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MagistratePartially AllowedBungoma CMC CC Nos. E267 and E268 of 2025· [2026] KEMC 775 (KLR)

Barasa & another v Abdullahi & another (Civil Case E267 & E268 of 2025 (Consolidated)) [2026] KEMC 775 (KLR)

Chief Magistrate's Court at Bungoma
23 July 2026
578 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 the plaintiffs' claimed legal costs to Kshs. 71,600 each, confirming that e-mail service counts and unproven or future expenses won't be paid.

What this practically means

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Executive summary

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This is a first-instance taxation ruling by the Senior Resident Magistrate's Court at Bungoma determining the Plaintiffs' Party and Party Bills of Costs dated 08th April 2026 filed in Bungoma CMC CC Nos. E267 and E268 of 2025, which were considered together as a series since they sought similar costs from similar proceedings. The Defendants filed a Replying Affidavit objecting to various items. On instruction fees, the court applied the Schedule 7(5) minimum of Kshs. 3,000/= for an application but assessed item 2 at Kshs. 5,000/= each given the nature of the application dated 09th December 2025 and the time taken to prosecute it. Attendance items 5 and 8 were allowed at Kshs. 1,400/= each under Schedule 7(6) because no hearing took place on those occasions. Service items at Kshs. 10,000/= each were allowed for item 9, guided by the distance between Bungoma and Mombasa and Schedule 7(10). E-mail service items (11 and 12) were allowed at Kshs. 1,400/= each, following Aburili, J's holding in Aoro v Were that e-mail service remains valid service drawing that fee. Items 10 and 13 were assessed off - the mention notice was unnecessary as the date was taken by consent, and item 13 lacked proof. Disbursements (item 18) were disallowed as not yet incurred but noted as recoverable in execution upon proof of payment. The Bills were each assessed at Kshs. 71,600/=.

Key legal issues

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01

Minimum instruction fees for prosecuting or defending an application

Holding

Instruction fees for the application were raised above the Kshs. 3,000/= minimum to Kshs. 5,000/= each, considering the nature of the application and the time taken to prosecute it

Reasoning

Schedule 7(5) of the Advocates (Remuneration) Order prescribes a minimum instruction fee of Kshs. 3,000/= for prosecuting or defending an application. The taxing court exercised its discretion to assess item 2 at Kshs. 5,000/= each in both Bills, taking into account the nature of the application dated 09th December 2025 and the time taken to prosecute it.

p. 1
02

Attendance fees where no hearing took place

Holding

Attendance items 5 and 8 assessed at Kshs. 1,400/= each per Schedule 7(6) of the ARO because no hearing took place on those occasions

Reasoning

The court applied Schedule 7(6) of the Advocates (Remuneration) Order to attendance items. Where the court record showed that no hearing took place on the occasions concerned, only the basic attendance fee of Kshs. 1,400/= was allowable per item, and higher fees were not justified.

p. 1
03

Cost of service by e-mail

Holding

Service by e-mail is valid service attracting Kshs. 1,400/= per item under Schedule 7(10), following Aoro v Were

Reasoning

The court adopted Aburili, J's holding in Aoro v Were that Order 5 of the Civil Procedure Rules applies mutatis mutandis to service of other court processes, and that e-mail service, necessitated by the Covid-19 pandemic's restrictions on personal and postal service, remains valid service drawing Kshs. 1,400/= under paragraph 10 of Schedule 7 of the ARO. Items 11 and 12, which involved e-mail service, were therefore assessed at Kshs. 1,400/= each.

p. 2
04

Allowability of disbursements not yet incurred

Holding

Disbursements not yet incurred at taxation are disallowed but recoverable during execution upon proof of payment

Reasoning

Item 18 claimed disbursements that the Plaintiffs had not yet incurred at the date of assessment. The court held such claims premature at taxation; the amounts were assessed off, with the Plaintiffs entitled to recover them during execution once proof of actual payment is adduced.

p. 2

Legal principles established

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  • Service via e-mail is valid service and attracts an award of Kshs. 1,400 under Schedule 7(10) of the Advocates (Remuneration) Order

Court orders

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  1. 1.Items 2 in both Bills of Costs are assessed at Kshs. 5,000/= each
  2. 2.Items 5 and 8 in both Bills of Costs are assessed at Kshs. 1,400/= each
  3. 3.Items 9 in both Bills of Costs are assessed at Kshs. 10,000/= each
  4. 4.Items 10 in both Bills of Costs are assessed off
  5. 5.Items 11 and 12 in both Bills of Costs are assessed at Kshs. 1,400/= each
  6. 6.Items 13 in both Bills of Costs are assessed off for want of proof
  7. 7.Item 18 in both Bills of Costs is assessed off, such costs recoverable during execution upon proof of payment
  8. 8.The Plaintiffs' Party and Party Bills of Costs dated 08th April 2026 are assessed at Kshs. 71,600/= each
Jurisdiction invoked
Taxation of Party and Party Bills of Costs under the Advocates (Remuneration) Order, Schedule 7

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 & another v Abdullahi & another (Civil Case E267 & E268 of 2025 (Consolidated)) [2026] KEMC 775 (KLR)", Case Analysis (2026). Bungoma CMC CC Nos. E267 and E268 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/775/eng@2026-07-23

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