR)
Jurisdiction invoked
Taxation of a Party and Party Bill of Costs under the Advocates Remuneration Order (Schedule 7); underlying suit in which judgment was entered jointly and severally against the Defendants

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, "Sifuna v Auto Mega Limited & another (Civil Suit E025 of 2025) [2026] KEMC 631 (KLR)", Case Analysis (2026). Civil Suit No E025 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/631/eng@2026-04-30

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