https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/754

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **CIVIL SUIT NO. E177 OF 2025** **ANDREW NYONGESA WASIKE……………………………………………….………PLAINTIFF** **VERSUS** **BOM SA KABUCHAI GIRLS & 3 ANOTHER…………………………………….DEFENDANT** **RULING** 1. This ruling determines the 4th Defendant’s Party and Party Bill of Costs dated 17th April 2026. 2. Items 15 – 18 and 22 – 30 were assessed as drawn since the said items had been drawn to scale. 3. Items 2 and 6were assessed off for want of proof. **Instruction Fees** 1. The value of the subject matter is Kshs. 191,202/=. This suit was defended and proceeded to full hearing. Schedule 7(1) of the Advocates Remuneration Order (ARO) provides for minimum instruction fees of Kshs. 40,000/=. 2. Considering the time taken to conclude this matter, this court finds the instruction fees of Kshs. 45,000/= reasonable. The same is awarded as drawn. **Value Added Tax** 1. The Plaintiff prayed for an award of V.A.T in the instant Party and Party Bill of Costs. 2. The costs in a Party to Party Bill of Costs are costs due to a litigant, not a 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; *“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”* 1. The holding in the Pyramids Motors Limited case (supra) was also followed in **Kenya Commercial Bank Limited v Stagecoach Management Limited [2017] eKLR.** 2. 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. V.A.T cannot be awarded in a Party and Party Bill of Costs. 3. The was no supply of taxable goods or services between the parties herein for the Plaintiff to seek V.A.T from the Defendants. 4. The mere fact that a law firm representing a party pays V.A.T does not entitle a party to an award of V.A.T in a party and party Bill of Costs. 5. For the reasons above, item B on V.A.T was assessed off. **Filing Fees** 1. Items 1, 3 – 5 were assessed as drawn, as evidenced by the court fees receipts on record. **Service** 1. Items 7 and 8 involved service in Kabuchai within Bungoma County, barely nine (9) kilometres from Bungoma town, where the Plaintiff’s advocate's office and Bungoma Law Courts are situated. 2. Schedule 7 (10)(i) provides for a minimum of service fees of Kshs. 1,400/= for service within three kilometers of subordinate court or district registry of the subordinate court. Guided by this authority and considering the distance between Kabuchai and Bungoma, this court assessed items 7 and 8 at Kshs. 2,000/= each. 3. Service in items 9 – 12 was conducted via e-mail. That is substituted service. Schedule 7 (10)(iii) provides that where service is by post or by any other mode of Substituted service, the actual expense incurred for the service ought to be charged. There is no evidence on record on the actual expense incurred by the Plaintiff in effecting service via email in items 9 – 12. 4. Be that as it may, this court places reliance on **Aoro v Were (Miscellaneous Reference Application E019 of 2022) [2022] KEHC 14628 (KLR),** Aburili, J, where 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.* 1. Guided by the authority above, items 9 – 12 were assessed at Kshs. 1,400/= each. **Attendances** 1. Items 14 were assessed off since there is no evidence on record to show that the 4th Defendant or his counsel attended court on those occasions. 2. Items 13, 19, 20 and 21 were assessed at Kshs. 1,400/= each per schedule 7(6) of the ARO since the court sessions on those occasions were largely mentions where no hearing took place. **DETERMINATION** 1. The upshot of the foregoing is that the Plaintiff’s Party and Party Bill of Costs dated 17th April 2026 is assessed at Kshs. 81,500/=. 2. However, it is noteworthy that liability in this matter was apportioned in the ratio of 90%:10% in favour of the Plaintiff. 3. 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.* 1. Guided by the authority above, the costs due to the Plaintiff are Kshs. 73,350/= **Read, signed, and delivered in open court at Bungoma, this 23rd day of June 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Ms. for the Plaintiff Mr. for the 4th Defendant C/A: Rioba