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MagistratePartially Allowed· [2026] KEMC 727 (KLR)

Barasa v Getange & another (Civil Suit E529 of 2024) [2026] KEMC 727 (KLR)

Magistrates' Court
12 February 2026
633 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Bungoma court cut a costs bill to Kshs. 228,100, ruling you cannot recover payments made to public officials and that email service counts as valid service.

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 12th February 2026, determines the Plaintiff's Party and Party Bill of Costs dated 19th November 2025, to which the 2nd Defendant objected through written submissions dated 3rd February 2026. The court went item by item. Filing fee items 1, 3-5 and 8 were allowed as drawn on the strength of court fee receipts; item 2 was struck off for want of proof of Kshs. 300/=. Items 6 and 7, claiming Kshs. 5,000/= paid to a police officer and a medic, were disallowed because public officers should not be privately paid to perform official duties and a litigant cannot benefit from an illegality. Service fees were assessed by reference to the Advocates Remuneration Order: service at Luanda (beyond three kilometres from Bungoma) was assessed at Kshs. 4,000/= under Schedule 7 (10)(i); items 10 and 12 were struck off for want of proof; advertisement service (item 13) was allowed at Kshs. 5,000/= despite the absence of a receipt for the claimed Kshs. 16,240/=; and e-mail services (items 11 and 14-17) were allowed at Kshs. 1,400/= each, applying Aburili J's holding in Aoro v Were that e-mail service is valid service. Attendance and drafting items were allowed as drawn or reduced where hearings took less than a full day. The Bill was finally assessed at Kshs. 228,100/=.

Key legal issues

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01

Whether payments to public officers (police officer and medic) are recoverable as costs

Holding

Assessed off; such payments are an illegality from which the Plaintiff cannot benefit

Reasoning

The court reasoned that a police officer and a medic are public officers who are paid by the State to perform their official duties. Paying them privately to perform those duties is an illegality, and costs cannot be awarded to a litigant to reimburse such unlawful expenditure.

p. 1
02

Whether service effected via e-mail attracts service fees

Holding

Yes; Kshs. 1,400/= per service, following Aoro v Were

Reasoning

Relying on Aburili J in Aoro v Were, the court held that Order 5 of the Civil Procedure Rules applies mutatis mutandis to service of other court processes, that e-mail service is valid service (a practice necessitated by the Covid-19 pandemic), and each such service draws the Schedule 7 minimum fee of Kshs. 1,400/=.

p. 3
03

Assessment of service fees for service effected at Luanda, over three kilometres from Bungoma

Holding

Assessed at Kshs. 4,000/= under Schedule 7 (10)(i) of the ARO

Reasoning

Schedule 7 (10)(i) provides minimum fees of Kshs. 1,400/= within three kilometres of the subordinate court or district registry. Luanda is beyond three kilometres from Bungoma, so the court, considering the distance, exercised its discretion and assessed service fees at Kshs. 4,000/=.

p. 2
04

Whether hearing attendances that did not take a full day attract full-day fees

Holding

Reduced to Kshs. 2,100/= each per Schedule 7 (7)(ii)

Reasoning

The hearing sessions in items 23 and 24 did not take a full day, so they were assessed at the half-day rate of Kshs. 2,100/= each under Schedule 7 (7)(ii) of the Advocates Remuneration Order rather than as drawn.

p. 3

Legal principles established

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  • A litigant cannot recover, as costs, payments made to public officers to perform their official duties, as this would be benefiting from an illegality
  • Service of court process via e-mail is valid service and attracts the minimum fee under Paragraph 10 of Schedule 7 of the Advocates Remuneration Order

Court orders

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  1. 1.The Plaintiff's Party and Party Bill of Costs dated 19th November 2025 is assessed at Kshs. 228,100/=
  2. 2.It is so ordered

Authorities

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Legislation

  • Advocates Remuneration OrderSchedule 7 (10)(i)
  • Advocates Remuneration OrderSchedule 7 (7)(ii)
  • Civil Procedure RulesOrder 5

Cases cited (1)

  • Aoro v Were
    (Miscellaneous Reference Application E019 of 2022) [2022] KEHC 14628 (KLR)
Jurisdiction invoked
Advocates Remuneration Order – assessment of a Party and Party Bill of Costs

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, "Barasa v Getange & another (Civil Suit E529 of 2024) [2026] KEMC 727 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/727/eng@2026-02-12

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