Wakilii

Ababiku v Ariyo (Miscellaneous Civil Application No. 4 of 2015)

High Court · [2017] UGHCEP 2 · 2017 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Three consolidated applications arising from taxation of costs in an election petition — Application No. 4 of 2015 sought re-taxation of applicant's bill; Application No. 31 of 2015 sought review and setting aside of taxation; Application No. 37 of 2015 sought extension of time to file reference
Decision
Applicant Ababiku's applications partly allowed; respondent Eriyo's application dismissed; award of shs. 18,752,000 sustained; award of shs. 4,691,000 set aside and remitted for reassessment

Observed later treatment

Cited — treatment unverified cited in 2 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

No adverse treatment recorded Cited 2 times with no adverse treatment recorded; not yet tested on the merits. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

Held that where a litigant changes advocates mid-trial after withdrawing instructions from the first firm and filing a notice of withdrawal, and the court declines to grant a certificate for two counsel, only costs of one counsel are recoverable. A consent order on costs entered into by an advocate after instructions have been withdrawn is null and void. Where a joint bill of costs is filed by multiple law firms representing the same litigant, absent a certificate of two counsel, only one set of legal fees may be allowed, to be apportioned among the firms. The Taxing Officer correctly taxed the consolidated bill as a single award. However, costs of the day awarded when a party is absent from court cover only disbursements, not instruction fees.

Outcome

Applicant Ababiku's applications partly allowed; respondent Eriyo's application dismissed; award of shs. 18,752,000 sustained; award of shs. 4,691,000 set aside and remitted for reassessment

Facts

Hon. Ababiku Jesca defeated Ms. Eriyo Jesca Osuna in the 2011 parliamentary election for Adjumani District Woman Member of Parliament. Ms. Eriyo filed an election petition which was dismissed on 29 February 2012 with costs to Hon. Ababiku but without a certificate for two counsel. During the petition, Hon. Ababiku had initially engaged M/s Bwambale, Musede & Co. Advocates to file her answer, but withdrew instructions on 8 June 2011 and replaced them with M/s Ssekaana Associated Advocates & Consultants and M/s Okello-Oryem Co. Advocates, who represented her jointly until judgment. On 7 May 2013, counsel for Ms. Eriyo entered a consent order on costs with M/s Bwambale for shs. 10,000,000. The two replacement firms then filed a consolidated bill of costs including work done by all three firms. The Taxing Officer allowed shs. 18,752,000 on 8 January 2015, treating the bill as if filed by one firm. Three applications arose: Hon. Ababiku sought re-taxation claiming the award was too low; Ms. Eriyo sought to set aside the award as erroneous given the consent; Hon. Ababiku also sought extension of time to challenge a separate costs award of shs. 4,691,000 for days when she was absent from court.

Issues

  1. Whether Hon. Ababiku Jesca is entitled to recover costs of all three law firms that represented her in her defence against High Court Election Petition No. 2 of 2011
  2. Whether the consent order on costs entered into by Ms. Eriyo Jesca Osuna with M/s Bwambale, Musede & Co. is valid and binding on Hon. Ababiku Jesca
  3. Whether the Taxing Officer erred in law and fact regarding the manner in which he taxed the various party and party bills of costs presented to court for taxation by both parties
  4. Whether there are procedural irregularities in the manner in which any of the three applications were placed before this court

Orders

  • The consent order on costs of 7th May 2013 between counsel for Ms. Eriyo Jesca Osuna and M/s Bwambale, Musede & Co. Advocates is set aside as null and void.
  • The award of shs. 18,752,000/= made by the Taxing Officer in respect of the combined bill of costs filed by M/s Ssekaana Associated Advocates & Consultants with M/s Okello-Oryem Co. Advocates is sustained as taxed.
  • The award of shs. 4,691,000/= as costs of the day to Ms. Eriyo Jesca Osuna is set aside and the bill of costs is remitted to the Taxing Officer for reassessment.
  • Each party to bear its own costs of the consolidated application.

Rules and key headnotes

Civil Procedure — Costs — Party and Party Costs — Indemnity Principle
Party and party costs are awarded as an indemnity to the successful litigant, not as complete compensation, and are intended to cover only costs reasonably and necessarily incurred in pursuing or defending the litigation. The successful party cannot recover charges merely for conducting litigation more conveniently, which are considered luxuries and must be paid by the party incurring them.
Civil Procedure — Change of Advocates — Authority to Compromise — Effect of Withdrawal of Instructions
Where a client has withdrawn instructions from an advocate and filed a notice of withdrawal in court, the advocate loses all authority to act on behalf of the client, including authority to compromise or enter into consent orders. Any consent order entered into by such an advocate after withdrawal of instructions is null and void and not binding on the client.
Civil Procedure — Costs — Multiple Advocates — Certificate of Two Counsel
Where a litigant engages multiple law firms to provide joint representation but the trial court declines to grant a certificate for two counsel, only costs of one counsel are recoverable. In the absence of a certificate, the litigant cannot be indemnified more than once for the same work, irrespective of how many law firms were engaged. The legal fees awarded must be apportioned among the firms that participated in the representation.
Civil Procedure — Costs — Joint Representation — Division of Fees Between Advocates
Where two or more advocates from different firms jointly undertake to represent a client in a matter, absent an agreement to the contrary, they are entitled to share equally in the compensation, regardless of which advocate furnished the most labour and skill. Each participant in the joint representation is assumed to have contracted for his or her pro rata share of the fee by failing to stipulate otherwise before undertaking the representation.
Civil Procedure — Costs — Costs of the Day — Disbursements Only
An award of costs for the day covers only necessary and reasonable expenses or disbursements incurred by the party, counsel and witnesses on that day. It does not include instruction fees. A Taxing Officer who includes instruction fees in taxing costs of the day applies a wrong principle, and the resulting award is manifestly excessive and must be set aside.
Civil Procedure — Appeal from Taxing Officer — Grounds for Interference
A judge will not interfere with the Taxing Officer's assessment of quantum of costs unless it is shown that the Taxing Officer applied a wrong principle, took into account irrelevant factors, omitted to consider relevant factors, or the amount awarded is manifestly excessive or manifestly low so as to justify an inference of error in principle. Even where an error in principle is shown, the judge should interfere only if satisfied that the error substantially affected the decision on quantum and that upholding the amount would cause injustice.

Legislation cited (14)

Cases cited (21)

  • Haji Haruna Mulangwa v Sharif Osman (Supreme Court Civil Reference No. 3 of 2004)
  • Orient Bank Limited v Avi Enterprises Limited (Court of Appeal No. 2 of 2013)
  • Rwabuganda v. Bitamisi
  • Attorney General v James Mark Kamoga (Supreme Court Civil Appeal No. 8 of 2004)
  • Makula International
  • Muhamda alibai v. Bukenya
  • Tobin and Twomey v. Kerry Foods Ltd., [1999] 1 I.L.R.M. 428
  • Gundry v. Sainsbury [1910] I KB 645
  • Dyotte v. Reid (1876) 10 I.L.T.R. 110
  • Malkinson v. Trim [2003] 2 All ER 356
  • Fullerton v. Matsqui, 74 B.C.L.R. (2d) 311
  • Adams v. London improved Motor Coach Buildirs Ltd., [1921] 1 K.B. 495
  • McCann v. Todd, 203 La. 631, 14 So. 2d 469 (1943)
  • Komisarow v. Lansky, 219 N.E.2d 913 (Ind. Ct. App. 1966)
  • First American Bank of Kenya v. Shah and others, [2002] 1 EA 64
  • Pallock House Ltd v. Nairobi Wholesalers Ltd. (No.2) [1972] E.A. 172
  • Nankya Buladina and another v. Bulasio Konde [1979] HCB 239
  • Hansraj Raumal Shah v. Westlands General Stores Properties Ltd. and another [1965] EA 642
  • B. M. Technical Services v. Francis Rugunda [1999] KALR 821
  • Lenina Kemigisha Mbabazi and Starfish Limited v Jing Cheng International Trading Limited (High Court Miscellaneous Application No. 344 of 2012)
  • Bank of Uganda v Banco Arabe Espanol (Supreme Court Civil Application No. 23 of 1999)

Cases citing this judgment (2)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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Ababiku v Ariyo (Miscellaneous Civil Application No. 4 of 2015) [2017] UGHCEP 2 (6 July 2017)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.