Wakilii

Buwembo Sarah Kakumba v Samuel Kiwanuka & Anor (Civil Appeal No. 1670 of 2013)

High Court · [2014] UGHCEBD 6 · 2014 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from taxation of bailiff's bill of costs arising from execution proceedings in Makindye Chief Magistrate's Court
Decision
Warrant of arrest set aside; taxation to be conducted afresh; costs awarded to appellant against 1st respondent.

Observed later treatment

Cited — treatment unverified cited in 1 (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 1 time 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 a warrant of arrest for committal to civil prison must be preceded by a notice to show cause, in compliance with the rule of natural justice that no one should be condemned unheard. The warrant issued without such notice was unlawful and set aside. Where a warrant is unlawful, the judgment debtor cannot be liable for the bailiff's costs; instead, the judgment creditor who applied for the unlawful warrant must bear those costs. The taxation conducted ex parte without proper notice to the judgment debtor's counsel was also improper and set aside.

Outcome

Warrant of arrest set aside; taxation to be conducted afresh; costs awarded to appellant against 1st respondent.

Facts

The appellant was the defendant in Civil Suit No. 100 of 2010 at Makindye Chief Magistrate's Court. The parties resolved the suit by consent judgment ordering the appellant to pay UGX 16,071,500. When the appellant defaulted, the 1st respondent (plaintiff/judgment creditor) applied for a warrant of arrest for committal to civil prison. Before arrest, the appellant paid the decretal sum and the Registrar Execution halted the execution. The 2nd respondent (bailiff) then filed his bill of costs against the appellant for taxation. The appellant objected, arguing the judgment creditor should pay. The Taxing Master overruled her objection. On the taxation date, the appellant's counsel sought adjournment to attend Law Society training, but the Taxing Master adjourned to another date and taxed the bill ex parte without notice to the appellant.

Issues

  1. Whether it was mandatory for a notice to show cause to be issued before issuing a warrant of arrest for committal to civil prison.
  2. Whether the bailiff was entitled to costs when execution was not completed.
  3. Whether the judgment debtor was liable to pay the bailiff's costs when execution had been stayed by court.
  4. Whether the Assistant Registrar erred in taxing the bailiff's bill of costs ex parte.
  5. Whether the bailiff's bill of costs was taxed in accordance with the Judicature Court Bailiffs Rules.

Orders

  • The warrant of arrest issued by the Registrar of Execution was unlawful for offending against the natural rule of justice and is set aside.
  • The bailiff's bill of costs shall be taxed afresh in accordance with the Second Schedule to the Judicature Court Bailiffs Rules and shall reflect the measure of partial execution the bailiff actually carried out.
  • The 1st Respondent (judgment creditor) shall meet the bailiff's taxed bill of costs.
  • The 1st Respondent shall pay the Appellant's costs in this appeal.
  • Appeal allowed.

Rules and key headnotes

Civil Procedure — Execution — Warrant of Arrest — Notice to Show Cause
A warrant of arrest for committal to civil prison in execution of a money decree must be preceded by a notice calling upon the judgment debtor to show cause why he or she should not be committed to civil prison, notwithstanding the apparent discretionary language ('may') in Order 22 rule 34(1) of the Civil Procedure Rules, as the rule must be construed in accordance with the fundamental principle of natural justice that no one should be condemned unheard.
Civil Procedure — Natural Justice — Right to be Heard
No rule of procedure may contravene or override any principle of natural justice; producing a person before court under arrest without having afforded such person the prior opportunity to be heard is unacceptable and constitutes a breach of natural justice that cannot be allowed to stand.
Civil Procedure — Costs — Liability for Bailiff's Costs
Where a warrant of arrest is unlawful, the judgment debtor cannot be liable for costs incurred by the bailiff in executing that warrant; instead, the judgment creditor who applied for and caused the issuance of the unlawful warrant must meet the bailiff's costs.
Civil Procedure — Taxation — Bailiff's Fees — Partial Execution
Where court stays execution and a bailiff has only partially carried out the execution process, the instruction fee allowed by court on taxation should be less than what it would have been had the execution process gone up to the sale of items attached or arrest of the judgment debtor, and must reflect the work actually done.
Civil Procedure — Taxation — Ex Parte Proceedings
A court should not be too quick to conduct a taxation hearing ex parte when it has information on record explaining a party's absence, particularly where counsel's absence is due to attendance at professional training that adds value to the administration of justice; proceeding ex parte and adjourning to another date without notice to the absent party is improper.
Civil Procedure — Taxation — Bailiff's Fees — Applicable Scale
The remuneration of court bailiffs must be in accordance with the scale of fees specified in the Second Schedule to the Judicature Court Bailiffs Rules, and any taxation of a bailiff's bill of costs done outside the provisions of these Rules is unlawful and cannot be allowed to stand.
Civil Procedure — Appeals — Requirement of Extracted Decree
The extraction of a formal decree embodying the decision complained of is no longer a legal requirement in the institution of an appeal; an appeal by its nature is against the judgment or reasoned order and not the decree extracted therefrom, and such a requirement would be a mere technicality that cannot coexist with Article 126(2)(e) of the Constitution which enjoins courts to administer substantive justice without undue regard to technicalities.

Legislation cited (6)

Cases cited (12)

  • Kisule v Nampewo [1984] HCB
  • Yoana Yakuze v Victoria Nakabembe [1988-1990] HCB 132
  • Roberto Biiso v May Tibamwenda [1991] HCB 92
  • Kibuuka Musoke William & Anor v Dr Apollo Kaggwa (Court of Appeal Civil Appeal No. 46 of 1997)
  • Banco Drabe Espanol v Bank of Uganda (Court of Appeal Civil Appeal No. 42 of 1998)
  • Mbakana Mumbere v Maimuna Mbabazi (High Court Civil Appeal No. 3 of 2003)
  • Tumuhairwe Lucy v The Electoral Commission & Anor (High Court Civil Appeal No. 2 of 2011)
  • John Byekwaso & Anor. vs. Yudaya Ndagire (Per Tuhaise J.)
  • Kemigisha Mbabazi v Jing Cheng International Ltd (High Court Miscellaneous Application No. 344 of 2012)
  • Federico Sebirumbi v Joseph Konde (1994) IV KALR 44
  • Hajji Hassan Bin Abudul Azizi v Ramazani Bin Razabo [1977] HCB 39
  • Comesa Technology (U) Ltd v David G Mushabe (High Court Execution Civil Appeal No. 1906 of 2013)

Cases citing this judgment (1)

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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Buwembo Sarah Kakumba v Samuel Kiwanuka & Anor (Civil Appeal No. 1670 of 2013) [2014] UGHCEBD 6 (17 November 2014)
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.