Wakilii

Ekanya v Nyaketcho (Miscellaneous Appeal 291 of 2023)

High Court · [2023] UGHC 106 · 2023 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from taxation decision of the Registrar arising from costs award following Court of Appeal judgment in election petition matter
Decision
Appeal allowed; instruction fees reduced from UGX 40,000,000 to UGX 6,000,000; professional fees and disbursements items 2-19 and 32-48 set aside

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that instruction fees must reflect the stage at which proceedings conclude. Where an election petition is dismissed on a preliminary objection without proceeding to trial on merit, full instruction fees under Schedule 6 Rule 6 are not justified. The taxing master erred in awarding UGX 40,000,000 for defending a preliminary point of law. Applying Schedule 6 Rule 9 by analogy, instruction fees of UGX 6,000,000 were appropriate. Professional fees and disbursements relating to the entire petition were set aside as premature where the matter was remitted for retrial and those costs would be recoverable upon final determination.

Outcome

Appeal allowed; instruction fees reduced from UGX 40,000,000 to UGX 6,000,000; professional fees and disbursements items 2-19 and 32-48 set aside

Facts

The Respondent filed an election petition challenging the Appellant's election as Member of Parliament. Before trial, the Appellant raised a preliminary objection that the petition was incompetent because the supporting affidavit was commissioned by an advocate without a valid practicing certificate. The trial court upheld the objection and dismissed the petition. The Respondent appealed to the Court of Appeal, which overruled the preliminary objection and remitted the matter for trial on merit, awarding costs to the Respondent in both courts. The Respondent applied for taxation of costs. The Registrar awarded UGX 40,000,000 as instruction fees and allowed professional fees and disbursements for items relating to the entire petition. The Appellant appealed the taxation decision, arguing instruction fees should be limited to opposing the preliminary objection and that items relating to the full petition should not yet be awarded.

Issues

  1. Whether the award of UGX 40,000,000 as instruction fees for opposing a preliminary objection in an election petition was excessive.
  2. Whether professional fees and disbursements awarded for items relating to the entire election petition (rather than the preliminary objection) should be set aside where the petition was determined on a preliminary point of law that was later overruled on appeal.

Orders

  • Appeal allowed.
  • Award of UGX 40,000,000 for instruction fees set aside.
  • Respondent awarded UGX 6,000,000 (Six Million Shillings) for instruction fees in both courts.
  • Awards made under items 2-19 and 32-48 in Taxation Application No. 52 of 2022 set aside.
  • Costs of the application awarded to the Appellant.

Rules and key headnotes

Taxation of Costs — Instruction Fees — Election Petitions Determined on Preliminary Objection
Where an election petition is dismissed on a preliminary objection without proceeding to trial on merit, the successful party on appeal is not entitled to full instruction fees under Schedule 6 Rule 6 of the Advocates (Taxation of Costs) Regulations as if the petition had concluded on merit. Instruction fees must be commensurate with the stage reached and work actually done.
Taxation of Costs — Instruction Fees — Application of Schedule 6 Rule 9
Where the Advocates (Taxation of Costs) Regulations do not specifically provide for instruction fees for a particular interlocutory matter, the taxing officer should apply Schedule 6 Rule 9, which provides for reasonable fees in cases not specifically provided for, with a minimum of UGX 2,000,000 for instructions to sue or defend.
Taxation of Costs — Professional Fees — Premature Awards Where Matter Remitted for Retrial
Where a petition is dismissed on a preliminary point of law that is subsequently overruled on appeal and the matter is remitted for retrial, professional fees and disbursements relating to the full trial should not be awarded at the preliminary stage, as those costs will be recoverable upon final determination of the matter on merit.
Election Petitions — Costs — Distinction Between Preliminary Objection and Full Trial
It is not the intention of the legislature that an advocate who files an election petition and appears only on a preliminary objection without the case proceeding on merit would be remunerated in the same way as one who conducts the full trial. Logic and equity dictate that a case ending on a technicality cannot attract the same fees as one proceeding to full trial.

Legislation cited (10)

Cases cited (5)

  • Lumweno and Company Advocates v Trans-Africa Assurance Company Limited (Civil Appeal No. 0095 of 2004)
  • Jaber Twalib and Another v Global Hardwares Company Limited (HCT Civil Appeal No. 28 of 2016)
  • Dison Okumu & 8 others v Uganda Electricity Transmission Company Limited (Taxation Appeal No. 006 of 2019)
  • Kifamute v Uganda (SC Crim. Appeal No. 10/1997)
  • Makumbi and another v Sole Electrics (U) Ltd [1990-1994] 1 EA 306

Full judgment

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Ekanya v Nyaketcho (Miscellaneous Appeal 291 of 2023) [2023] UGHC 106 (20 November 2023)
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.