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MagistratePartially AllowedCivil Suit No E024 of 2025· [2026] KEMC 737 (KLR)

Nasimiyu v Auto Mega Ltd & another (Civil Suit E024 of 2025) [2026] KEMC 737 (KLR)

Magistrates' Court
30 April 2026
1,367 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 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

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Executive summary

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This ruling by Senior Resident Magistrate T.O. Omono at Bungoma determines the Plaintiff's Party and Party Bill of Costs dated 12th February 2026, following judgment entered jointly and severally against the Defendants. The 2nd Defendant objected to bearing costs attributable to the 1st Defendant. The court held that under joint and several liability the plaintiff files only one Bill of Costs and may pursue any defendant, with a defendant who alone settles being left to an indemnity or contribution suit against co-defendants; the objection was dismissed. The court relied on Dubai Electronics v Total Kenya as approved in William Mukui Nyaga, and the statement in Kenya Airways v Mwaniki Gichohi. On VAT, following Pyramid Motors v Langata Gardens (also followed in KCB v Stagecoach Management), the court held VAT is not awardable in a party-and-party bill absent proof of a taxable supply, and item B on VAT was taxed off. Filing fees and a disbursement were taxed off for want of proof; service within Bungoma town was assessed at Kshs. 2,000 per item and e-mail service at Kshs. 1,400 per item, the latter guided by Aoro v Were; attendances without evidence were taxed off while items drawn to scale were allowed as drawn. The Bill was assessed at Kshs. 83,435, but applying Note 3 to Schedule 7 of the Advocates Remuneration Order and the 90%:10% apportionment of liability, the costs due to the Plaintiff were fixed at Kshs. 66,748.

Key legal issues

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01

Liability of a jointly and severally liable defendant for the plaintiff's assessed costs

Holding

The objection fails; all defendants are liable under one decree and one Bill of Costs, with a right of reimbursement inter se

Reasoning

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.

p. 2
02

Entitlement to VAT in a Party and Party Bill of Costs

Holding

VAT was taxed off; it is only awardable on proof of a taxable supply or in Advocate-Client bills

Reasoning

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.

p. 3
03

Assessment of individual items and costs where success is divided

Holding

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

Reasoning

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

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  • 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

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  1. 1.The 2nd Defendant's objection to settling costs recoverable from the 1st Defendant is dismissed
  2. 2.Item B on VAT is assessed off
  3. 3.Item 2 assessed off for want of proof
  4. 4.Item 6 (disbursement) assessed off for want of proof
  5. 5.Items 8 and 9 (service within Bungoma town) assessed at Kshs. 2,000 each
  6. 6.Items 10 to 16 (service by e-mail) assessed at Kshs. 1,400 each
  7. 7.Items 19 and 24 (attendances) assessed off for want of evidence
  8. 8.Items 20 and 21 assessed as drawn
  9. 9.Items 26 and 27 assessed at Kshs. 2,100 each
  10. 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

Authorities

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Legislation

  • Advocates Remuneration Order (ARO)Schedule 7, paragraph 10(i); Schedule 7(7)(ii); Note 3 under Schedule 7
  • Value Added Tax Actsection 5
  • Civil Procedure RulesOrder 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
    (supra) - citation not given in this judgment
  • 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/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

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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, "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.