The Advocates (Remuneration) Order

Section 1. Citation Section This Order may be cited as the Advocates (Remuneration) Order.

Section 2. Application of Order Section 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.]

Section 3. Scale of fees Section 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.]

Section 4. Additional remuneration for exceptional dispatch Section 4(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. Section 4(2) Such additional remuneration shall, except in special circumstances, be allowable only as between advocate and client. [L.N. 62/1979, s. 5.]

Section 5. Special fee for exceptional importance and complexity Section 5(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. Section 5(2)(a) the place at or the circumstances in which the business or part thereof is transacted; Section 5(2)(b) the nature and extent of the pecuniary or other interest involved; Section 5(2)(c) the labour and responsibility entailed; and Section 5(2)(d) the number, complexity and importance of the documents prepared or examined.

Section 6. Security from client for advocate’s remuneration Section 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.

Section 7. Interest may be charged Section 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.]

Section 8. Costs payable by an executor, administrator or trustee Section 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.

Section 9. Costs payable by infant, etc Section 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.

Section 10. Taxing officer Section 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.]

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

Section 12. Reference by consent Section 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.

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

Section 14. Default of advocate to attend taxation after notice Section 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.

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

Section 16. Discretion of taxing officer Section 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.

Section 17. Length of folio Section 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.]

Section 13A. Powers of taxing officer Section 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.]

Section 18. Remuneration of advocate in non-contentious matters Section 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:

Section 19. Expenses chargeable in addition to remuneration Section 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.]

Section 20. Scale charges; what they include and exclude Section 20(1)(a) taking of instructions to prepare the necessary deed or document; Section 20(1)(b) investigation of title; Section 20(1)(c) report on the title to the client; Section 20(1)(d) preparation or approval or adjustment of the deed or document; Section 20(1)(e) settlement of the transaction if in the town of the advocate’s practice; Section 20(1)(f) obtaining by correspondence any necessary consent or clearance certificate Section 20(1)(g) registration of the deed; Section 20(1)(h) correspondence between advocate and client. Section 20(2)(a) prior negotiations leading up to or necessary in the completion of a bargain; Section 20(2)(b) tracing of title deeds or obtaining certified copies thereof; Section 20(2)(c) payment of withholding tax or obtaining of exemption therefrom; Section 20(2)(d) completion of valuation forms for assessment of stamp duties; Section 20(2)(e) adjudication of stamp duties; Section 20(2)(f) obtaining land control consent and personal attendances for obtaining of any necessary consent or clearance certificate under subparagraph (1)(f); Section 20(2)(g) extra work occasioned by special circum...

Section 21. Scale fees: how calculated Section the value fixed for the purpose of stamp duty; which failing

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

Section 23. Items to be charged for separately under appropriate Schedule Section 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.]

Section 24. Documents; by whom to be prepared Section Unless otherwise agreed, all conveyancing documents shall be prepared by the advocate of the parties as follows— (a) conveyance or transfer or assignmentadvocate of the purchaser or party to whom property is conveyed, transferred or assigned;(b) mortgage or chargeadvocate of mortgagee or chargee;(c) release or dischargeadvocate of party in whose favour release or discharge is given;(d) Leaseadvocate of lessor;(e) all other documentsadvocate of the grantee or obligee, unless express provision to the contrary is made else where in this Order.

Section 25. Place of completion Section 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.]

Section 26. Definitions and application of Schedule 1 Section 26(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. Section 26(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.]

Section 27. Commission for negotiating sale or purchase Section 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.

Section 28. Remuneration for conveyance on a sale by auction Section 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.

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

Section 30. Commission for negotiating loan Section 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.

Section 31. Costs of mortgage to be paid by borrower Section 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.]

Section 32. Building society mortgagee Section 32(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. Section 32(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.]

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

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

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

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

Section 37. Where property is sold subject to incumbrances Section 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.

Section 38. Charges for mortgage to advocate Section 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.

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

Section 40. Scale: how reckoned on transfers of mortgages Section 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.]

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

Section 42. Application of Schedule 2 Section Rules 43 to 48 shall govern the application of Schedule 2. [L.N. 35/2014, s. 3.]

Section 43. Lessor’s and lessee’s costs Section 43(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. Section 43(2)(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; Section 43(2)(b) "costs" includes fees, charges, disbursements and remuneration.

Section 44. Printed or stereotyped leases Section 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.]

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

Section 46. Where mortgagor joins in a conveyance Section 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.]

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

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

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