REPUBLIC OF KENYA IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA CIVIL SUIT NO. E012 OF 2025 SAMSON ITONDE TUMBO.………………………………………………. ……….PLAINTIFF VERSUS BOARD OF MANAGEMENT ST. JUDE MWANDA SECONDARY SCHOOL………………………….. ……………………………………………….DEFENDANT RULING This ruling determines the 1st Defendant’s Party and Party Bill of Costs dated 04th March 2025. On 13th November 2025, Mr. Anwar; counsel for the Plaintiff, appeared before this court and conceded that the 1st Defendant’s Party and Party Bill of Costs dated 04th March 2025 had been drawn to scale. He urged this court to assess the said Bill of Costs as drawn. On the same date, this court brought to the attention of Mr. Anwar that, given his client's intention to enforce a Certificate of Order and a Certificate of Costs issued against a government entity (2 nd Defendant) in Bungoma CMCC No. E216 of 2019, this matter ought to have been filed before the High Court through Judicial Review proceedings for an order of mandamus requiring the Board of Management of St. Jude Mwanda Secondary School’s accounting officer to satisfy the said Certificate of Order and Certificate of Costs. Kitale CMC Civil Suit No. E434 of 2022 Page 1 of 4 Ruling
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Mr. Anwar conceded that the correct procedure for enforcing a Certificate of Order against a government entity is through Judicial Review proceedings before the High Court for an order of mandamus. The foregoing shows that this matter is not properly before this court for want of jurisdiction. Mr. Anwar also urged this court to take note of the fact that the Defendants herein were represented by the same advocate when making an order for payment of costs against the Plaintiff in this matter. Section 62 of the Advocates Remuneration Order provides guidance on the Assessment of Party and Party Costs where one advocate represents two or more Plaintiffs or Defendants. The said section provides thus:Where the same advocate is employed for two or more plaintiffs or defendants, and separate pleadings are delivered or other proceedings had by or for two or more such plaintiffs or defendants separately, the taxing officer shall consider in the taxation of such advocate’s bill of costs, either between party and party or between advocate and client, whether such separate pleadings or other proceedings were necessary or proper, and if he is of opinion that any part of the costs occasioned thereby have been unnecessarily or improperly incurred, the same shall be disallowed. A reading of the provisions of the law reproduced above reveals that where one advocate represents two or more Plaintiffs or Defendants in the same Kitale CMC Civil Suit No. E434 of 2022 Page 2 of 4 Ruling
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case, the question of whether the advocate drew separate pleadings for the different parties or represented the different parties separately is important in the assessment of costs in a case. In this instant case, the Defendants were represented by Mr. Wasilwa. There is no indication that Mr. Wasilwa represented the Defendants separately. Further, nothing on record shows that Mr. Wasilwa drew different pleadings for each Defendant. Therefore, the Defendants herein did not incur distinct costs in defending this case. It is against this backdrop that this court finds and holds that, given that this matter must suffer the fate of being struck out for want of jurisdiction, the 2 nd Defendant will not be entitled to costs separate from the costs assessed herein in favour of the 1st Defendant. DETERMINATION For the reasons above, this court makes the following orders: a) This matter is struck out for want of jurisdiction b) The costs due to the Defendants are assessed at Kshs. 35,850/=. c) Certificate of Costs and Decree to issue upon payment of requisite court fees d) File closed READ, SIGNED and DELIVERED in open court at Bungoma this 04 th day of December 2025 T.O. OMONO Kitale CMC Civil Suit No. E434 of 2022 Page 3 of 4 Ruling
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SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Wasilwa for the Defendants C/A: Mr. Rioba Kitale CMC Civil Suit No. E434 of 2022 Page 4 of 4 Ruling
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