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

No advocate may agree or accept his remuneration at less than that provided by this Order.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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

Companies formations, incorporations and registrations

Trademarks

Estates

Uncompleted transactions and other business

Patents, designs and utility models

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.

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—

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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).

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.

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).

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.

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.

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.

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.

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.

Rules 43 to 48 shall govern the application of Schedule 2.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 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.

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.

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.

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.

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.

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.

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.

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.

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.