Kenyan legislation

The Advocates (Remuneration) Order

Edition: 2022-12-31 · In force

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Part I – GENERAL MATTERS

1. Citation

This Order may be cited as the Advocates (Remuneration) Order.

2. Application of Order

This Order shall apply to the remuneration of an advocate of the High Court by his client in contentious and non-contentious matters, the taxation thereof and the taxation of costs as between party and party in contentious matters in the High Court, in subordinate courts (other than Muslim courts), in a Tribunal appointed under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap. 301) and in a Tribunal established under the Rent Restriction Act (Cap. 296).[L.N. 56/1972, s. 2, L.N. 62/1979, s. 3.]

3. Scale of fees

No advocate may agree or accept his remuneration at less than that provided by this Order.[L.N. 37/1977, s. 2, L.N. 62/1979, s. 4, L.N. 159/2006, s. 2.]

4. Additional remuneration for exceptional dispatch

(1)Where any business requires and receives exceptional dispatch, or, at the request of the client, is attended to outside normal business hours the advocate shall be entitled to receive and shall be allowed such additional remuneration as is appropriate in the circumstances.

(2)Such additional remuneration shall, except in special circumstances, be allowable only as between advocate and client.[L.N. 62/1979, s. 5.]

5. Special fee for exceptional importance and complexity

(1)In business of exceptional importance or of unusual complexity an advocate shall be entitled to receive and shall be allowed as against his client a special fee in addition to the remuneration provided in this Order.

(2)In assessing such special fee regard may be had to—

(a)the place at or the circumstances in which the business or part thereof is transacted;

(b)the nature and extent of the pecuniary or other interest involved;

(c)the labour and responsibility entailed; and

(d)the number, complexity and importance of the documents prepared or examined.

6. Security from client for advocate’s remuneration

An advocate may accept from his client and a client may give to his advocate security for the amount to become due to the advocate for remuneration and disbursements in business to be transacted or being transacted by him and for interest as hereinafter provided on such amount, but so that interest is not to commence until the amount due is ascertained either by agreement or taxation:Provided that, for the purpose of this rule, the amount of such costs and disbursements shall be deemed to have been agreed as at the expiry of one calendar month from the date of delivery of the bill unless the client shall within such period have disputed the same or applied to have the same taxed.

7. Interest may be charged

An advocate may charge interest at 14 per cent per annum on his disbursements and costs, whether by scale or otherwise, from the expiration of one month from the delivery of his bill to the client, provided that such claim for interest is raised before the amount of the bill shall have been paid or tendered in full.[L.N. 37/1977, s. 3, L.N. 117/1980, Sch., L.N. 159/2006, s. 3.]

8. Costs payable by an executor, administrator or trustee

Where costs are payable to his advocate by an executor, administrator or trustee for or in connexion with work required to be done for him in that capacity such costs shall be so computed as to afford a complete indemnity against all expenses properly incurred in the matter and any taxation thereof shall be on the basis of advocate and own client.

9. Costs payable by infant, etc

In cases where a bill of costs is payable by an infant or lunatic or out of a fund not presently available, demand for payment thereof may be made on the parent or guardian or trustee or other person liable.

10. Taxing officer

The taxing officer for the taxation of bills under this Order shall be the Registrar or a district or deputy registrar of the High Court or, in the absence of a registrar, such other qualified officer as the Chief Justice may in writing appoint; except that in respect of bills under Schedule 4 to the order the taxing officer shall be the registrar of trade marks or any deputy or assistant registrar of trade marks.[L.N. 56/1972, s. 3, L.N. 35/2014, s. 3.]

11. Objection to decision on taxation and appeal to Court of Appeal

(1)Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.

(2)The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.

(3)Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.

(4)The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) far the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.[L.N. 8/1965, Sch.]

12. Reference by consent

With the consent of both parties, the taxing officer may refer any matter in dispute arising out of the taxation of a bill for the opinion of the High Court. The procedure for such reference shall follow that of a case stated but shall be to a judge in chambers.

13. Taxation of cost as between advocate and client on application of either party

(1)The taxing officer may tax costs as between advocate and client without any order for the purpose upon the application of the advocate or upon the application of the client, but where a client applies for taxation of a bill which has been rendered in summarized or block form the taxing officer shall give the advocate an opportunity to submit an itemized bill of costs before proceeding with such taxation, and in such event the advocate shall not be bound by or limited to the amount of the bill rendered in summarized or block form.

(2)Due notice of the date fixed for such taxation shall be given to both parties and both shall be entitled to attend and be heard.

(3)The bill of costs shall be filed in a miscellaneous cause in which notice of taxation may issue, but no advocate shall be entitled to an instruction fee in respect thereof.[L.N. 73/1983, s. 3.]

13A. Powers of taxing officer

For the purpose of any proceeding before him, the taxing officer shall have power and authority to summon and examine witnesses, to administer oaths, to direct the production of books, paper and documents and to direct and adopt all such other proceedings as may be necessary for the determination of any matter in dispute before him.[L.N. 227/1967, s. 2.]

14. Default of advocate to attend taxation after notice

Any advocate who after the due notice without reasonable excuse fail to appear on the date and at the time fixed for taxation or on any date and time to which such taxation is adjourned, or who shall in any way delay or impede the taxation, or put any other party to any unnecessary or improper expense relative to such taxation shall, on the order of the taxing officer, forfeit the fees to which he would otherwise be entitled for drawing his bill of costs and attending the taxation, and shall in addition be personally liable to pay for any unnecessary or improper expense to which he has put any party; and the taxing officer may proceed with such taxation ex parte.

15. Taxation procedure contained in Part III to apply to bills under Part II

The provisions of Part III of this Order as to the form and procedure for filing and disposal of a bill of costs for taxation shall apply in all appropriate respects and so far as practicable to any bill of costs under Part II of this Order which may require to be taxed.

16. Discretion of taxing officer

Notwithstanding anything contained in this Order, on every taxation the taxing officer may allow all such costs, charges and expenses as authorized in this Order as shall appear to him to have been necessary or proper for the attainment of justice or for defending the rights of any party, but, save as against the party who incurred the same, no costs shall be allowed which appear to the taxing officer to have been incurred or increased through overcaution, negligence or mistake, or by payment of special charges or expenses to witnesses or other persons, or by other unusual expenses.

17. Length of folio

A folio shall for all purposes of this Order be deemed to consist of 100 words and any part of a folio shall be charged as one folio. A sum or quantity of one denomination stated in figures is to be counted as one word: eg. "£25,564 16s 8d." is to be counted as three words, and "254 feet 11 inches" is to be counted as four words.[L.N. 8/1965, Sch., L.N. 73/1983, s. 2.]

Part II – NON-CONTENTIOUS MATTERS

18. Remuneration of advocate in non-contentious matters

Subject to paragraph 22, the remuneration of an advocate in respect of conveyance and general business (not being in any action, or transacted in any court or in chambers of any judge or registrar) shall be regulated as follows—Sales, purchases and securities

(a)in respect of sales and purchases of immovable property or an interest in immovable property, and in respect of debentures, mortgages and charges, and in respect of negotiating commissions on sales and mortgages, theremuneration is to be that prescribed in Schedule 1:

Provided that where the advocate acting for a vendor does not prepare a letter of agreement, heads of agreement or agreement for sale, the scale fee is reduced by one-third.Leases and agreements for lease of land

(b)In respect of leases, agreements for lease or conveyances reserving rents or agreements for the same, the remuneration is to be that prescribed in Schedule 2.

Companies formations, incorporations and registrations

(c)In respect of business in connection with the formation, incorporation and registration of a company, the remuneration is to be that prescribed in Schedule 3.

Trademarks

(d)In respect of business in connection with the registration of and proceedings concerning trademarks, the remuneration is to be that prescribed in Schedule 4.

Estates

(e)In respect of business in connection with probate and the administration of estates, the remuneration is to be that prescribed in Schedule 10.

Uncompleted transactions and other business

(f)In respect of any business referred to in this paragraph which is not completed, and in respect of other deeds or documents, including settlements, deeds of gift inter vivos, assents and instruments vesting property in new trustees, and any other business of a non-contentious nature, the remuneration which has otherwise not been provided for, the remuneration is to be that prescribed in Schedule 5.

Patents, designs and utility models

(g)In respect of business in connection with the registration of patents, designs and utility models as well as proceedings concerning patents, designs and utility models, the remuneration is to be that prescribed in Schedule 12.

[L.N. 8/1965, Sch., L.N. 56/1972, r. 2, L.N. 73/1983, r. 4, L.N. 35/2014, r. 5.]

19. Expenses chargeable in addition to remuneration

The remuneration prescribed by this Order does not include stamps, auctioneer’s or valuer’s charges, agent’s fees, travelling expenses, fees paid on searches in public offices or on registration, costs of extracts from any register, record or roll, cost of photocopies and other disbursements reasonably and properly incurred, but includes stationery, copies of letters and charges and allowances for time of the advocate and his clerks.[L.N. 37/1977, s. 4.]

20. Scale charges; what they include and exclude

(1)Scale charges shall include all work ordinarily incidental to a transaction, and in the case of a conveyance, transfer or mortgage shall include—

(a)taking of instructions to prepare the necessary deed or document;

(b)investigation of title;

(c)report on the title to the client;

(d)preparation or approval or adjustment of the deed or document;

(e)settlement of the transaction if in the town of the advocate’s practice;

(f)obtaining by correspondence any necessary consent or clearance certificate

but excluding land control consent;

(g)registration of the deed;

(h)correspondence between advocate and client.

(2)Scale charges shall not include—

(a)prior negotiations leading up to or necessary in the completion of a bargain;

(b)tracing of title deeds or obtaining certified copies thereof;

(c)payment of withholding tax or obtaining of exemption therefrom;

(d)completion of valuation forms for assessment of stamp duties;

(e)adjudication of stamp duties;

(f)obtaining land control consent and personal attendances for obtaining of any necessary consent or clearance certificate under subparagraph (1)(f);

(g)extra work occasioned by special circumstances;

(h)extra work occasioned by a change of circumstances emerging while an item of business is in progress, e.g. the death or bankruptcy of a party to the transaction.

[L.N. 62/1979, s. 6.]

21. Scale fees: how calculated

In the calculation of scale charges the basis of charge shall unless otherwise provided in the Schedules, and irrespective of the number of titles involved or documents required to be prepared or approved, be the sum set forth in the deed or document as the price or consideration or, if no price or consideration or only a nominal price or consideration is set forth, the value of the subject matter affected by the deed, which shall be deemed to be—

(a)the value fixed for the purpose of stamp duty; which failing

(b)the sum at which the property affected has last been passed for estate duty; which failing

(c)the last price at which a sale has taken place within ten years from the date of the transaction; which failing

(d)the estimated average market value during the preceding three years.

22. Liberty to advocate to elect Schedule 5; election to be communicated to client in writing

(1)In all cases in which any other Schedule applies, an advocate may, before or contemporaneously with rendering a bill of costs drawn as between advocate and client, signify to the client his election that, instead of charging under such Schedule, his remuneration shall be according to Schedule 5, but if no election is made his remuneration shall be according to the scale applicable under the other Schedule.

(2)Subject to paragraph 3, an advocate who makes an election under subparagraph (1) of this paragraph may not by reason of his election charge less than the scale fee under the appropriate Schedule.[L.N. 56/1972, s. 5, L.N. 35/2014, s. 3.]

23. Items to be charged for separately under appropriate Schedule

In the event of the business handled by an advocate in the course of any one transaction falling under more than one of the categories prescribed by Schedules 1 to 4, each item shall be charged separately according to the remuneration prescribed by the Schedule within which it falls and any part of the business not specially provided for by any of the said Schedule 1 to 4 shall be charged under Schedule 5.[L.N. 35/2014, s. 3.]

23A. Choice of methods of completion of transaction; fee applicable

Where a transaction may be completed in more ways than one, the advocate concerned may complete the transaction in any way he chooses but, in the absence of agreement to the contrary, he must charge the fee applicable to the method attracting the lowest fee.[L.N. 56/1972, s. 6.]

24. Documents; by whom to be prepared

Unless otherwise agreed, all conveyancing documents shall be prepared by the advocate of the parties as follows—

(a) conveyance or transfer or assignment		advocate of the purchaser or party to whom property is conveyed, transferred or assigned;
(b) mortgage or charge		advocate of mortgagee or chargee;
(c) release or discharge		advocate of party in whose favour release or discharge is given;
(d) Lease		advocate of lessor;
(e) all other documents		advocate of the grantee or obligee, unless express provision to the contrary is made else where in this Order.

25. Place of completion

Unless otherwise agreed, the place of completion of conveyancing transactions shall be the office of the advocate for the vendor, mortgagee, chargee or lessor as the case may be.[L.N. 56/1972, s. 8.]

26. Definitions and application of Schedule 1

(1)Rules 27 to 41 shall govern the application of Schedule 1 and shall be applied in sequence, and the words "the scales", or words of similar import appearing in any of the said rules, shall be read and construed as meaning the charges prescribed by the First, Second and Third Scales to the said Schedule, as modified by the provisions of any preceding rule.

(2)In this Order, wherever their application so requires, "conveyance", "mortgage", "mortgagor", and "mortgagee" shall respectively be read and construed as "transfer" or "assignment", "charge", "chargor" and "chargee".[L.N. 35/2014, s. 3.]

27. Commission for negotiating sale or purchase

Commission for negotiating a sale or purchase by private contract shall apply to cases where the advocate of a vendor or purchaser arranges the sale or purchase and the price and terms and conditions thereof, and no commission is paid by the client to an auctioneer, or estate or other agent.

28. Remuneration for conveyance on a sale by auction

The remuneration for deducting title and perusing and completing conveyance on a sale by auction is to be chargeable on each lot of property except that where property held under the same title is divided into lots for convenience of sale and the same purchaser buys several lots and takes one conveyance and only one abstract of title is delivered the remuneration is to be chargeable upon the aggregate prices of the lots.

29. Charges where same advocate acting for both vendor and purchaser

Where an advocate acts for both vendor and purchaser he shall be entitled to charge as against the vendor the vendor’s advocate’s charges and as against the purchaser the purchaser’s advocate’s charges, such charges in each case to be reduced by one-sixth.

30. Commission for negotiating loan

The commission for negotiating a loan shall be payable to the mortgagor’s advocate where he arranges and obtains the loan on instructions from the mortgagor to endeavour to raise or find the loan. The commission for negotiating a loan shall be payable to the mortgagee’s advocate where he arranges the loan on instructions from the mortgagee to arrange or find an investment. Where an advocate arranges a loan between two clients on respective instructions to raise a loan and to find an investment he shall be entitled to charge only the one commission, of which half shall be payable by the mortgagor and half by the mortgagee.

31. Costs of mortgage to be paid by borrower

The costs of a mortgagee for the investigation of title and the preparation, completion and registration of his security or of any discharge or assignment thereof made at the request of the borrower, whether or not the transaction is completed, shall be payable to the borrower, but any commission due to the mortgagee’s advocate for negotiating the loan shall be payable by the mortgagee.[L.N. 62/1979, s. 7.]

32. Building society mortgagee

(1)Where an advocate acting on behalf of a building society mortgagee makes use of a printed or stereotyped form of engrossment of mortgage or discharge, the fee payable to the mortgagee’s advocate in respect thereof under Schedule 1 shall be reduced by one-third but is not subject under this paragraph and any other paragraph to a reduction in excess of one-half of the scale fee.

(2)For the purposes of this rule, a building society shall be deemed to include any association, corporation or company acting in the making of an advance or the lending of money on the security of, or for the purposes of purchasing or building, domestic residential property.[L.N. 56/1972, s. 9, L.N. 35/2014, s. 3.]

33. Charges where advocate is concerned for both mortgagor and mortgagee

Where an advocate is concerned for both mortgagor and mortgagee, he shall charge the mortgagee’s advocate’s charges and one-half of those which would be allowed to the mortgagor’s advocate.[L.N. 62/1979, s. 8]

34. Charges where conveyance and mortgage are prepared by one advocate

Where a conveyance and mortgage of the same property are completed at the same time and are prepared by the same advocate he shall charge only one-half of the scale fees for preparing and approving the mortgage deed in addition to his charges for the conveyance and his commission for negotiating (if any).[L.N. 62/1979, s. 9]

35. Charges where one document prepared and one approved by one advocate

Where a conveyance and a mortgage of the same property are completed at the same time, the respective advocates acting for the vendor and purchaser shall charge the appropriate scale fee on the conveyance and their commissions for negotiating (if any). For preparing and approving the mortgage, they shall charge one-half of the appropriate scale fee.[L.N. 56/1972, s. 10, L.N. 62/1979, s. 10.]

36. Charges where mortgage in favour of vendor and one advocate acts for both parties

Where a conveyance and mortgage of the same property are completed at the same time and are prepared by the same advocate, and the mortgagee is the vendor, the advocate shall be entitled to charge only one-third of the scale fee prescribed for preparing and approving the mortgage deed in addition to his charge for the conveyance and his commission for negotiating (if any).[L.N. 62/1979, s. 11.]

37. Where property is sold subject to incumbrances

Where a property is sold subject to incumbrances consisting of one or more legal mortgages or legal charges, the amount of the incumbrances shall be deemed part of the purchase money for the purpose of calculating the charges for the conveyance, except where the mortgagee is the purchaser, in which case the charge for the conveyance shall be calculated upon the price of the equity of redemption.

38. Charges for mortgage to advocate

Any advocate to whom, either alone or jointly with any other person, a mortgage of immovable property is granted as security for money shall be entitled to charge for all business transacted and acts done in investigating the title to the property and preparing and completing the mortgage, all such professional charges and remuneration, other than negotiating commission, as he would have been entitled to receive if such mortgage had been made to a person not an advocate, and such person had retained and employed such advocate to transact such business and do such acts; and such charges and remuneration shall accordingly be recoverable from the mortgagor.

39. Charges for transfer of mortgage to advocate or subsequent work in relation to mortgage in which advocate is personally interested

Any advocate to or in whom, either alone or jointly with any other person, any mortgage is transferred or is vested, shall be entitled to charge for all business transacted and acts done by such advocate in relation to such mortgage or to the security thereby created or the property therein comprised, all such professional charges and remuneration, other than negotiating commission, as he would have been entitled to receive if such mortgage had been transferred to and had remained vested in a person not an advocate, and to recover the same from the person on whose behalf such business is transacted and work done, or to charge the same against the security as if such person had retained and employed such advocate to transact such business and do such acts.

40. Scale: how reckoned on transfers of mortgages

The scale fee as to mortgages shall apply to transfers of mortgages where the title is investigated, but not to transfers where the title was investigated by the same advocate on the original mortgage or on any previous transfer; and the said scale fee shall not apply to further charges where the title has been previously investigated by the same advocate or firm of advocates within the next preceding twelve months. As to such transfers and further charges the remuneration shall be regulated according to Schedule 5, but the commission (if any) for negotiating the loan shall be chargeable on such transfers and further charges under Schedule 1.[L.N. 35/2014, s. 3.]

41. Charges for approving draft on behalf of several parties having different interests

If any advocate approves of a draft on behalf of several parties having distinct, but not conflicting, interests capable of separate representation, he shall be entitled to charge the scale fee in respect of the first or principal party, and Sh. 250 in addition for each such party after the first, the whole charges to be aggregated and paid in equal shares by such parties or apportioned according to their respective interests.[L.N. 37/1977, s. 5.]

42. Application of Schedule 2

Rules 43 to 48 shall govern the application of Schedule 2.[L.N. 35/2014, s. 3.]

43. Lessor’s and lessee’s costs

(1)Notwithstanding any custom or practice to the contrary, a party to a lease shall, unless the parties thereto agree otherwise in writing, be under no obligation to pay the whole or part of any other party’s advocate’s costs of or relating to the preparation, execution or registration of the lease, but nevertheless the costs and expenses of having the lease duly stamped and registered shall be borne by the lessee.

(2)In this Rule—

(a)"lease" includes a letting and an under-lease and also an agreement for a lease, letting or under-lease or for a tenancy or sub-tenancy;

(b)"costs" includes fees, charges, disbursements and remuneration.

44. Printed or stereotyped leases

Where an advocate acting on behalf of a lessor who is granting or proposing to grant two or more leases in common form makes use of a printed or stereotyped form of engrossment of lease the fee payable to such advocate in respect of each such lease under Schedule 2 shall be reduced by one-third.[L.N. 35/2014, s. 3.]

45. Charges where advocate is concerned for both lessor and lessee

Where an advocate is concerned for both lessor and lessee, he shall be entitled to charge the lessor’s advocate’s charges and one-half of those of the lessee’s advocate.[L.N. 8/1965, Sch.]

46. Where mortgagor joins in a conveyance

Where a mortgagor or mortgagee joins in a conveyance or lease, the vendor’s or lessor’s advocate may charge an additional fee of Sh. 120 for obtaining the concurrence of the party so joining.[L.N. 37/1977, s. 6.]

47. Where third party joining in conveyance or lease is separately represented

Where a party other than a vendor or lessor joins in a conveyance or lease, and is represented by a separate advocate, the charges of such separate advocate shall be calculated under Schedule 5.[L.N. 35/2014, s. 3.]

48. Where consideration for conveyance or lease consists partly of premium and partly of rent

Where a conveyance or lease is partly in consideration of a money payment or premium and partly of a rent, then, in addition to the remuneration prescribed under Schedule 2 by reference to the rent, there shall be paid a further sum equal to the remuneration under Schedule 1 on a purchase at a price equal to such money payment or premium.[L.N. 35/2014, s. 3.]

Part III – TAXATION OF COSTS IN CONTENTIOUS AND OTHER MATTERS

49. Application of Part III

(1)This Part shall apply to contentious matters and the taxation of costs as between advocate and client and between party and party in contentious and other proceedings.

(2)In this Part, the expression "the Court" means the High Court or any judge thereof or a resident Magistrate Court or any magistrate sitting as a member of a resident Magistrate Court.

49A. Costs in criminal cases

Costs in criminal cases, whether in the High Court or subordinate courts, if not agreed or ordered, shall be taxed as between advocate and client under Schedule 5.[L.N. 73/1983, s. 5, L.N. 35/2014, s. 3.]

50. Costs in High Court according to Schedule 6

Subject to paragraphs 22 and 58 and to any order of the court in the particular case, a bill of costs in proceedings in the High Court shall be taxable in accordance with Schedule 6 and, unless the court has made an order under paragraph 50A, where Schedule 6 provides a higher and a lower scale the costs shall be taxed in accordance with the lower scale.[L.N. 56/1972, s. 11, L.N. 73/1983, s. 6, L.N. 35/2014, s. 3.]

50A. Schedule 6 costs on the higher scale

The court may make an order that costs are to be taxed on the higher scale in Schedule 6 on special grounds arising out of the nature and importance or the difficulty or urgency of the case. The higher scale may be allowed either generally in any cause or matter or in respect of any particular application made or business done.[L.N. 56/1972, s. 12, L.N. 35/2014, s. 3.]

51. Costs in subordinate courts according to Schedule 7

Subject to paragraph 22, the scale of costs applicable to proceedings in subordinate courts (other than Kadhi’s Courts) is that set out in Schedule 7.[L.N. 56/1972, s. 13, L.N. 35/2014, s. 3.]

51A. Costs in Tribunal under Cap. 301

Subject to paragraph 22, the scale of costs applicable to proceedings in a Tribunal appointed under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act is that set out in Schedule 8.[L.N. 198/1969, s. 2, L.N. 56/1972, s. 14, L.N. 73/1983, s. 7, L.N. 35/2014, s. 3.]

51B. Costs in Tribunal under Cap. 296

Subject to paragraph 22, the scale of costs applicable to proceedings in a Tribunal establishment under the Rent Restriction Act (Cap. 296) is that set out in Schedule 9.[L.N. 62/1979, s. 12, L.N. 73/1983, s. 7, L.N. 35/2014, s. 3.]

51C. Costs in probate and administration cases

Subject to paragraph 22, the scale of costs applicable to proceedings concerning probate and the administration of estates is that set out in Schedule 10.[L.N. 73/1983, s. 8, L.N. 35/2014, s. 3.]

51D.

Subject to paragraph 22, the remuneration applicable to proceedings before Tribunals other than those under schedules 8 and 9 of this Order except where otherwise prescribed under the Act setting up the Tribunal, is that set out in Schedule 11.[L.N. 35/2014, r. 6.]

52. Costs to be taxed as between party and party unless otherwise directed

The costs awarded by the Court on any matter or application shall be taxed and paid as between party and party unless the Court in its order shall have otherwise directed.

53. No advocate’s costs where suit brought without notice except on special order

If the plaintiff in any action has not given the defendant notice of his intention to sue, and the defendant pays the amount claimed or found due at or before the first hearing, no advocate’s costs shall be allowed except on a special order of the judge or magistrate.

54. Costs on an opposed application

In the absence of any express direction costs of an opposed motion or other application (other than an action) shall follow the event, and shall be taxed as between party and party.

55. Costs out of estate of minor, etc

The Court may order costs to be borne by the estate of a minor, lunatic, insolvent or deceased person and may give such directions as may be necessary to secure the due payment thereof.

56. Court may fix costs or record consent order as to costs

The Court may of its own motion fix a sum to be paid in lieu of taxed costs and shall, at the request of all parties to any proceedings, record as an integral part of the final order or judgment therein, the agreement of the parties as to the amount of costs to be paid in pursuance of the Court’s order or judgment unless the Court, for reasons to be recorded, considers that the amount so agreed is exorbitant or unreasonable.

57. Registrar to record consent order as to costs

(1)If, after the disposal of any proceedings by the Court, the parties thereto agree the amount of costs to be paid in pursuance of the Court’s order or judgment therein, the parties may in lieu of filling a bill of costs and proceeding to taxation thereof, request the registrar by joint letter to record their agreement and unless he considers the amount agreed upon to be exorbitant the registrar shall do so upon payment of the same court fee as is payable on the filling of any document for which no special fee is prescribed.

(2)Such agreement where recorded shall have the same force and effect as a certificate of taxation by the taxing officer:Provided that if the taxing officer shall consider the amount so agreed upon to be exorbitant he may direct the said costs to be taxed in accordance with this Order and the provisions of rule 11 shall apply in regard to every such taxation.[L.N. 8/1965, Sch.]

58. Costs in High Court may be restricted to subordinate courts’ scale

In causes or matters which, having regard to the amount recovered or paid in settlement or the relief awarded, could have been brought in a resident magistrate’s or other subordinate court, costs on the scale application to subordinate courts only shall be allowed unless the judge otherwise orders.[L.N. 73/1983, s. 9.]

59. Costs of more than one advocate may be certified by the judge

(1)The costs of more than one advocate may be allowed on the basis hereinafter provided in causes or matters in which the judge at the trial or on delivery of judgment shall have certified under his hand that more than one advocate was reasonable and proper having regard, in the case of a plaintiff, to the amount recovered or paid in settlement or the relief awarded or the nature, importance or difficulty of the case and, in the case of a defendant, having regard to the amount sued for or the relief claimed or the nature, importance or difficulty of the case.

(2)A certificate may be granted under this rule in respect of two members or employees of the same firm.

60. Judge may certify for costs of Queen’s Counsel and Junior Counsel

(1)In any cause or matter where an order for costs is made in favour of a party whose case has been conducted or led by one of Her Majesty’s Counsel, additional costs provided in Schedule 6 shall be allowed if the judge at the trial or on delivery of judgment shall have certified under his hand that the employment of Queen’s Counsel was reasonable and proper having regard, in the case of a plaintiff, to the amount recovered or paid in settlement or the relief awarded or the nature, importance or difficulty of the case, and, in the case of a defendant, having regard to the amount sued for or the relief claimed or the nature, importance or difficulty of the case.

(2)A certificate for Queen’s Counsel (with or without Junior Counsel) may be granted notwithstanding that he is a member of the firm of advocates by whom he was instructed.

(3)A certificate for Junior Counsel (with or without Queen’s Counsel) may be granted notwithstanding that he is a member or employee of the firm of advocates by whom he was instructed.[L.N. 35/2014, s. 3.]

61. Costs improperly incurred by advocate

(1)If in any case it appears to the Court or a judge that costs have been incurred improperly or without reasonable cause, or that by reason of any undue delay in proceedings under any judgment or order, or of any misconduct or default of the advocate, any costs properly incurred have proved fruitless to the party on whose behalf the same were incurred, the Court or judge may call on the advocate by whom such costs have been so incurred to show cause why such costs should not be disallowed as between the advocate and his client, and also (if the circumstances of the case shall require) why the advocate should not repay to his client any costs which his client may have been ordered to pay to any other person, and thereupon may make such order as the justice of the case may require.

(2)The Court or judge may in any case refer the matter to a taxing officer for inquiry and report and direct the advocate in the first place to show cause before such taxing officer.

62. Costs where same advocate is employed by two or more plaintiffs or defendants

Where the same advocate is employed for two or more plaintiffs or defendants, and separate pleadings are delivered or other proceedings had by or for two or more such plaintiffs or defendants separately, the taxing officer shall consider in the taxation of such advocate’s bill of costs, either between party and party or between advocate and client, whether such separate pleadings or other proceedings were necessary or proper, and if he is of opinion that any part of the costs occasioned thereby have been unnecessarily or improperly incurred, the same shall be disallowed.

62A. Costs where there has been a change of advocates

(1)Where there has been a change of advocates or more than one change of advocates, the advocate finally on the record shall draw a single bill for the whole of the matter in respect of which costs have been awarded.

(2)On taxing the bill the taxing officer shall take into account the following principles, that the bill shall not be larger than if a single advocate had been employed and that the party taxing the bill shall not obtain indemnity for costs which he has not paid.

(3)The bill shall be accompanied by a certificate setting out the dates during which all advocates acted, together with all agreements for remuneration made with them, all sums paid to them for costs and whether those sums were paid in full settlement.[L.N. 37/1977, s. 7.]

63. Costs between party and party where joint executors or trustees defend separately may be restricted

In taxing as between party and party the costs of joint executors or trustees who defend separately, the taxing officer shall, unless otherwise ordered by the Court or judge, allow only one set of costs for such defendants when he is of opinion that they ought to have joined in their defence, such costs to be apportioned among them as the taxing officer shall deem fit.

64. Appearance in Court or chambers of party not interested

Where any party appears upon any application or proceedings in Court or in chambers in which he is not interested or upon which, according to the practice of the Court, he ought not to attend, he shall not be allowed any costs of such appearance unless the Court or judge shall otherwise order.

65. Limits of time for taxation

(1)At any time after 14 days from the making of an order for the payment forthwith of costs when taxed, any party liable to pay the costs may give not less than one calendar month’s notice to the party entitled to tax his bill to do so. The notice shall be filed and delivered.

(2)If the party entitled to tax his bill does not file his bill for taxation within the time limited by the notice, the taxing officer, on the application in writing of any person liable to pay such costs, may notify the party in delay that the bill will not be taxed unless the time for filing shall have been extended by the taxing officer or the court, which extension may be granted either before or after the expiry of the notice.

(3)The period excluded by Order 50, rule 3 of the Civil Procedure Rules (Cap. 21, Sub. Leg.) is excluded for the purposes of this paragraph.[L.N. 37/1977, s. 8, L.N. 268/2017, s. 2.]

66. Taxation of costs upon an award

Costs may be taxed upon an award in an arbitration notwithstanding that the time for setting aside the award has not elapsed.

67. Receiver in insolvency to have notice of taxation

In insolvency matters the registrar shall give to the receiver the usual notice of the appointment to tax any bill of costs relating to the insolvency between party and party and the advocate or party lodging the bill shall on application furnish the receiver with a copy thereof, on payment of the proper fee, which payment may be charged to the estate.

68. Advocate of insolvent petitioner to give credit for deposit towards costs

An advocate in the matter of an insolvency petition presented by the insolvent himself shall, in his bill of costs, give credit for such sum or security, if any, as he may have received from the debtor, as a deposit on account of the costs and expenses to be incurred in and about the filing and prosecution of such petition; and the amount of any such deposit shall be deducted by the taxing officer in arriving at the amount for which his certificate of taxation issues.

68A. Certificate of costs

(1)Notwithstanding anything to the contrary in this Order, when the Registrar of the High Court enters final judgment under Order 49, rule 2 of the Civil Procedure Rules (Cap. 21, Sub. Leg.), he may, on application in writing and without the filing or taxation of a bill of costs or of notice to any party, sign a certificate of the costs of the suit calculated in accordance with item 15 of Schedule 6.

(2)An advocate may, in any case in lieu of taxation, apply in writing for a certificate under this paragraph.

(3)If the Registrar refuses an application under this paragraph he shall on request certify his refusal in writing to the applicant and the applicant may within fourteen days of receipt of the certificate give notice of objection, whereupon paragraph 11 shall apply.[L.N. 227/1967, s. 3, L.N. 56/1972, s. 15, L.N. 73/1983, s. 10, L.N. 35/2014, s. 3, L.N. 268/2017, s. 3.]

68B. Limitation of costs

Where in any case to which rule 68A could apply, no increase on the scale fee is obtained on a bill of costs lodged for taxation under rule 70, no further costs shall be allowed than would have been allowed under rule 68A.[L.N. 227/1967, s. 3.]

69. Manner of preparing bills for taxation

(1)Bills of costs for taxation shall be prepared in five columns in manner following—

(a)the first or left-hand column for dates, showing year, month and day;

(b)the second column for the items, which shall be serially numbered;

(c)the third column for the particulars of the services charged for;

(d)the fourth column for the professional charges claimed; and

(e)the fifth column for the taxing officer’s deductions.

(2)Disbursements shall be shown separately at the foot of the bill.

(3)Fees for attending taxation shall not be included in the body of the bill, but the item shall appear at the end, and the amount left blank for completion by the taxing officer.

70. Filing bills for taxation

Every bill of costs of taxation shall be lodged with the registrar and shall be endorsed with the name and address of the advocate by whom it is lodged, and also the name and address of the advocate (if any) for whom he is agent, and the name and address of any advocate or other person entitled to receive notice of the taxation. Every such bill shall be accompanied by one carbon or other true copy thereof for each name endorsed thereon of any advocate or other person entitled to receive such notice.

71. Bills not to be altered after being lodged

No addition or alteration shall be made in a bill of costs by the party submitting the same after the bill has been lodged for taxation, except by consent of the parties, or by permission or direction of the Court or taxing officer.

72. Notice of taxation to be given by taxing officer

When a bill of costs has been lodged for taxation as aforesaid the registrar shall, upon payment of the fee prescribed, issue to the party lodging the bill a notice of the date and time (being not less than five days after the issue of such notice, unless a shorter time is specially allowed by the registrar) fixed for taxation thereof and shall also issue a copy of such notice, accompanied by a copy of the bill, to each advocate and other person whose name is endorsed on the bill as entitled to receive notice of the taxation thereof:Provided that where any person so entitled to receive notice cannot be found at his last-known address for service the taxing officer may in his discretion by order in writing dispense with service of notice upon such person.

73. No notice of taxation where party has not appeared

(1)It shall not be necessary for notice of taxation of costs to be given to a party against whom such costs are being taxed in any case in which such party has not appeared in person or by advocate.

(2)Where an advocate has withdrawn, the provisions of Order 3, rule 12 of the Civil Procedure Rules (Cap. 21, Sub. Leg.)[L.N. 73/1983, s. 11, L.N. 35/2014, s. 3.]

74. Vouchers to be produced

Subject to paragraph 74A, receipts or vouchers for all disbursements charged in a bill of costs shall be produced on taxation if required by the taxing officer.[L.N. 37/1977, s. 9.]

74A. Witness expenses

(1)The taxing officer shall allow reasonable charges and expenses of witnesses who have given evidence and shall take into account all circumstances and without prejudice to the generality of the foregoing, the following factors—

(a)the loss of time of the witness;

(b)if the witness is a party, the time spent giving evidence;

(c)the loss of wages or salary to the witness or his employer while attending court;

(d)the cost of travelling, board and lodging in accordance with the status of the witness;

(e)where the witness is a professional man, any scale fees by which he may charge for his time or attendance;

(f)if the witness came from abroad, whether this was a reasonable means of obtaining his evidence after considering the importance or otherwise of his evidence;

(g)where the witness is an expert witness as defined by the Evidence Act (Cap. 80) and has given evidence, a fee for qualifying to give evidence where he has reasonably had to spend time, effort or money in investigating the particular matter on which he gave evidence.

(2)The taxing officer shall allow reasonable charges and expenses in respect of any person not actually called as a witness whose attendance has been certified as necessary by the Judge.[L.N. 37/1977, s. 9.]

75. Numbering of folios on documents charged by the folio

(1)All drafts and other documents or copies thereof, the preparation of which is charged for, shall be produced at taxation if required by the taxing officer.

(2)The length of all documents not vouched by production of the original or copies thereof or other evidence satisfactory to the taxing officer may be certified by the advocate in writing, and if such certificate be found by the taxing officer to be erroneous, the taxing officer may disallow the cost of the document so erroneously certified or any part thereof.[L.N. 73/1983, s. 12.]

76. Taxing officer may proceed ex parte and extend or limit time or adjourn

The taxing officer shall have power to proceed to taxation ex parte in default of appearance of either or both parties or their advocates, and to limit or extend the time for any proceeding before him, and for proper cause to adjourn the hearing of any taxation from time to time.

77. Where more than one-sixth taxed off

(1)If more than one-sixth of the total amount of a bill of costs, exclusive of court fees, be disallowed on taxation, the party presenting the bill for taxation may, in the discretion of the taxing officer, be disallowed the costs of such taxation.

(2)The decision of the taxing officer under this rule shall be final.

78. [Deleted by L.N. 73/1983, s. 13.]

79. Instructions of judge as to costs

The judge may, for special reasons to be certified by him, allow an advocate’s costs in any case in which costs are not allowed under the foregoing rules, and may allow costs in addition to the costs provided by this Order, or may refuse to allow an advocate’s costs, or may allow costs at a lower rate than that provided by this Order.

Source: Kenya Law · Imported 4 October 2026