https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/697

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **CIVIL SUIT NO. E521 OF 2024** **KEVIN WAFULA SIMIYU……………………………………………….………PLAINTIFF** **VERSUS** **SAMUEL GATHUNGU MUTHEE & ANOTHER…………………………DEFENDANTS** **RULING** 1. This ruling determines the Plaintiff’s Party and Party Bill of Costs dated 17th March 2026. This court has given due regard to the Plaintiff’s Party and Party Bill of Costs as well as the 2nd Defendant’s written submissions on record. 2. The items objected to by the 1st Defendant have been assessed as set out below. **Value Added Tax** 1. Item 2 was assessed off in line with the holding 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.** **Service** 1. Items 5 and 6 were assessed off for want of proof since there is no evidence on record that the Plaintiff served upon the Defendants Summons to Enter Appearance and related documents in Bungoma. 2. Items 7 – 11 were assessed as drawn 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. Items 18 was assessed off since there is no evidence on record to show that the Plaintiff or his counsel attended court on that day. 2. Items 22 – 24 were assessed at Kshs. 1,400/= each per schedule 7(6) of the Advocates (Remuneration) Order (ARO). **DETERMINATION** 1. The upshot of the foregoing is that the Plaintiff’s Party and Party Bill of Costs dated 17th March 2026 is assessed at Kshs. 57,800/=. 2. However, it is noteworthy that liability in this matter was apportioned in the ratio of 50%:50% 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. 28,900/= **Read, signed, and delivered in open court at Bungoma, this 25th 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