https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/616

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **CIVIL CASE NO. E171 OF 2025** **BONFACE KHALWALE FESTUS…………..…………..………….……………………………….PLAINTIFF** **VERSUS** **JANE WAMBUI INENGU…….……………….…………..…………………DEFENDANT** **SHIVJI MURJI KERAJ…………………………………………………3RD PARTY** **RULING** 1. This ruling determines the Plaintiff’s Party and Party Bill of Costs dated 05th May 2026. 2. Items A, 1, 3-4, 6, 12-15, 17 and 19 – 26 were assessed as drawn since the said items were drawn to scale. **Value Added Tax** 1. VAT is chargeable where a party supplies taxable goods or services to another party. There was no taxable supply of goods and services between the Plaintiff and the Defendants. The costs arising from this ruling are not the Plaintiff’s counsel’s income which attracts VAT but the Plaintiff’s costs of the suit. The costs of the suit due to the Plaintiff herein cannot thus attract VAT. 2. Therefore, item B was assessed off in line with the holding in **Pyramid Motors Limited vs Langata Gardens Limited (2015) eKLR** and **Kenya Commercial Bank Limited v Stagecoach Management Limited [2017] eKLR.** **Filing Fees** 1. Items 2 and 5 were assessed off for want of proof. 2. Item 4 was assessed off for want of proof. **Service** 1. Item 7 was assessed at Kshs. 1,400/= per Schedule 7(10)(i) of the Advocates (Remuneration) Order (ARO). 2. Item 8 was assessed off for being a repeat of item 7. 3. Item 9 was assessed off for lack of a receipt to evidence the alleged expenditure/disbursement. 4. Items 10 – 11 involved service via e-mail. The said items were assessed at Kshs. 1,400/= each per the holding in **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.”* **Attendances** 1. Item 16 was assessed at Kshs. 1,200/= per Schedule 7(6) of the ARO. 2. Item 18 was assessed at Kshs. 2,100/= per Schedule 7(7)(ii) of the ARO. **Drawing and Filing of Affidavits of Service** 1. Items 22 – 26 were assessed at Kshs. 1,000/= each per schedule 7(11) of the ARO. **DETERMINATION** 1. The upshot of the foregoing is that the Plaintiff’s Party and Party Bill of Costs dated 05th May 2026 is assessed at Kshs. 99,185/=. 2. However, it is noteworthy that liability in this matter was apportioned in the ratio of 50%:50% between the Plaintiff and the Defendant. 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. Given the above authority, the costs due to the Plaintiff are Kshs. 49,592.50/= **Read, signed, and delivered in open court at Bungoma this 21st day of July 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Mr. Bw’onchiri for the Plaintiff C/A: Mr. Rioba