Advocates (Remuneration & Taxation of Costs) Regulations

Section Citation Section These Regulations may be cited as the Advocates (Remuneration and Taxation of Costs) Regulations.

Section Taxation of costs as between advocate and client on application of either party Section 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 summarised or block form, the taxing officer shall give the advocate an opportunity to submit an itemised bill of costs before proceeding with the taxation, and in that event the advocate shall not be bound by or limited to the amount of the bill rendered in summarised or block form. Due notice of the date fixed for the taxation shall be given to both parties, and both shall be entitled to attend and be heard.

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

Section Taxation procedure contained in Part III to apply to bills under Part II Section The provisions of Part III of these Regulations 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 these Regulations which may require to be taxed.

Section Discretion of taxing officer Section Notwithstanding anything in these Regulations, on every taxation the taxing officer may allow all such costs, charges and expenses as are authorised in these Regulations and appear to him or her to have been necessary or proper for the attainment of justice or for defending the rights of any party but, except as against the party who incurred them, 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 Pre-taxation meeting of advocates or parties Section The advocates for the respective parties or the parties themselves, if unrepresented, shall jointly identify the costs, fees and expenses on which they agree, if any, before the taxation of a bill of costs. For every taxation, the taxing officer shall record the costs, fees and expenses that are identified in sub-regulation (1) if any, and then proceed to tax the costs, fees and expenses on which there is no agreement, if any. [regulation 13A added by regulation 3 of Statutory Instrument 7 of 2018 ]

Section Application of Regulations Section The remuneration of an advocate of the High Court by his or her client in contentious and noncontentious matters, the taxation of that remuneration and the taxation of costs as between party and party in contentious matters in the High Court and in magistrates courts shall be in accordance with these Regulations.

Section Definition of folio Section In these Regulations, unless the context otherwise requires, “folio” means one hundred words, and in the calculation of a folio, a single figure or a group of figures up to five, or an item in accounts, shall be counted as one word.

Section Agreed fee not to be less than scale up to one hundred thousand shillings Section No advocate shall accept or agree to accept remuneration at less than that provided by these Regulations except where the remuneration assessed under these Regulations would exceed the sum of one hundred thousand shillings, and in that event the agreed fee shall not be less than one hundred thousand shillings. [regulation 4 amended by regulation 2 of Statutory Instrument 7 of 2018 ]

Section Additional remuneration for exceptional dispatch Section Where any business requires and receives exceptional dispatch, the advocate shall be entitled to receive and shall be allowed such additional remuneration as is appropriate in the circumstances, which shall be allowable only as between advocate and client.

Section Special fee for exceptional importance and complexity Section In assessing that special fee regard may be had to— In business of exceptional importance or of unusual complexity, an advocate shall be entitled to receive and shall be allowed as against his or her client a special fee in addition to the remuneration provided in these Regulations. the circumstances in which the business or part of the business is transacted; the nature and extent of the pecuniary or other interest involved; the labour and responsibility entailed; and the number, complexity and importance of the documents prepared or examined.

Section Security from client for advocate's remuneration Section An advocate may accept from his or her client and a client may give to his or her 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 or her and for interest as hereafter provided on such amount, but so that interest is not to commence until the amount due is ascertained by either agreement or taxation.

Section Interest may be charged Section An advocate may charge interest at 6 percent per year on his or her disbursements and costs, whether by scale or otherwise, from the expiration of one month from the delivery of his or her bill to the client.

Section Notice of taxation to be given by taxing officer Section When a bill of costs has been lodged for taxation, the registrar shall, upon payment of the prescribed fee, issue to the party lodging the bill a notice of the date and time (being not less than five days after the issue of the notice, unless a shorter time is specially allowed by the registrar) fixed for taxation of the bill of costs and shall also issue a copy of the 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 of the bill of costs.

Section Scale of charges in noncontentious matters Section Subject to regulation 19 of these Regulations, the scale of charges by an advocate in respect of conveyancing and general business (not being business in any action or transacted in any court or in the chambers of any judge or registrar) shall be regulated as follows— in respect of sales, purchases, mortgages and debentures completed, the remuneration shall be that prescribed in the First Schedule to these Regulations; in respect of leases, agreements for leases or conveyances reserving rents or agreements for the same completed, the remuneration shall be that prescribed in the Second Schedule to these Regulations; in respect of business in connection with floatation of companies, the remuneration shall be that prescribed in the Third Schedule to these Regulations; in respect of business in connection with registration of trademarks, inventions and designs, the remuneration shall be that prescribed in the Fourth Schedule to these Regulations; and in respect of any business referred to in paragraphs (a) and (b) of this regulation which is not completed, and in respect of other deeds or documents, including settlements and of...

Section Remuneration not to include stamps, auctioneer's charges, etc. Section The remuneration prescribed by the various Schedules to these Regulations shall not include stamps, auctioneer's or valuer's charges, travelling or hotel expenses, fees paid on searches in public offices or on registrations, costs of extracts from any register, record or roll, or other disbursements reasonably and properly paid, but shall include stationery charges and allowances for the time of the advocate and his or her clerks, and for copying and parchment and all similar disbursements. The remuneration prescribed in the First to Fifth Schedules to these Regulations does not apply to any business of a contentious character or any proceedings in court or chambers.

Section Scale charges—what they include Section Scale charges shall include all work ordinarily incidental to a transaction, like in the case of a conveyance, transfer or mortgage, the taking of instructions to prepare the necessary deed or document, the investigation of title, the preparation or approval of the deed, the settlement of the transaction if in the town of the advocate's practice, the registration of the deed and correspondence between the advocate and client. Scale charges shall not cover prior negotiations leading up to or necessary for the completion of a bargain, the tracing of title deeds, the adjudication of stamp duties, extra work occasioned by special circumstances or work occasioned by a change of circumstances emerging while an item of business is in progress, like the death or bankruptcy of a party to the transaction. In noncontentious matters, only one-third of the scale remuneration shall be allowed for copies of documents which are carbon copies.

Section Scale charges—how calculated Section In the calculation of scale charges the basis of the charge shall, unless otherwise provided in the Schedules to these Regulations, 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 is set forth, the value of the subject matter affected by the deed, which shall be deemed to be— the value fixed for the purpose of stamp duty; the sum at which the property affected has last been passed for estate duty; or the last price at which a sale has taken place within ten years from the date of the transaction.

Section Liberty of advocate to elect for Fifth Schedule Section In all cases to which the scales prescribed in the First to Fourth Schedules to these Regulations apply, an advocate may, before or contemporaneously with rendering a bill of costs, by writing under his or her hand communicated to the client, elect that his or her remuneration shall be according to the Fifth Schedule to these Regulations, but if no such election shall be made, his or her remuneration shall be according to the appropriate scale prescribed in the First to Fourth Schedules to these Regulations.

Section Business falling under more than one category Section If the business handled by an advocate in the course of any one transaction falls under more than one of the categories prescribed in the First to Fourth Schedules to these Regulations, each item shall be charged for separately according to the remuneration prescribed in the Schedule within which it falls, and any part of the business not specially provided for by any of the First to Fourth Schedules shall be charged for under the Fifth Schedule to these Regulations.

Section Definitions and application of the First Schedule Section Regulations 21 to 28 of these Regulations shall govern the application of the First Schedule to these Regulations and shall be applied in sequence, and the words “the scales” or words of similar import appearing in any of those regulations shall be read and construed as meaning the charges prescribed by the First Schedule as modified by the provision of any preceding regulation. In regulations 21 to 28 of these Regulations, wherever their application so requires, the words “conveyance”, “mortgage”, “mortgagor” and “mortgagee” shall respectively be read and construed as “transfer” or “assignment”, “charge”, “charger” and “chargee”.

Section Remuneration of vendor's advocate for conveyance on sale by auction Section The remuneration of the vendor's advocate for perusing and completing a conveyance on a sale by auction shall be chargeable on each lot of property, except that where property held under the same title is divided into lots for the purposes of sale and the same purchaser buys and takes one conveyance of more than one lot, the remuneration shall be chargeable on each conveyance upon the aggregate prices of the lots contained in such or each conveyance.

Section Charges where advocate is concerned for both mortgagor and mortgagee or vendor and purchaser Section Where an advocate is concerned for both mortgagor and mortgagee, he or she is to be entitled to charge the mortgagee's advocate's charges and one-half of those which would be allowed to the mortgagor's advocate. When an advocate acts for both vendor and purchaser, he or she shall be entitled to charge the purchaser's advocate's charges and one-half of the vendor's advocate's charges.

Section Where building society is mortgagee Section Where an advocate acting on behalf of a building society makes use of a printed or stereotyped form of engrossment or mortgage or discharge, the fee payable to the mortgagee's advocate in respect thereof under the above scale shall be reduced by one-quarter. For the purposes of this regulation, 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.

Section 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 or she shall be entitled to charge only one-half of the scale fees for approving the mortgage deed.

Section Charges where one document prepared and one approved by one advocate Section Where a conveyance and mortgage of the same property are completed at the same time, an advocate who has prepared one document and approved the other shall be entitled to charge only one-half of the scale fees in respect of the document which he or she approved.

Section Charges where mortgage in favour of vendor and one advocate acting 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-half of the scale fee prescribed for approving the mortgage deed.

Section Where property is sold subject to incumbrance Section Where property is sold subject to incumbrances, 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 Charges for approving draft on behalf of several parties having different interests Section If an advocate approves a draft on behalf of several parties having distinct but not conflicting interests capable of separate representation, he or she shall be entitled to charge the scale fee under the First Schedule to these Regulations in respect of each of the several parties.

Section Application of the Second Schedule Section Regulations 30 to 35 of these Regulations shall govern the application of the Second Schedule to these Regulations.

Section Abstract of title furnished by vendor Section Where the vendor or lessor, at the request of the purchaser or lessee, furnishes an abstract of title, it shall be charged for according to the Fifth Schedule to these Regulations.

Section Lessee to pay lessor's costs Section In the absence of any agreement as to costs, the costs of a lessor for the preparation, completion and registration of a lease and counterpart shall be payable by the lessee.

Section Charges where advocate is concerned for both vendor and purchaser, etc. Section Where an advocate is concerned for both vendor and purchaser or lessor and lessee, he or she shall be entitled to charge the vendor's or lessor' s advocate' s charges and on e-half of that of the purchaser's or lessee's advocate.

Section Where mortgagor or mortgagee 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 four hundred shillings in addition.

Section Where party other than vendor is represented by a separate advocate 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 the separate advocate shall be calculated under the Fifth Schedule to these Regulations.

Section 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 hereby prescribed in respect of the rent, there shall be paid a further sum equal to the remuneration under the First Schedule to these Regulations on a purchase at a price equal to the money payment or premium.

Section Application to contentious matters Section This Part of these Regulations shall apply to contentious matters and the taxation of costs as between advocate and client and between party and party in contentious proceedings.

Section Costs in High Court and magistrates courts according to Sixth Schedule Section A bill of costs incurred in contentious proceedings in the High Court and in the magistrates courts shall, subject to any order pronounced by the court in regard to any particular case, be taxable according to the rates prescribed in the Sixth Schedule to these Regulations.

Section Costs may be taxed as between party and party or as between advocate and client Section The costs awarded by the court on any matter or application shall be taxed and paid as between party and party unless the court shall expressly order the costs awarded to be as between advocate and client.

Section No advocate's costs where suit brought without notice Section If the plaintiff in any action has not given the defendant notice of his or her 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 an order of the judge or magistrate.

Section Registrar to record consent order on payment of filing fee Section If, after the disposal of any proceedings by the court, the parties to the proceedings agree to the amount of costs to be paid in pursuance of the court's order or judgment in the proceedings, the parties may, in lieu of proceeding to taxation, request the registrar by joint letter to record their agreement, and the registrar shall do so upon payment of the same court fee as is payable on the filing of a bill of costs. The agreement, when recorded, shall have the same force and effect as a certificate of taxation by the taxing officer.

Section Costs of more than one advocate to be certified by the judge Section The costs of more than one advocate may be allowed on the basis hereafter provided in causes or matters in which the judge at the trial or on delivery of judgment shall have certified under his or her 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. A certificate for two counsel may be granted under this regulation in respect of two members or employees of the same firm.

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

Section Costs between party and party where joint executors or trustees defend separately Section 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 the defendants when he or she is of the opinion that they ought to have joined in their defence, such costs to be apportioned among them as the taxing officer shall deem fit.

Section Where party entitled to costs fails or refuses to tax Section When any party entitled to costs refuses or neglects to file his or her bill of costs for taxation or to procure the bill of costs to be taxed and thereby prejudices any other party, the taxing officer shall be at liberty to certify the refusal or neglect and to proceed to the taxation of the costs of the other party or parties, or he or she may allow the party so refusing or neglecting a nominal sum or other sum for costs, so as to prevent any other party being prejudiced by the refusal or neglect.

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

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

Section Manner of preparing bill for taxation Section Bills of costs for taxation shall be prepared in five columns in the following manner— the first column shall be for the numbers of the items; the second column shall be for the date on which the service charged for was rendered; the third column shall indicate the particulars of the service charged, categorized under separate sub headings such as instruction fees, drawing documents, attendances, Value Added Tax where applicable, and disbursements; the fourth column shall indicate the professional fees claimed; and the fifth column shall have the deductions by the taxing officer. Disbursements shall be shown separately at the foot of the bill. 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.

Section Filing bills for taxation Section Every bill of costs for 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 or she 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 of the bill for each name endorsed on it of any advocate or other person entitled to receive the notice.

Section Bills not to be altered after being lodged Section No addition or alteration shall be made in a bill of costs by the party submitting the bill of costs 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.