Legal Guides

Advocate-Client Bill of Costs in Kenya: Fees, Taxation and References

An advocate-client bill of costs is not merely an invoice with a court stamp. It is the document through which a Kenyan advocate asks a taxing officer to assess professional fees where the amount has not been conclusively fixed by a valid fee agreement. The client may challenge the retainer, the applicable scale, the value of the subject matter, particular attendances, disbursements and whether work was actually done. The advocate must prove the legal and factual basis for each material item.

The process matters to both sides. An advocate who files too early, uses the wrong schedule or cannot prove delivery of the bill may delay recovery. A client who ignores service may face taxation in absence, a certificate of costs and an application for judgment. The safest approach is to reconstruct the retainer and the work before arguing about the total.

First identify what regulates the fee

Part IX of the Advocates Act and the Advocates (Remuneration) Order supply the central framework. The Order covers remuneration in contentious and non-contentious work, taxation and the objection procedure. Its schedules do not use one universal formula: litigation, conveyancing, commercial documents, intellectual-property work and other business can attract different methods.

Before applying a schedule, identify the file, client, advocate, instructions and work category. A company and its director are not automatically the same client. A person who introduced the client is not necessarily liable for the fees. A change of advocates may create separate retainers. Where one bill combines unrelated suits or transactions, the parties should check whether the items can fairly and procedurally be taxed together.

Verification also matters at the start of a retainer. The practical guide on checking an advocate before paying legal fees explains how identity and practising status can be confirmed. Taxation determines remuneration; it does not cure work unlawfully performed by an unqualified person.

A written fee agreement may change the route

Section 45 of the Advocates Act permits an advocate and client to make a remuneration agreement, subject to section 46. The document, signature, scope and timing require close examination. An email discussing estimates, a deposit request or a fee note is not automatically a complete agreement. Ask whether the client or authorised agent signed, what matters and stages were included, whether disbursements and tax were addressed, and what happens if instructions end early.

A valid agreement can be binding, but the Act gives the court powers where an agreement is challenged as harsh, unconscionable, exorbitant or unreasonable. Section 46 also identifies arrangements that are invalid, including agreements that improperly restrict professional liability or provide remuneration on prohibited terms. The answer is therefore not obtained by finding any document headed “fee agreement”; its terms and statutory validity must be analysed.

If the client says the signed agreement governs the entire fee, produce the complete instrument and proof connecting it to the disputed work. If the advocate says it covered only an initial stage, show later instructions, correspondence and the boundary between agreed and taxable work. A taxation should not silently replace a binding agreement, but an incomplete agreement should not be stretched to work it never covered.

Retainer is a separate and sometimes decisive issue

Retainer means the authority to act, not simply the amount payable. It may be express or arise from proved conduct, but the person claiming fees must connect the alleged client to the instruction. Useful evidence includes an engagement letter, board or trustee authority, emails giving instructions, pleadings signed or approved, attendance notes, payments on account and correspondence in which the client accepts the representation.

A client disputing retainer should state the precise case. Was another entity the client? Was authority limited to advice rather than litigation? Did the officer who instructed the advocate lack authority? Was the advocate appointed by an insurer, lender, estate representative or lead counsel? General denial is weak where years of correspondence and accepted representation point the other way.

Recent decisions continue to distinguish the amount of costs from the existence or scope of retainer. Section 51(2) allows judgment on a certificate where retainer is not disputed. A genuine retainer dispute may require judicial determination before the certificate can be converted into judgment; the taxing officer’s certificate is final as to amount unless altered or set aside, not a universal answer to every contractual issue.

Documents needed before filing or responding

An advocate should assemble a chronological file rather than draft the bill from memory. The core package commonly includes:

• the engagement letter, fee agreement and authority documents;
• the pleadings, judgment, settlement or transactional instruments showing the nature and value of the work;
• instructions, opinions, correspondence, attendance notes and filed documents;
• receipts and vouchers for court fees, searches, travel, experts and other disbursements;
• fee notes, the final bill, proof of delivery and any response;
• a ledger of deposits, payments, credits, withholding tax and money held on account; and
• orders on costs and records showing whether the underlying matter has concluded.

The client should obtain the same documents and prepare an item-by-item response. Mark work that is duplicated, unsupported, outside instructions, already paid or placed under an inapplicable schedule. Separate a disagreement about quality or alleged negligence from a calculation objection. Those issues may interact, but the taxing officer’s jurisdiction is principally directed to remuneration.

Delivery of the bill and recovery proceedings

Section 48 generally prevents an action to recover an advocate’s costs until one month has expired after a bill has been delivered to the client. Delivery may be personal, by registered post to the last known business or residential address, or through another method that can be proved under the statute and procedural directions. If the client is likely to dispute receipt, preserve the exact bill, covering letter, address, transmission record and acknowledgement.

The waiting period is not empty formality. It identifies what amount was demanded and gives the client an opportunity to pay, seek clarification or contest the fees before suit. In urgent circumstances section 48 contains a protective route where there is probable cause to believe the client is about to leave Kenya or do another act that may defeat or delay recovery, but the facts must justify exceptional intervention.

Do not confuse a suit for recovery with taxation. Depending on the dispute, an advocate may file an advocate-client bill for assessment and later seek judgment on the certificate, or pursue a recovery action in which the quantum is challenged and taxation becomes necessary. The correct route depends on the fee agreement, retainer dispute, procedural history and relief sought.

What happens at taxation

The bill should be itemised in the prescribed form and served with the notice of taxation. At the hearing, the taxing officer considers the applicable schedule, work proved, importance and complexity of the matter, value of the subject matter where legally ascertainable, responsibility assumed, time reasonably spent and other factors permitted by the Order. The exercise is judicial, not arithmetic alone.

Instruction fees often carry most of the dispute. The starting point must come from the correct schedule and proven subject matter, not a figure selected because the litigation was commercially important. Where value can be determined from pleadings, judgment or settlement, those documents may control the calculation. Where it cannot, discretion must be exercised on relevant material and explained. Complexity should be demonstrated by the issues, record and responsibility, not asserted through adjectives.

Attendances and documents should correspond to the file. A hearing that did not proceed, a short mention and a full-day trial are different events. Routine letters should not be multiplied without proof. Disbursements require evidence and must be distinguished from professional remuneration. Tax and interest should be claimed only on a lawful basis and calculated transparently.

The advocate-client scale may include the increase prescribed by the applicable schedule over party-and-party costs, but that does not make a party-and-party certificate conclusive of the client’s liability. Party-and-party taxation allocates recoverable litigation costs between opposing parties. Advocate-client taxation assesses what the client owes the advocate. The parties, evidence and purpose differ.

Payments, interest and a clean reconciliation

Every amount received must be reconciled. A deposit may have funded court fees, professional fees or both. A payment by a third party may or may not discharge the client’s liability. Withholding tax certificates and credit notes should be produced. The bill, submissions and eventual application for judgment must not present a gross figure as wholly unpaid when the ledger shows credits.

Paragraph 7 of the Remuneration Order permits interest at the prescribed rate on disbursements and costs after the stated period from delivery of the bill, subject to its conditions. A party claiming interest should identify the delivered bill, delivery date, rate, principal and calculation period, and show that the claim was raised before payment or tender where required. Compound interest or interest from an invented date should be resisted.

A useful reconciliation has five columns: item or certificate, amount allowed, tax if applicable, payments and credits, and balance. If there are several files, keep a separate schedule for each before producing a consolidated summary. This prevents a payment in one matter being applied opportunistically to another.

Challenging the taxing officer’s decision

Paragraph 11 of the Remuneration Order creates the reference procedure. A party objecting to taxation must act promptly: the notice identifying the disputed items is ordinarily given within fourteen days after the decision. The taxing officer records and supplies reasons, after which the objector ordinarily has fourteen days to apply to a judge by chamber summons, setting out the grounds of objection. The judge may enlarge time, including after expiry, but delay requires a proper explanation and should never be treated as automatic.

The objection must target identified items and an error capable of review. Examples include using the wrong schedule, relying on an unproved subject value, ignoring a binding agreement, allowing work outside the retainer, failing to credit payment or exercising discretion on irrelevant considerations. A reference is not improved by contesting every line or repeating that the total “feels too high”.

The judge does not normally retax the bill merely because another figure is possible. Intervention is associated with an error of principle or an award so manifestly high or low that it indicates an improper exercise of discretion. The court may remit items for reconsideration with directions or, where the record permits, make an appropriate determination. An appeal onward requires attention to the leave and timing provisions in paragraph 11.

A reference is different from a review under Order 45. The source of jurisdiction, deadline and test are not interchangeable. Use the specialist remuneration procedure unless a distinct legal basis genuinely applies.

Certificate of costs and judgment

After taxation, the taxing officer issues a certificate. Under section 51(2), that certificate is final as to the amount covered unless set aside or altered by the court. Where retainer is not disputed, the court may enter judgment for the certified sum with costs. The application should exhibit the certificate, address service and payments, and explain any claim for interest.

A client served with the application should not assume that a pending complaint against the advocate automatically stays it. Identify whether a reference, stay application, retainer dispute, payment or set-off provides a legally relevant answer and obtain orders where needed. Equally, an advocate should not use a certificate to recover from a person who was never the client or to ignore a subsisting challenge.

Once judgment is entered, ordinary execution rules may become relevant. The overview of judgment enforcement in Kenya explains that later stage. Taxation should nevertheless be completed accurately before the dispute is converted into enforcement pressure.

Common mistakes that increase cost

Advocates commonly weaken a bill by failing to prove the retainer, mixing files, omitting delivery evidence, using a current scale for work governed by another version, claiming unsupported disbursements, overlooking payments or filing for judgment while a genuine retainer dispute remains unresolved. Clients commonly wait until judgment, deny all instructions despite a long paper trail, miss the paragraph 11 timetable, challenge the total without identifying items or confuse dissatisfaction with a legally framed taxation objection.

Settlement remains possible. The parties can agree undisputed items, exchange a verified ledger and narrow the reference to the real issue. Record whether the settlement includes tax, interest, costs of taxation and all files. A vague “full and final” payment invites another dispute if the matters covered are not named.

If you need to recover or challenge legal fees, request an early file-based assessment. A Kenyan advocate can examine the retainer, fee agreement, applicable schedule, work record, delivery, payments and deadlines; prepare the bill or objections; and protect the right to a reference before the fourteen-day stages are lost.