Wambua & 4 others (Suing as the Chairman and officials of Mangelete Community Intergrated Development Orogramme - MCIDP) v Maingi & 3 others (Suing as the former members of Mangelete Community Intergrated Development Orogramme - MCIDP) (Civil Case 116A of 2023) [2026] KEMC 280 (KLR) (23 June 2026) (Ruling)

 **REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE'S COURT AT MAKINDU** **CIVIL CASE NO 116A OF 2023** **JOSEPH KAMUTI WAMBUA..............................................................................1st PLAINTIFF** **JOSHUA KATUTI MUNYAO………………………………………………………………………….…2ND PLAINTIFF** **JULIANA MWONGELI NDAMBU……………………………………………………………….……3RD PLAINTIFF** **JOSEPH MUNYAE MATI………………………………………………………………………………….4TH PLAINTIFF** **EMMA NDUNGE PETER………………………………………………………………………………….5TH PLAINTIFF** **(Suing as the Chairman and officials of Mangelete Community Integrated Development Programme-MCIDP)** **VERSUS** **SAMUEL KIILU MAINGI……………………………………………………...........................1ST DEFENDANT** **BENSON PETER WAMBUA……………………………………………………………………..….2ND DEFENDANT** **JONES KAKUNDE NDILE………………………………………………………………………….….3RD DEFENDANT** **JAPHETH MUENDO MUSYOKI…………………………………………………………………….4TH DEFENDANT** **(Sued as the former officials and members of Mangelete Community Integrated Development Programme-MCIDP)** **RULING** **THE SUBJECT** On 22/9/2025, theplaintiffs herein applied for the suit to be withdrawn pursuant to a notice of withdrawal that had been filed earlier. Parties agreed that the defendants be awarded costs of the suit. The matter was then marked as withdrawn with costs to the defendants. The defendants had already filed a statement of costs. The court directed that the same be served upon the plaintiffs. The plaintiffs later filed a response to the statement of costs, objecting to some of the items. The parties could not agree on the costs payable. The matter was then brought to the attention of the court for settlement. **MAIN ISSUE FOR DETERMINATION** The main issue for determination concerns the costs payable to the defendants by the plaintiffs. **THE DRAFT STATEMENT OF COSTS** The defendants filed a draft statement of costs containing five items with a total of Ksh. 917,030.51/=. **OBJECTION BY THE PLAINTIFFS** The plaintiffs filed ground of objection as follows: 1. There is no proof of filing fees for Ksh. 8,500/=; 2. The instruction fees claimed for Ksh. 450,000/= is untenable and notwithin the Advocates Remuneration Order; 3. There is no evidence of service of summons that were allegedly served upon the plaintiff at a cost of Ksh. 10,000/=; 4. Court attendance should be Ksh. 6,000/-; 5. Costs for decree and further costs are unsubstantiated; 6. The defendants are entitled to minimal costs since the matter did not proceed to hearing. **ANALYSIS AND DETERMINATION** I have perused the draft statement of costs filed by the defendants and considered the grounds of objection filed by the plaintiff. Order 21 rule 9 of the Civil Procedure Rules provides that where the amount of costs has been— (a) agreed between the parties; (b) fixed by the judge or magistrate before the decree is drawn; (c) certified by the registrar (Sub. Leg. Cap. 16); or (d) taxed by the court, the amount of costs may be stated in the decree or order. In this case, there is no agreement as to the costs payable and the costs were not fixed by the court. Order 21 rule 9A(1) of the Civil Procedure Rules provides that a party claiming costs at a Magistrates Court shall file a written request, statement of costs and supporting documents with the Court and serve it on the other parties with a breakdown of the costs sought. According to Order 21 rule 9B(2) thereof, once served with the written request, a statement of costs and supporting documents, the Respondent may file a response with the Court within seven days of service. Order 21 rule 9C(3) provides that the Court shall consider the written request, statement of costs and supporting documents filed by the parties within fourteen days of response by the respondent and make appropriate orders as to costs. In awarding costs, the Court shall be guided by the Advocates (Remuneration) Order-see Oder 21 rule 9D (4) of the Civil Procedure Rules. The plaintiffs’ claim was not liquidated. The plaintiffs sought an order of injunction and other orders against the defendants. The suit was filed in 2023. Paragraph 2 of the 7th Schedule to the Advocates Remuneration Order provides that: ***“In any suit or appeal by the nature of which no specific sum is sued for, claimed for, or awarded in the judgment (other than proceedings falling under paragraph 3 below); such costs as the court in its discretion but not less than Kshs. 20,000 if undefended or unopposed and (subject to any special order for good reason connected with the nature and importance or the difficulty or the urgency of the matter) not to exceed Kshs. 50,000.”*** Paragraph 1 thereof provides that the "Lower Scale" shall be applied in all cases where no defence or other denial of liability has been filed and the "Higher Scale" shall be applied in all other cases. The suit herein was defended. It therefore implies that a higher scale shall be applied for party and party costs. The maximum of Ksh. 50,000/= is for an undefended suit. In a suit such as this one, it should be higher. The suit herein was not complex. I therefore award **Ksh.** **65,000/=** as party and party costs. The defendants did not attach evidence of payment of court fees. I have however perused the file and in particular the payment receipts on the physical file as well as on the Case Tracking System. The defendants indicated the court fees as Ksh. 8,500/=. However, the receipts add up to Ksh. 14,000/=. I will award **Ksh. 14,000/=** for court fees. The defendants claim Ksh. 10,000/= as service costs. No evidence of the same was attached to the statement. I have perused the record. There is an affidavit of service sworn by one Isaac Makau Malonza on 13/3/2025 and filed in court on 17/3/2025. The same indicates that the process server travelled to Nthongoni area and other areas too. There is no other affidavit of service by the defendants. Given the fact that the plaintiffs were represented by counsel, most of the service was between counsel. I am aware that service between law firms is mostly by way of e-mail. Consequently, I award **Ksh. 5,000/=** for service. For court attendances, the record indicates that there were 20 attendances in total, including the last attendance on 28/5/2026. Out of the 20 attendances, there was no hearing. The total award for attendances is made up as follows: * Mentions- 1,400 × 20 = **28,000/=** The cost for decree and certificate for costs is **Ksh. 500/=**. I award the same. There are also costs that were awarded to the defendants following a Ruling on three applications that had been filed. The record indicates that the ruling on the three applications was delivered on 7/10/202. The costs on each application is Ksh. 3,000/=. I therefore award a total of Ksh. **9,000/=** on the applications. **DISPOSITION** In summary, the costs payable to the defendants are assessed as follows: 1. Party to party costs on higher scale………………………………………….Ksh. 65,000/= 2. Court fees on suit……………………………………………………………….…….Ksh. 14,000/= 3. Service of court process……………………………………………………..………Ksh. 5,000/= 4. Court Attendances………………………………………………………..………….Ksh. 28,000/= 5. Costs on applications……………………………………………………………….…Ksh. 9,000/= 6. Decree and certificate of costs…………………………………………………..….Ksh. 500/= Total…………………………………………………………………………………………..**Ksh. 121,500/=** A Decree and Certificate of costs to issue to that effect. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 23RD DAY OF JUNE, 2026.** **Y.A SHIKANDA** **SENIOR PRINCIPAL MAGISTRATE.**