Nasimiyu v Auto Mega Ltd & another (Civil Suit E024 of 2025) [2026] KEMC 737 (KLR)
The bottom line
#A Bungoma court cut a litigant's recoverable costs to Kshs. 66,748, ruling jointly liable defendants can be pursued under one bill and VAT is not recoverable.
What this practically means
#Executive summary
#Key legal issues
#Liability of a jointly and severally liable defendant for the plaintiff's assessed costs
The objection fails; all defendants are liable under one decree and one Bill of Costs, with a right of reimbursement inter se
The court reasoned that joint and several liability produces one judgment and decree, so the plaintiff files a single Bill of Costs and may recover the whole from any defendant. Double recovery is not permitted, and a defendant who alone settles is left to an indemnity or contribution suit against co-defendants. The court adopted Dubai Electronics as approved in William Mukui Nyaga and the Ringera J statement in Kenya Airways v Mwaniki Gichohi.
Entitlement to VAT in a Party and Party Bill of Costs
VAT was taxed off; it is only awardable on proof of a taxable supply or in Advocate-Client bills
Following Pyramid Motors v Langata Gardens (also followed in KCB v Stagecoach Management), the court held that party-and-party costs compensate the litigant, not the advocate, so no taxable supply arises between the parties. VAT could only be awarded on Advocate-Client bills or proof that the plaintiff paid VAT; a law firm's payment of VAT does not entitle the litigant to the award.
Assessment of individual items and costs where success is divided
Items without receipts or evidence of service/sessions were taxed off; service items were assessed per Schedule 7 of the ARO; costs reduced to reflect 90%:10% apportionment
Applying Schedule 7 of the ARO, service within Bungoma town was assessed at a minimum of Kshs. 1,400 (items assessed at Kshs. 2,000 each) and e-mail service was assessed at Kshs. 1,400 per item following Aoro v Were, where Aburili J held that service via e-mail is still service. Filing fees and disbursements were taxed off for want of proof, attendances without evidence of court sessions were taxed off, and Note 3 to Schedule 7 justified reduction for partial success.
Legal principles established
#- Where judgment is entered jointly and severally against defendants, the plaintiff files only one Bill of Costs and may pursue the defendants jointly or separately; a defendant who alone settles the costs may file an indemnity or contribution suit against co-defendants
- VAT cannot be awarded in a Party and Party Bill of Costs unless a party proves it supplied taxable goods and services to the other party
- Where success in a suit is divided, the scale of costs may be distributed having regard to partial success on either side (Note 3, Schedule 7 ARO)
Court orders
#- 1.The 2nd Defendant's objection to settling costs recoverable from the 1st Defendant is dismissed
- 2.Item B on VAT is assessed off
- 3.Item 2 assessed off for want of proof
- 4.Item 6 (disbursement) assessed off for want of proof
- 5.Items 8 and 9 (service within Bungoma town) assessed at Kshs. 2,000 each
- 6.Items 10 to 16 (service by e-mail) assessed at Kshs. 1,400 each
- 7.Items 19 and 24 (attendances) assessed off for want of evidence
- 8.Items 20 and 21 assessed as drawn
- 9.Items 26 and 27 assessed at Kshs. 2,100 each
- 10.The Plaintiff's Party and Party Bill of Costs dated 12th February 2026 is assessed at Kshs. 83,435, reduced to Kshs. 66,748 having regard to 90%:10% apportionment of liability
- Jurisdiction invoked
- Taxation/assessment of a Party and Party Bill of Costs under the Advocates Remuneration Order (Schedule 7), following joint and several judgment against the Defendants
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nasimiyu v Auto Mega Ltd & another (Civil Suit E024 of 2025) [2026] KEMC 737 (KLR)", Case Analysis (2026). Civil Suit No E024 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/737/eng@2026-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.