KENYA Law and Practice Contributed by: Ahmednasir Abdullahi, Asli Osman, Peter Muchoki and Elizabeth Wangui Mungai, Ahmednasir Abdullahi Advocates LLP
• pass any decree and make any order which ought to have been made by the lower court. In criminal appeals, the Court of Appeal and the High Court (on first appeal) are empowered under Sections 354 and 361 of the Criminal Procedure Code (Cap. 75) to confirm, reverse, or vary the conviction or sentence, order a retrial, or make any order that justice requires. 11. Costs 11.1 Responsibility for Paying the Costs of Litigation The general rule is that the unsuccessful party is ordinarily ordered to pay the costs of the successful party. These costs typically include legal fees, court filing fees and expenses incurred in the proceedings. The court retains discretion to depart from such rule depending on the circumstances of the case, such as misconduct by a party or partial success on claims. The costs awarded to the successful party are recov- ered by claiming such costs through a Bill of Costs filed in the same court. The Bill of Costs is heard by a Deputy Registrar who assesses the costs sought against the losing party and such costs must align with the guidelines in the Advocates Remuneration Order. Once the taxing master assesses the costs recover- able, the prevailing party may pursue the recovery of such costs through the normal execution chan- nel under Order 22 of the Civil Procedure Rules as a decree of the court. 11.2 Factors Considered When Awarding Costs The court exercises discretion when awarding costs, by considering the nature of the dispute, and the con- duct of parties throughout the proceedings, including whether or not any party acted unreasonably, caused unnecessary delays or engaged in abusive litigation tactics. The extent of a party’s success is also rel- evant; where a party succeeds only partially, the court may apportion costs accordingly.
The court may also consider the parties’ conduct out- side of court, such as attempts to negotiate or co- operate in pre-trial procedures, as well as statutory guidance, practice directions, and professional norms in determining what constitutes reasonable costs. 11.3 Interest Awarded on Costs Interest can be awarded on costs at a rate not exceed- ing 14% per annum. The interest accruing is added to the costs awarded and is recoverable alongside the costs. 12. Alternative Dispute Resolution (ADR) 12.1 Views of ADR Within the Country Alternative dispute resolution (ADR) in Kenya is strongly embedded within the country’s legal and con- stitutional framework, which expressly directs courts to promote alternative forms of dispute resolution, including reconciliation, mediation, arbitration, and traditional dispute resolution mechanisms. Arbitration, mediation, and negotiation are the most widely used. Arbitration is particularly common in commercial contracts, construction disputes, and cross-border trade, and it is governed by the Arbitra- tion Act, 1995 (as amended in 2010). The judiciary has invested in systems that promote alternative dispute resolution, including, but not limited to, Court-Annexed Mediation and Alternative Justice Systems Policy. Mediation has grown in prominence following the launch of the Court-Annexed Mediation Programme in 2015, which is now fully operational in the Family and Commercial Divisions of the High Court. Negotiation, though informal, remains a widely used first option in employment disputes, debt settle- ments, and business conflicts. Traditional dispute resolution also plays a role, espe- cially in land and family disputes, provided it does not contravene the Constitution or principles of justice. 12.2 ADR Within the Legal System The Kenyan legal system actively promotes ADR through both legislation and judicial practice. Under
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