Advocate Client Costs And Party To Party Costs In Kenya

By Jerameel Kevins Owuor Odhiambo

The Kenyan legal system distinguishes between advocate-client costs and party to party costs to ensure clarity and fairness in the award and recovery of legal fees in civil litigation. Advocate-client costs represent the compensation agreed between a client and their advocate for legal services, while party-to-party costs are those recoverable from the losing party by the winning party as determined by the court. This duality serves both to safeguard the client–advocate relationship and to discourage frivolous litigation, balancing private agreement with court-sanctioned cost awards founded in statute and judicial rules.

The principal legal framework for these costs is established under the Advocates Act and the Advocates (Remuneration) Order, 2014, both of which are promulgated under the authority of section 44 of the Advocates Act. The Advocates Act empowers the Chief Justice, not the Law Society of Kenya, to prescribe and regulate advocates’ remuneration. The specific details for calculation, taxation, and recovery of advocate-client and party-to-party costs are found in the Remuneration Order, which acts as a statutory tariff and procedural guide.

Advocate-client costs are set according to agreements between clients and advocates, typically reflecting the scope of legal work, complexity, skill required, and time expended. The Advocates Act section 45 allows parties to agree on advocate remuneration, and while it does not insist that all agreements be in writing, clarity is enhanced by written terms. If there is no explicit agreement, the fees default to those prescribed in the Remuneration Order. These costs encompass all necessary expenditures, including work done outside litigation, and tend to be higher and more comprehensive than party-to-party costs, recognizing the full commercial relationship.

Party-to-party costs, in contrast, are recoverable by the successful litigant from the unsuccessful party as a consequence of litigation. The authority to award these costs derives from the Civil Procedure Rules, 2010, specifically Order 21 rule 9, which embodies the principle that “costs follow the event.” However, the amount and calculation are governed strictly by the applicable schedules in the Advocates (Remuneration) Order, 2014. Party-to-party costs aim to indemnify, but not enrich, the successful litigant, compensating for reasonable expenses incurred in prosecuting or defending the suit.

A key distinction lies in their quantification and intent.  Advocate-client costs typically include all work done on the client’s behalf, potentially covering advice, correspondence, and auxiliary actions not strictly required for the actual litigation. Conversely, party-to-party costs are limited to those steps deemed reasonable and requisite for the conduct of the proceedings, as determined by the Remuneration Order and subject to judicial scrutiny for necessity and proportionality.

The taxation process serves as the safeguard for both cost types. Taxation is handled by registrars or designated taxing officers of the High Court, who scrutinize each item in a bill of costs to ensure they are justifiable and reasonable under the Remuneration Order. For advocate-client costs, taxation is triggered if the client challenges the advocate’s charges or where statutory requirements for bill delivery have not been met. For party-to-party costs, taxation is generally necessary prior to enforcement, preventing excess or duplicative claims and maintaining fairness to the paying party.

Despite this rigor, the system faces persistent challenges. The difference between actual advocate-client costs and recoverable party-to-party costs can be significant, sometimes leaving the successful party substantially out of pocket. The detailed and sometimes slow taxation process adds another layer of complexity and potential delay, while the prescribed scales may lag behind economic and professional realities, especially in complex or high-value civil litigation.

These limitations directly influence access to justice and litigation strategy. The partial indemnity of party-to-party costs can deter litigants with meritorious claims where the potential gap between real expenses and recoverable sums is substantial. On the other hand, the costs regime also discourages frivolous or speculative lawsuits, since unsuccessful parties must bear the other side’s costs to the extent permitted by the Remuneration Order. This dynamic encourages prudent litigation strategies and promotes settlement, particularly where the financial risks of an adverse judgment are clear.

Kenya’s approach reflects principles common to many Commonwealth jurisdictions, but could benefit from reforms seen elsewhere. Proposals have included updating tariff rates more frequently to reflect market conditions, simplifying and digitizing the taxation process, and broadening judicial discretion to adjust for case complexity and public interest factors. The possibility of greater use of alternative fee arrangements, case management powers, and transparent guidance on proportionality all features of recent reforms in England and South Africa are also debated in policy circles.

In conclusion, the Advocates Act and Advocates (Remuneration) Order anchor Kenya’s cost-shifting framework and set out clear, enforceable standards for both advocate-client and party-to-party costs. While these rules are robust, ongoing judicial oversight and periodic reviews are necessary to ensure that the system remains fair, clear, and attuned to evolving realities. Meaningful reform should target efficient administration, up-to-date scales, and transparent criteria for cost recovery, ultimately promoting access to justice while ensuring the fair remuneration of legal professionals.

The writer is a legal researcher and lawyer