REPUBLIC OF KENYA IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA CIVIL SUIT NO. E024 OF 2025 WINROSE NASIMIYU……………………………………………….……….PLAINTIFF VERSUS AUTO MEGA LIMITED & ANOTHER…………………………………………..DEFENDANT RULING 1. This ruling determines the Plaintiff’s Party and Party Bill of Costs dated 12th February 2026. 2. Before assessing the costs due to the Plaintiff, it is imperative to address an objection raised by the 2nd Defendant on whether they should meet the costs due to the Plaintiff recoverable from the 1st Defendant. 3. Judgment in this matter was entered jointly and severally against the Defendants. The law in this jurisdiction is that where judgment is entered jointly and severally against the Defendants, the Plaintiff does not file separate Bills of Costs against each of the Defendants. The Plaintiff only files one Bill of Costs for assessment. 4. Upon assessment of their Bill of Costs, the Plaintiff has the liberty to pursue the Defendants jointly or separately for the recovery of the assessed costs. In the event the Plaintiff recovers his costs from one of the Defendants, the Defendant who settled the costs of the suit due to the Plaintiff alone is usually at liberty to file a contribution or an indemnity suit for the recovery of the costs he settled alone, which were to be settled by his co-defendants from his co-defendant(s). 5. To buttress the position taken by this court regarding the 2nd Defendant’s objection, this court places reliance on Dubai Electronics v Total Kenya & 2 Others High Court (Milimani Commercial and Admiralty Division) Civil Case No. 870 of 1998 cited with approval in William Mukui Nyaga v Joseph Kimemia Muthondu & 2 others [2020] KEHC 8936 (KLR), where the court stated:
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Clearly therefore where you have joint liability all the tortfeasors are and each one of them is liable to settle the full liability. However, in a purely several liability each tortfeasor is only liable to settle the sum due to the tune of his liability. Where, however, the liability is joint and/or several the plaintiff has the option of either directing his claim against any one of the tortfeasors or making his claim against each one of the tortfeasors according to their individual liability. Either way he cannot recover more than the total sum decreed. However, the defendants are entitled to reimbursement from the co-defendants in the event that the plaintiff only opts to recover from one of them. That is my understanding of joint and several liability. In the case of Kenya Airways Limited vs. Mwaniki Gichohi (supra) Ringera, J (as he then was) stated as follows: “The concept of joint and several liability comprehends one judgement and decree against two or more persons who are liable collectively and individually to the full extent of such decree; however double compensation is not allowed and accordingly whatever portion of the decree is recovered against one of such defendant cannot be recovered from the other defendant(s).” (Emphasis added) 6. The foregoing shows that the 2nd Defendant’s objection that he cannot settle the Plaintiff’s costs due from the 1st Defendant lacks any limbs to stand on in law; the same is dismissed. 7. Save for the items addressed in this ruling, the rest of the items in the instant Bill of Costs were assessed as drawn since the said items were drawn to scale. Value Added Tax 8. The Plaintiff prayed for an award of Value Added Tax (VAT) in the instant Party and Party Bill of Costs. 9. The costs in a Party to Party Bill of Costs are costs due to a litigant, not counsel representing a litigant. This begs the question of whether a litigant is entitled to a claim for VAT during the assessment of their costs. This question was answered in Pyramid Motors Limited vs Langata Gardens Limited (2015)eKLR, where J.L. Onguto, J (as he then was) rendered himself thus;
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“On the final issue of VAT, I hold the simple view that in allowing the same the Master erred under the Value Added Tax Act, 2013 particularly section 5 thereof. Value Added Tax (VAT) is chargeable in taxable supply made by any registered person. There was no taxable supply of either goods or services made to the Applicant herein by the Respondent herein. The Bills herein concerned Party and Party costs and VAT could then not apply as neither party fetched nor supplied services to the other. True, legal services were rendered but it is not the Advocate who was being compensated herein. The Master could only have awarded VAT if the Bills were Advocate- Client Bills or if there was tendered evidence before the Master that the Plaintiff had paid VAT and was consequently entitled to indemnity. But yet that again is also debatable whether the Plaintiff was a vatable person. I would vacate the award on VAT as the Master erred. In the result, I would not return the Bills to the master for re-assessment but would direct that the item of VAT be completely and wholly taxed off” 10. The holding in the Pyramids Motors Limited case (supra) was also followed in Kenya Commercial Bank Limited v Stagecoach Management Limited [2017] eKLR. 11. This court’s understanding of the authorities above is that unless a party proves that it supplied taxable goods and services to the other party. VAT cannot be awarded in a Party and Party Bill of Costs. 12. The mere fact that a law firm representing a party pays VAT does not entitle a party to an award of VAT 13. For the reasons above, item B on VAT was assessed off. Filing Fees 14. Item 2 was assessed off for want of proof. 15. Item 6 is a disbursement. In the absence of a receipt to evidence such an expenditure, the said item was assessed off for want of proof. Service 16. Service in items 8 & 9 was conducted within Bungoma town. Guided by schedule 7 (10) (i) of the ARO, which provides for a minimum fee of Kshs. 1,400/= for such service, items 8 & 9 were assessed at Kshs. 2,000/= each.
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17. Service in items 10 – 16 was conducted via e-mail. In Aoro v Were (Miscellaneous Reference Application E019 of 2022) [2022] KEHC 14628 (KLR), Aburili, J, rendered herself as follows on the cost of service via e-mail: 53.The starting point herein is to point out that whereas order 5 of the Civil Procedure Rules relates to service of summons, it applies mutatis mutandis to service of other court processes, which include applications and related documents. This provision, it should be noted, was necessitated by the advent of Covid-19 pandemic which made it impossible for personal and even postal service of documents or court processes. 54.For the above reasons, I hold that service via e-mail is still service and draws an award of Kshs. 1,400 in line with Paragraph 10 of schedule 7 of the Advocates Remuneration Order. I find no error on the part of the taxing officer in awarding the respondent items 9,10,24,33,38,41,42,45 as drawn. Accordingly, the objection thereto is found to be devoid of any merit. 18. Guided by the authority above, items 10 – 16 were assessed at Kshs. 1,400/= each. Attendances 19. Items 19 and 24 were assessed off since there is no evidence on record of such court sessions having taken place. 20. Items 20 & 21 were assessed as drawn as they were drawn to scale. 21. Items 26 & 27 were subsequent hearing sessions after the first hearing session hence they were each assessed at Kshs. 2,100/= per schedule 7(7) (ii) of the ARO. DETERMINATION 22. For the reasons above, the Plaintiff’s Party and Party Bill of Costs dated 12th February 2026 is assessed at Kshs. 83,435/=. 23. However, it is noteworthy that liability in this matter was apportioned in the ratio of 90%:10% in favour of the Plaintiff. 24. Note 3 under Schedule 7 of the ARO provides thus: Where success in a suit is divided, the scale may be distributed having regard to partial success on either side. 25. Given the above authority, the costs due to the Plaintiff are Kshs. 66,748/=
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Read, signed, and delivered in open court at Bungoma, this 30th day of April 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Wanyama for the Plaintiff Mr. Kariuki for the 2nd Defendant C/A: Rioba
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