In most commercial suits the losing party is ordered to pay the winner’s costs, but not automatically at the amount the advocate has charged. Recovery is governed by the Advocates Remuneration Order.
What is the difference between party-and-party and client costs?
Client costs are what an advocate charges the client under their own retainer. Party-and-party costs are what the losing party must pay, and they are usually lower. The Advocates Remuneration Order, made under the Advocates Act (lsk.or.ke), prescribes how fees are computed, including instruction fees that scale with the value of the subject matter, together with routine items such as filing and attendance. A client may remain liable for more than the other side recovers, which is the practical meaning of the gap between the two scales.
How are costs quantified?
Costs follow the event under the Civil Procedure Act (Cap 21): the successful party is ordinarily entitled to them, subject to the court’s discretion. The winning party draws a bill of costs, which is lodged with the Deputy Registrar for taxation. The taxing master hears the parties, applies the Remuneration Order schedules and any justified instructions, and issues a certificate of taxed costs, which can then be enforced like any other decree.
Can a taxation decision be challenged?
Yes. A party aggrieved by the taxing master’s decision may bring a reference to a judge of the High Court within the period allowed by the rules, disputing specific items or the exercise of discretion. References succeed on identified errors of principle, not on a general sense that the figure was too high.
Litigants should budget on the realistic assumption that taxed party-and-party costs will not cover the full invoice, and weigh that against the strength of the claim before filing. The same arithmetic applies in arbitration, where costs follow the award: our arbitration and ADR practice advises on both settings, and our practice areas page sets out the wider litigation work. Kenya Law (kenyalaw.org) publishes the Civil Procedure Act and related rules.
For guidance on your specific situation, contact CS Advocates LLP, call, WhatsApp, or book a confidential consultation at our Westlands, Nairobi office.