Cherop v Auto Mega Ltd & another (Civil Suit E028 of 2025) [2026] KEMC 738 (KLR)
The bottom line
#A Bungoma court ruled that any defendant sued jointly can be made to pay the full legal costs, and claim reimbursement later.
What this practically means
#Executive summary
#Key legal issues
#Liability of one joint and several defendant for costs recoverable from a co-defendant
The objection by the 2nd Defendant was dismissed; where judgment is joint and several, the plaintiff files a single Bill of Costs and may pursue any defendant for the whole, with the paying defendant entitled to seek contribution or indemnity from co-defendants
The court relied on Dubai Electronics v Total Kenya as approved in William Mukui Nyaga, quoting the Kenya Airways v Mwaniki Gichohi definition of joint and several liability: one judgment and decree against two or more persons liable collectively and individually, without double recovery. The plaintiff may direct recovery at any tortfeasor; defendants may seek reimbursement from each other where only one pays.
Whether VAT is payable on Party and Party costs
VAT was assessed off (item B). VAT applies only to taxable supplies; Party and Party costs compensate the litigant, not the advocate, and no taxable supply exists between the parties
Relying on Pyramid Motors v Langata Gardens (as followed in Kenya Commercial Bank v Stagecoach Management), the court held that Party and Party costs are due to the litigant, not counsel; VAT is chargeable only on taxable supplies by a registered person, and the mere fact a law firm pays VAT does not entitle the party to VAT on the award.
Taxation of items: filing fees, service (physical and e-mail), and attendances
Items 2, 5 and 6 were taxed off for want of proof or duplication; physical service within Bungoma was assessed at Kshs. 2,000/= per item; e-mail service at Kshs. 1,400/= per item; a mention at Kshs. 1,400/= and subsequent hearings at Kshs. 2,100/= each per Schedule 7 of the ARO
The court applied Schedule 7 of the Advocates Remuneration Order for minimum fees on service and attendances, and Aoro v Were (Aburili, J) for the proposition that service via e-mail is still service attracting Kshs. 1,400/= under paragraph 10 of Schedule 7. Attendance fees for a police officer were disallowed as an illegality.
Effect of apportioned liability (90%:10%) on the quantum of costs
The assessed costs of Kshs. 85,135/= were reduced to Kshs. 68,108/= under Note 3 of Schedule 7 of the ARO, having regard to the Plaintiff's partial success
Note 3 under Schedule 7 provides that where success in a suit is divided, the scale may be distributed having regard to partial success on either side. Because liability was apportioned 90%:10% in the Plaintiff's favour, the court distributed the scale accordingly and fixed the recoverable costs at Kshs. 68,108/=.
Legal principles established
#- Where judgment is entered jointly and severally against defendants, the plaintiff files one Bill of Costs and may recover the assessed costs from any defendant; a defendant who alone settles may bring a contribution or indemnity suit against co-defendants
- VAT is not awardable on a Party and Party Bill of Costs unless a party proves it supplied taxable goods or services to the other party
- A litigant who pays a police officer to perform an official duty engages in an illegality from which he cannot benefit
- Where success in a suit is divided, the scale of costs may be distributed having regard to partial success on either side
Court orders
#- 1.The 2nd Defendant's objection that he cannot settle the Plaintiff's costs due from the 1st Defendant is dismissed
- 2.Items A, 1, 3, 4, 7, 18, 20-25 and 28-41 were assessed as drawn (drawn to scale)
- 3.Item B on VAT was assessed off
- 4.Item 2 was assessed off for want of proof
- 5.Item 5 was assessed off for being a repeat of item 4
- 6.Item 6 was assessed off for want of proof of the Kshs. 5,000/= police officer's court attendance fees
- 7.Items 8 and 9 (service within Bungoma town) were assessed at Kshs. 2,000/= each
- 8.Items 10-17 (service via e-mail) were assessed at Kshs. 1,400/= each
- 9.Item 19 (routine mention session) was assessed at Kshs. 1,400/=
- 10.Items 26 and 27 (subsequent hearing sessions) were assessed at Kshs. 2,100/= each
- 11.The Plaintiff's Party and Party Bill of Costs dated 12th February 2026 was assessed at Kshs. 85,135/= but, on account of the 90%:10% apportionment of liability, the costs due to the Plaintiff were determined at Kshs. 68,108/=
- Jurisdiction invoked
- Taxation of a Party and Party Bill of Costs under Schedule 7 of the Advocates Remuneration Order (ARO)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cherop v Auto Mega Ltd & another (Civil Suit E028 of 2025) [2026] KEMC 738 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/738/eng@2026-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.