Musa v Matheka (Civil Case E014 of 2022) [2025] KEMC 73 (KLR)
The bottom line
#A Kenyan magistrate awarded Ksh. 95,900 in case costs against a losing plaintiff, confirming that defended suits attract higher costs and undocumented expenses get nothing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.The main issue for determination concerns the costs payable to the defendant by the plaintiff.
Key legal issues
#Whether the dispute over the certificate of costs could be resolved by the court under Order 21 of the Civil Procedure Rules
Yes. The court applied Order 21 rules 9, 9A–9D, noting no agreement or fixing of costs, and assessed costs in accordance with the Advocates (Remuneration) Order.
The court found the decree undisputed but the costs disagreed upon. Order 21 rule 9 permits costs to be stated in a decree where agreed, fixed, certified or taxed. Rules 9A–9C set out the procedure of filing and serving a statement of costs and a response, with the court making appropriate orders within fourteen days, guided by the Advocates (Remuneration) Order under rule 9D(4).
The applicable scale and quantum of party and party costs
Higher scale applied because the suit was defended; Ksh. 65,000/= awarded given the suit was not complex.
The plaintiff's claim was not liquidated - an injunction and release of a motor vehicle - so paragraph 2 of the 7th Schedule applied. The Kshs. 50,000 cap applies to undefended suits; a defended suit warrants more, tempered by the absence of complexity, yielding Ksh. 65,000/=.
Whether witness expenses were payable
No award made for want of supporting documents.
Although attendances were quantified from the court record, no receipts or documents substantiated witness expenses. The procedure under Order 21 rule 9A requires supporting documents, and absent them no award was made.
Legal principles established
#- Where no specific sum is sued for or awarded, party and party costs fall under paragraph 2 of the 7th Schedule to the Advocates Remuneration Order, capped at Kshs. 50,000 for undefended suits but discretionary for defended suits
- The 'Higher Scale' applies to party and party costs in defended cases
- Supporting documents must be furnished to substantiate claims for costs such as witness expenses
Court orders
#- 1.Party and party costs on higher scale awarded at Ksh. 65,000/=
- 2.Application costs awarded at Ksh. 3,000/=
- 3.Court fees on suit awarded at Ksh. 4,100/=
- 4.Court attendances awarded at Ksh. 25,900/= (hearings 3 × 2,100 and mentions 14 × 1,400)
- 5.Decree and certificate of costs awarded at Ksh. 500/=
- 6.Total costs of Ksh. 98,500/= less Ksh. 2,600/= awarded to the plaintiff on 28/11/2022, leaving a balance of Ksh. 95,900/= due to the defendant/decree-holder
- 7.A Decree and Certificate of costs to issue to that effect
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 21 rules 8, 9, 9A–9D of the Civil Procedure Rules (taxation/assessment of costs)
Relief refused
#Witness expenses
No supporting documents furnished to prove witness expenses
Costs
Costs payable to the defendant/decree-holder assessed at a total of Ksh. 98,500/=, less Ksh. 2,600/= previously awarded to the plaintiff, leaving a balance of Ksh. 95,900/= due to the decree-holder; a Decree and Certificate of costs to issue to that effect.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
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.
No evidence was furnished to prove witness expenses. The law requires that supporting documents be furnished. In the absence of supporting documents, I make no award for witness expenses.
In awarding costs, the Court shall be guided by the Advocates (Remuneration) Order-see Oder 21 rule 9D (4) of the Civil Procedure Rules.
Balance due to the Decree-holder........Ksh. 95,900/= A Decree and Certificate of costs to issue to that efiect.
Issues in the judgment
#Date discrepancy: the judgment recites that judgment was delivered on 17/4/2023 and the suit was filed in 2022, but mentions a last attendance on 3/4/2025 and is dated 24 April 2025
The judgment does not state the case number or the names of the parties
Typographical errors in the judgment (e.g. 'plaintifi', 'Oder 21', 'efiect')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musa v Matheka (Civil Case E014 of 2022) [2025] KEMC 73 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/73/eng@2025-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.