Advocates (Remuneration & Taxation of Costs) Regulations, 1982

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

The taxing officer may tax costs between advocate and client on application by either party; if a client applies on a summarised or block bill the taxing officer must give the advocate an opportunity to file an itemised bill; due notice of the taxation date must be given to both parties and both are entitled to attend and be heard.

After due notice, an advocate who fails without reasonable excuse to appear for taxation, or who delays or causes unnecessary expense, must forfeit their fees on the order of the taxing officer and pay any unnecessary expenses; the taxing officer may proceed with the taxation ex parte.

The provisions of Part III of these Regulations shall apply, so far as practicable and in all appropriate respects, to any bill of costs under Part II which may require taxation.

The taxing officer may allow authorised costs that appear necessary or proper, but must not allow costs that appear to have been incurred through overcaution, negligence, mistake, special payments to witnesses or other unusual expenses (except against the party who incurred them).

Advocates (or unrepresented parties) must jointly identify any agreed costs, fees and expenses before taxation; the taxing officer must record those identified items and then tax the remaining items.

Clients must remunerate advocates of the High Court and that remuneration, and related taxation and taxation of costs, must follow these Regulations.

Defines “folio” as one hundred words and states counting rules for figures and items in accounts.

Advocates must not accept remuneration below the rates in these Regulations, except when the assessed remuneration would exceed one hundred thousand shillings; in that case the agreed fee must be at least one hundred thousand shillings.

If any business requires and receives exceptional dispatch, the advocate is entitled to and may receive additional remuneration, which is allowable only between advocate and client.

An advocate is entitled to receive a special fee for business of exceptional importance or unusual complexity, in addition to the remuneration provided in these Regulations.

An advocate may accept security from a client, and a client may give security to an advocate, to cover amounts due for the advocate's remuneration, disbursements and interest (interest not to commence until the amount is ascertained).

An advocate may charge interest at 6 percent per year on disbursements and costs.

When a bill of costs is lodged the registrar must, upon payment of the prescribed fee, give notice of the date and time fixed for taxation (not less than five days after issue unless the registrar allows a shorter time) and must send a copy with the bill to each endorsed advocate or person entitled to notice.

Advocates must follow prescribed scales of charges for various noncontentious conveyancing and general business as set out in the First to Fifth Schedules, subject to regulation 19.

Remuneration set out in the Schedules excludes stamps, auctioneer's or valuer's charges, travelling or hotel expenses, search or registration fees, costs of extracts, and other properly paid disbursements, but includes stationery charges and allowances for advocates and clerks and similar disbursements.

Defines what items are included in scale charges, lists specific exclusions, and sets that only one-third of scale remuneration is allowed for carbon-copy documents in noncontentious matters.

When calculating scale charges, the basis of the charge is the sum stated in the deed or document as price or consideration, or if none is stated, the value of the subject matter which is deemed to be one of three specified values.

An advocate may elect in writing, before or when rendering a bill of costs, that their remuneration be according to the Fifth Schedule to these Regulations.

If business in one transaction handled by an advocate falls under more than one Schedule category, each item is charged separately under the Schedule where it falls; parts not provided for are charged under the Fifth Schedule.

Regulations 21–28 govern how the First Schedule is applied; the term “the scales” (or similar) means the First Schedule charges as modified by any preceding regulation; and in regulations 21–28 certain terms (conveyance, mortgage, mortgagor, mortgagee) are to be read as specified alternative terms.

The vendor's advocate's fee for preparing a conveyance on a sale by auction is to be charged on each lot sold.

An advocate who represents both parties in a mortgage or a sale may charge the full advocate's charges of one party and half of the advocate's charges of the other party.

If an advocate acting for a building society uses a printed or stereotyped form of engrossment, mortgage or discharge, the fee payable to the mortgagee's advocate under the scale is reduced by one-quarter.

If the same advocate prepares a conveyance and a mortgage of the same property completed at the same time, that advocate is entitled to charge only half the scale fees for approving the mortgage deed.

When a conveyance and mortgage of the same property are completed together, an advocate who prepared one document and approved the other is entitled to charge only half the scale fees for the document they approved.

When a conveyance and mortgage of the same property are completed together, prepared by the same advocate, and the mortgagee is the vendor, the advocate is entitled to charge only one-half of the prescribed scale fee for approving the mortgage deed.

When property is sold subject to incumbrances, the incumbrances are treated as part of the purchase money for calculating conveyance charges, except if the mortgagee is the purchaser, in which case the charge is calculated on the price of the equity of redemption.

An advocate who approves a draft for several distinct but non-conflicting parties may charge the scale fee under the First Schedule for each party.

Regulations 30 to 35 govern how the Second Schedule applies to these Regulations.

If the vendor or lessor, at the purchaser's or lessee's request, furnishes an abstract of title, it must be charged for according to the Fifth Schedule to these Regulations.

If there is no agreement about costs, the lessee must pay the lessor's costs for preparing, completing and registering the lease and its counterpart.

If an advocate acts for both vendor and purchaser (or for both lessor and lessee), the advocate is entitled to charge the vendor's (or lessor's) advocate's charges and one-half of the purchaser's (or lessee's) advocate's charges.

The vendor's or lessor's advocate may charge four hundred shillings in addition when a mortgagor or mortgagee joins in a conveyance or lease.

If a party (other than a vendor or lessor) joining in a conveyance or lease is represented by a separate advocate, the charges of that separate advocate are to be calculated under the Fifth Schedule to these Regulations.

If a conveyance or lease is partly paid by a premium (money payment) and partly by rent, an additional sum equal to the remuneration under the First Schedule must be paid on the purchase at a price equal to the money payment or premium, in addition to the remuneration for the rent.

This Part of the Regulations applies to contentious matters and to taxation of costs between advocate and client and between party and party in contentious proceedings.

A bill of costs from contentious proceedings in the High Court and magistrates courts is to be taxed according to the rates in the Sixth Schedule, subject to any court order in a particular case.

Costs awarded are to be taxed and paid as between party and party unless the court expressly orders them to be as between advocate and client.

If the plaintiff did not give notice and the defendant pays at or before the first hearing, advocate's costs are not allowed except by order of the judge or magistrate.

If parties agree costs after proceedings, they may jointly request the registrar to record that agreement, and the registrar must record it upon payment of the same court fee payable for filing a bill of costs.

A judge must certify that more than one advocate was reasonable and proper for costs of multiple advocates to be allowed, considering factors such as amounts recovered or sued for and the nature, importance or difficulty of the case.

When the same advocate represents two or more plaintiffs or defendants and separate pleadings or proceedings occur, the taxing officer must consider whether those separate pleadings or proceedings were necessary and proper, and if any costs were unnecessarily or improperly incurred, those costs shall be disallowed.

The taxing officer must, unless the court or judge orders otherwise and when satisfied the defendants should have joined their defence, allow only one set of costs for the defendants and apportion those costs among them as the taxing officer deems fit.

If a party entitled to costs refuses or neglects to file or procure taxation of a bill of costs and thus prejudices another party, the taxing officer may certify that refusal or neglect and proceed to tax the other party's costs, or may allow the refusing party a nominal or other sum for costs to prevent prejudice.

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

The registrar must give the receiver notice of the appointment to tax any party-and-party bill of costs relating to the insolvency; the advocate or party lodging the bill must, on application and on payment of the proper fee, furnish the receiver a copy of the bill.

Bills of costs for taxation must be prepared in five columns with specific headings; disbursements shown separately at the foot of the bill; and fees for attending taxation placed at the end with the amount left blank for completion by the taxing officer.

Every bill of costs for taxation must be lodged with the registrar, endorsed with the names and addresses of the relevant advocates or persons entitled to receive notice, and accompanied by a copy for each such name.

A party who has submitted a bill of costs must not add to or alter the bill after it has been lodged for taxation, except with the parties' consent or by permission or direction of the court or taxing officer.

A defendant who has not appeared in person or by advocate does not need to be given notice of the taxation of costs.

Receipts or vouchers for disbursements charged in a bill of costs must be produced at taxation if the taxing officer requires them.

Advocates may certify the length of certain documents in writing; if that certificate is found erroneous the taxing officer has power to disallow the cost (or part of it).

When a bill of costs is taxed under a special order and the order shows the costs are payable otherwise than from the estate of an insolvent, minor, lunatic or deceased person, the taxing officer must record in the certificate of taxation who is to pay or the manner of payment.

The taxing officer has the power to proceed to taxation ex parte, limit or extend time for proceedings, and adjourn taxation hearings for proper cause.

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

If more than one-sixth of a bill of costs (excluding court fees) is disallowed on taxation, the taxing officer may disallow the costs of the taxation; the taxing officer's decision is final.

An advocate is entitled to charge their client the fees prescribed by the Sixth Schedule in causes and matters before the High Court and magistrates courts.