Kenyans to pay more for litigation

By KURIAN MUSA

The cost of litigation in the country is expected rise as the new rates for advocates fees come into effect.

Chief Justice Willy Mutunga gazetted official rates for advocates’ fees on Wednesday with the last comprehensive review having been done eight years ago.

Mutunga prescribed the remuneration order upon consideration of recommendations by the Council of the Law Society of Kenya.

“It is a constitutional requirement to ensure that legal fees are not so high as to impede access to justice, and that trade in legal services is not cartel-driven which impose artificially high prices on consumers,” said Mutunga.

The remuneration order went through a wide consultation involving the Law Society of Kenya (LSK), the Commission for the Implementation of the Constitution (CIC), and he Competition Authority (CA).

The rates were reviewed further by an internal committee headed by Justice George Odunga of the High Court whose membership included Justice Kanyi Kimondo, Chief Magistrate Anthony Kimani, economists and policy analysts before being released.

Kenyan law under Section 44 of the Advocates Act (Cap 16) gives the Chief Justice power to prescribe the remuneration of Advocates for their professional work in such manner as he thinks fit.

Also, the Architectural Association of Kenya (AAK), the Kenya Bankers Association (KBA), the Association of Professional Societies in East Africa (APSEA), economists and other stakeholders were involved in the review.

In 2012, Mutunga received the proposed remuneration rates by the Council of the Law Society of Kenya, reflecting a general increase in fees of between 80 to 100 per cent. He subjected the proposals to public scrutiny before releasing them, having received written opinions from the Constitution Implementation Commission.

The committee was able to negotiate with the LSK Council for a general increase in fees in the range of 40 per cent, down from the 80 – 100 per cent originally proposed. Past reviews have resulted in increments within a similar range.

Two underlying issues that would elicit public debate were taken into account by the chief Justice while issuing the advocated rate card.

One, while it is his statutory duty , issue whether it is desirable in an open and free economy such as Kenya to set legal fees and fix legal prices, as opposed to letting such fees or prices be determined competitively by market forces.

Second, even if it is agreed that legal fees and prices should be prescribed and regulated, whether or not that power should vest in the Chief Justice, if at all.

“I hope these questions will be deliberated on thoroughly and settled by the time proposals for the next revisions are made,” Mutunga said.

Dr Mutunga added: “I thank all of those involved in generating the new Advocates Remuneration (Amendment) Order, 2014, for being alive to the fact that while it is necessary to attract the best minds into the legal profession and to compensate advocates fairly.”

Lawyers have welcomed the new rates. The Standard spoke to lawyer Harrison Kinyanjui who said: “The costs of litigation will shoot up definitely, some of the areas like call rates, three minutes calling a client will attract Sh 120 and any work done beyond office hours will attract higher rates.”

Former LSK Chairman Okong’o Omogeni said the new rates are good for lawyers as now rent, wages for employees in the law firms and overhead costs will be manageable.

“The economic situation in the country had put litigants in a hard situation,” Okong’o said sharing the same sentiments with LSK member Charles Kanjama.

Kanjama told the Standard in an interview that it was long overdue since the rates were implemented.

“They are good to common man as everyone can now know how much a Lawyer can charge and ones aggrieved, a client can lodge a cost tax case accordingly,” he said.