Advocates (Remuneration and Taxation of Costs) Regulations

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

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

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

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

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

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

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

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

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.

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

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

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 (a) in respect of sales, purchases, mortgages and debentures completed, the remuneration shall be that prescribed in the First Schedule to these Regulations;

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

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

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

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

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

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

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

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

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

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

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

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

It shall not be necessary for notice of taxation of costs to be given to a defendant against whom the costs are being taxed in any case in which the defendant has not appeared in person or by advocate

Receipts or vouchers for all disbursements charged in a bill of costs (other than witness allowances and expenses supported by a statement signed by an advocate) shall be produced at taxation if required by the taxing officer

When a bill of costs is taxed under any special order of the court, and it appears by the order that the costs are to be paid otherwise than out of the estate of an insolvent, minor, lunatic or deceased person, the taxing officer shall note in his or her certificate of taxation by whom or the manner in which the costs are to be paid

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

The allowances for instructions and drawing an affidavit in answer to interrogatories and other special affidavits shall include all attendances on the deponent to settle and read over

In all causes and matters in the High Court and magistrates courts an advocate shall be entitled to charge as against his or her client the fees prescribed by the Sixth Schedule to these Regulations First Schedule (Regulations 14(a), 20, 28, 35)

Scale of fees on sales, purchases, mortgages and debentures and for commission on sales, purchases and loans affecting certain land

First Scale

Scale of fees for advocate for the vendor or purchaser on sale and purchase of land The fees shall be calculated cumulatively on the basis of the consideration or value of the subject matter as follows-

or completing a sale or purchase agreement for registered land (a) Where the consideration does not exceed 5% of the amount or 500,000 shillings, whichever is 10,000,000 shillings higher;

in a land 50% of the fee in item 1 of this scale registry or processing a certificate of title

where the fee shall be reduced by 30% for each item not the advocate has not handled the negotiation, handled by the advocate. preparation or completion for registration

Notes

under this scale shall be 500,000 shillings

in this scale include fees for deducing title, drafting, making copies, attesting, attendances and correspondence in connection with any of these matters, so far as the matter is required to be done by the advocate Second Scale

Scale of fees for charges affecting land such as debentures and mortgages

on the basis of the consideration or the value of the subject matter as follows (a) Where the value does not exceed 10,000,000 shillings 5% of the amount or 500,000 shillings, whichever is higher

3% of the amount exceeding 10,000,000 but not exceeding 20,000,000 shillings; and

1% of the amount exceeding 20,000,000 shillings.

chargee referred to in item 1, 30% of the fee in item 1 of this scale for negotiating, preparing and completing a further charge in addition to the charge in item 1

for negotiating, preparing 50% of the fee in item 1 of this scale and completing a security

3 for negotiating, preparing 30% of the fee in item 1 of this scale and completing a further charge in addition to the charge in item 3

or charger, for negotiating 15% of the fee in item 1 of this scale or and preparing to completion, an assignment, redemption or 500,000 shillings, whichever is higher. discharge of a security

for negotiating and 50% of the fee in item 1 of this scale preparing to completion, an equitable mortgage or memorandum of charge

for negotiating, preparing 25% of the fee in item 1 of this scale and completing an equitable mortgage or memorandum of charge by deposit of title

created, whether The full prescribed fee in respect of the contemporaneously or subsequently, in favour of the same principal security; chargee to secure the same or a lower amount 25% of the prescribed fee for the first additional security; and

10% of each subsequent additional security.

9.Where a mortgage or charge comprises more than one 10% of the prescribed fee in respect of the immoveable property second immoveable property; and

5% of the prescribed fee in respect of the third and each subsequent immoveable property.

favour of two or more The full prescribed fee in respect of the first chargees chargee;

5% of the prescribed fee in respect of each additional charge;

Provided that the total fee shall be divided equally among the chargees unless otherwise agreed by all the chargees in writing.

the negotiation and the fee shall be reduced by 30% for each preparation to completion of a transaction item not handled by the advocate.

where the debenture does not create a security, shall be calculated under the Fifth Schedule taking into account the time, complexity and responsibility

more than one charger, no addition shall be made to the prescribed fee Note

The fees in this scale include fees for deducing title, drafting, making copies, attesting, attendances and correspondence in connection with these matters, so far as those matters are required to be done by the advocate.

Second Schedule (Regulations 14(b), 15, 18, 19 & 29)

Scales of charges for leases and agreements of leases at rack rent and for building leases, reserving rent, etc.

First Scale

Scale of charges for leases and agreements for leases at rack rent

and completing a lease or agreement for a lease and counterpart lease or agreement for a lease (a) Where the consideration does not exceed 5% of the consideration or 500,000 shillings, 10,000,000 shillings; whichever is higher;

lease or 1,000,000 shillings agreement for a lease

Notes

notwithstanding those items (a) in the case of a lease, an agreement for lease or a tenancy agreement for a dwelling house or an apartment or a flat, for a term exceeding one year but not exceeding three years, and which does not contain an option for renewal or extension which may extend the term in excess of three years, an advocate may reduce the fees by a sum not exceeding 50% of the fees;

Second Scale

Scale of charges for building leases, agreements for building leases and other long leases not at rack rent

completing a lease and a counterpart lease Where the consideration does not exceed 20,000,000 10% of the consideration or 500,000 shillings, shillings whichever is higher.

Where the consideration exceeds 20,000,000 shillings 10% of the amount not exceeding 20,000,000 but does not exceed 50,000,000 shillings shillings; and

5% on the amount exceeding 20,000,000 shillings.

Where the consideration exceeds 50,00,000 shillings 10% of the amount not exceeding 20,000,000 shillings;

5% of the amount exceeding 20,000,000 shillings but not exceeding 50,000,000 shillings; and

2% of the amount exceeding 50,000,000 shillings.

or agreement 30% of the amount payable for preparing, settling for a lease and completing the lease.

Notes

For purposes of item 1 of this scale-

Third Schedule (Regulations 14(c), 15, 18 & 19)

Floatation of companies

First Scale

Registration of new companies

incorporation of a private company with limited liability and share capital (a) Where the nominal capital of the company to be 10% of the amount or 500,000 shillings, whichever is formed does not exceed 10,000,000 shillings higher;

3% of the amount exceeding 10,000,000 shillings but not exceeding 50,000,000 shillings;

2% of the amount exceeding 50,000,000 but not exceeding 100,000,000 shillings; and

1% of the amount exceeding 100,000,000 shillings.

and incorporation of a public company shall be 150% of the fees set out in item 1 of this scale, or 1,000,000 shillings, whichever is higher

and incorporation of a new company without share capital shall be agreed upon between the advocate and the client, taking into account the complexity and responsibility of the matter, but shall not be less than 500,000 shillings

company shall be agreed upon between the advocate and the client, taking into account the complexity and responsibility of the matter, but shall not be less than 1,000,000 shillings Notes

the company, which are required to be done by the advocate, but not any work in connection with the preparation or issue of a prospectus

this scale shall include fees for preparing and lodging company forms at the Companies Registry and procuring a certificate of registration and all routine attendances and correspondence Second Scale

Debentures

debenture or series of debentures (a) Where the amount secured does not exceed 10% of the amount secured or 500,000 shillings, 10,000,000 shillings whichever is higher

3% of the amount exceeding 10,000,000 shillings but not exceeding 50,000,000 shillings; and

2% of the amount exceeding 50,000,000 shillings;

3% of the amount exceeding 10,000,000 but not exceeding 50,000,000 shillings;

2% of the amount exceeding 50,000,000 shillings but not exceeding 100,000,000 shillings; and

1% of the amount exceeding 100,000,000 shillings.

in this scale, charge the fees prescribed for the advocate for a chargee in the First Schedule Notes

the company, shall be paid by the company, unless otherwise agreed in writing

the Company Registry and Land Registry, as necessary Third Scale

Other company work

any other non-litigious work in relation to company matters not otherwise provided for, shall be charged by the advocate according to time, complexity and responsibility

these Regulations shall be charged under that Schedule

Fourth Schedule (Regulation 14(d), 15, 18 & 19)

Trademarks, inventions and designs

First Scale

Trademarks

Notes

an application, and all other correspondences

This term is not defined in the Trademarks Act, where it was imported from.

Second Scale

Patents, utility models, industrial designs, geographical indications, plant varieties and other intellectual property rights

subsequent proprietor of a pending application or registered right

registration

of address of the registered proprietor and reviewing all the supporting documents

certified copies of documents (1) one copy of any document 100,000

applications and appeals (1) instructions to file infringement, expungement, The fee shall be determined by the taxing officer in rectification, caution and opposition proceedings the exercise of his or her, taking into consideration or, applications for compulsory licenses, variation, the nature and importance of the proceedings or transfer or cancellation of compulsory licenses, entry applications, the importance of the rights to the of licenses as of right and to defend or contest the parties concerned, the amount of evidence filed and proceedings or applications where the proceedings or the time required for the proceedings and all other applications are conducted before the registrar relevant

circumstances, but shall not be less than 5,000,000

Notes

Unless otherwise provided, the fees in items 1 to 11 above include drawing statutory forms and authorizations as may be necessary, and drawing the necessary routine correspondence and attendance at the registry and correspondence with the client, but the fees do not cover additional matters shown in items 10, 11 and 12, and the fees occasioned by objections or queries by the registrar or third parties or by any other complication or unusual delay, which shall be charged for separately.

Fifth Schedule (Regulations 14(e) 15, 30, 34)

Scale of fees in respect of business the remuneration for which is not otherwise prescribed

deed The fees for instructions shall be fair and polls, constitutions, declarations, affidavits, proposals, reasonable, having regard to the care and labour contracts and other documents or other matters of a required, the number and length of papers to non-contentious nature be perused, the nature and importance of the matter, the amount or value of the subject matter involved, the interest of the parties, complexity of the matter, and all the other circumstances of the case, but shall not be less than 200,000.

by not less than 75,000 electronic means, per 15 minutes or part of

where the fee is based on attendance and not less than 100,000 not on the time the advocate is engaged

documents not expressly provided for, including making copies of the documents and correspondences

shall be as considered reasonable in the circumstances, having regard to the same considerations as set out in this scale for the assessment of instructions, but not less than 100,000

an advocate is not entitled to a fee for witnessing (1) where the advocate has prepared, settled or 100,000. approved the document and the advocate is being remunerated according to this order; or

appropriate authority not less than 200,000

The fees shall be as set out under the second scale of the Third Schedule.

Debt collection-

7.5% of the amount exceeding 5,000,000 shillings but not exceeding 15,000,000 shillings; and

5% of the amount exceeding 15,000,000 shillings.

5% of the amount exceeding 15,000,000 shillings, but not exceeding 30,000,000; and

3% of the amount exceeding 30,000,000 shillings.

7.5% of the amount exceeding 5,000,000 shillings but not exceeding 15,000,000 shillings;

5% of the amount exceeding 15,000,000 shillings, but not exceeding 30,000,000 shillings;

3% of the amount exceeding 30,000,000 shillings but not exceeding 50,000,000 shillings; and

2% of the amount exceeding 50,000,000 shillings.

Sixth Schedule (Regulations 37, 57)

Scale of fees in High Court, magistrate courts, tribunals and arbitration matters

claim, defend or oppose shall be as follows (1) to sue or defend any case, whether commenced by plaint, statement of claim, petition, originating summons or originating motion, or to present or oppose an appeal, where the claim or value of the subject matter can be determined from the pleadings, settlement, a valuation or the judgment, the instruction fee shall be in accordance with the following scale-

Claim or value of subject matter Fees

14% of the amount exceeding 2,000,000 shillings but not exceeding 5,000,000 shillings; and

12% of the amount exceeding 5,000,000 shillings.

14% of the amount exceeding 2,000,000 shillings but not exceeding 5,000,000 shillings;

12% of the amount exceeding 5,000,000 shillings but not exceeding 10,000,000 shillings; and

10% of the amount exceeding 10,000,000 shillings.

Claim or value of subject matter Fees

14% of the amount exceeding 2,000,000 shillings but not exceeding 5,000,000 shillings;

12% of the amount exceeding 5,000,000 shillings but not exceeding 10,000,000 shillings;

10% of the amount exceeding 10,000,000 shillings but not exceeding 20,000,000; and

8% of the amount exceeding 20,000,000 shillings.

12% of the amount exceeding 5,000,000 shillings but not exceeding 10,000,000 shillings;

10% of the amount exceeding 10,000,000 shillings but not exceeding 20,000,000;

8% of the amount exceeding 20,000,000 shillings but not exceeding 50,000,000 shillings; and

5% of the amount exceeding 50,000,000.

14% of the amount exceeding 2,000,000 shillings but not exceeding 5,000,000 shillings;

12% of the amount exceeding 5,000,000 shillings but not exceeding 10,000,000 shillings;

10% of the amount exceeding 10,000,000 shillings but not exceeding 20,000,000;

8% of the amount exceeding 20,000,000 shillings but not exceeding 50,000,000 shillings;

5% of the amount exceeding 50,000,000 shillings but not exceeding 100,000,000 shillings; and

2% of the amount exceeding 100,000,000 shillings.

where the value of the subject matter can be determined from the statement of affairs, pleadings, settlement, a valuation or the judgment, the instruction fee shall be in accordance with the scale in item 1 of this schedule

an application for adoption or guardianship the fee shall be reasonable, but not less than 500,000 shillings

where and the circumstances in which work or a part of it was done, the time expended, the public interest and all other relevant circumstances, but the fees shall not be less than 5,000,000 shillings for petitions under the Local Governments Act and shall not be less than 10,000,000 shillings for petitions under the Parliamentary Elections Act

fees shall be a sum as the taxing officer considers reasonable, having regard to the amount of the subject matter, the nature, importance, complexity and novelty of the matter, but the fees shall not be less than 3,000,000 shillings

Note

Unless otherwise provided in this scale, the instruction fee allowed under items 1 to 10 of this Schedule, shall include all the work necessarily and properly done in connection with the case which is not otherwise chargeable, including perusals.