Wakilii

Electoral Commission v Kidega (CIVIL APPEAL No. 076 OF 2016)

High Court · [2019] UGHCCD 280 · 2019 Appeal Allowed — Taxation Remitted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from taxation order under section 62 of the Advocates Act challenging the quantum of costs awarded
Decision
Taxation order set aside and bill of costs remitted to the Deputy Registrar for taxation de novo

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that no costs are allowed for more than one counsel unless the trial judge certifies attendance as proper under Rule 41(1) of the Advocates (Remuneration and Taxation of Costs) Rules. A certificate of complexity is required before a taxing officer can assess enhanced legal fees on grounds of complexity. The Taxing Officer erred in law by awarding costs for two counsel and by considering complexity without the required certificates. The taxation order was set aside and the bill of costs remitted for taxation de novo.

Outcome

Taxation order set aside and bill of costs remitted to the Deputy Registrar for taxation de novo

Facts

The respondent successfully challenged the validity of a parliamentary election in an election petition against the Electoral Commission and the elected Member of Parliament. On 14 June 2016, judgment was entered in favour of the respondent with the Electoral Commission ordered to pay 50% of the costs. The respondent filed a bill of costs on 10 August 2016 claiming UGX 313,872,900. The Taxing Officer taxed the bill down to UGX 56,262,140 on 11 November 2016, awarding UGX 20,000,000 in instruction fees to each of two law firms representing the respondent (M/s Ladwar, Oneka & Co Advocates and M/s Ogik & Co Advocates), plus disbursements. The Electoral Commission appealed, arguing the Taxing Officer erred in awarding costs for two counsel without certification and in considering complexity without a certificate of complexity from the trial judge.

Issues

  1. Whether the Taxing Officer erred in allowing costs for two counsel without an order of the trial Judge to that effect.
  2. Whether the Taxing Officer erred in taking into account the complexity of the case without a certificate of complexity having been granted by the trial Judge.
  3. Whether the award of UGX 40,000,000 as instruction fees was excessive in the circumstances of the case.

Orders

  • Appeal allowed.
  • Taxation order dated 11 November 2016 set aside.
  • Bill of costs remitted back to the Deputy Registrar for taxation de novo.
  • Each party to bear their own costs of the appeal.

Rules and key headnotes

Taxation of Costs — Appeals from Taxation Orders — Scope of Appellate Intervention
An appellate court may intervene in a taxation order where there has been an error in principle, but questions solely of quantum are regarded as matters which taxing officers are particularly fitted to deal with and the court will intervene only in exceptional circumstances.
Taxation of Costs — Indemnity Principle — Only Reasonably Incurred Costs Recoverable
The principle of indemnity requires that only costs reasonably incurred, as opposed to all necessary costs, may be recovered. The successful party cannot be allowed to indulge in a luxury of payment and charges merely for conducting litigation more conveniently must be paid by the party incurring them.
Taxation of Costs — Certificate of Two Counsel — Requirement Under Rule 41(1)
No costs are allowed in respect of more counsel than one appearing in a proceeding unless the trial judge has certified under his or her hand that more than one advocate was reasonable and proper, having regard to the amount recovered, the relief awarded, or the nature, importance or difficulty of the case.
Taxation of Costs — Certificate of Complexity — Requirement for Enhanced Fees
A party may apply for a certificate of complexity where a higher fee is considered appropriate. The mere fact that counsel does research before filing pleadings is not of itself necessarily indicative of the complexity of the matter. A certificate of complexity will not be granted where the responsibility entrusted to counsel is quite ordinary and calls for nothing but normal diligence.
Taxation of Costs — Taxation De Novo — Conditions for Ordering
Taxation de novo will be ordered by an appellate court when the original taxation proceeded on the basis of a fundamental misapplication of the law. The conditions are conjunctive: (i) that the original taxation was null or defective; (ii) that the interests of justice require it; and (iii) no injustice will be occasioned to the other party.
Election Petitions — Costs — Proportionality to Parties' Means
While election petitions are of great importance to the democratic process, the trial court must be mindful that such proceedings are not commercial disputes between corporations involving millions of shillings but disputes between people of usually quite modest means. The tendency of parties to engage in disproportionate expenditure on legal costs has to be curbed.

Legislation cited (6)

Cases cited (9)

  • Thomas James Arthur v Nyeri Electricity Undertaking [1961] EA 492
  • Bank of Uganda v Banco Arabe Espanol (Supreme Court Civil Application No. 23 of 1999)
  • English v Emery Reimbold and Strick Limited [2002] 1 WLR 2409
  • Cullen v Chief Constable of the Royal Ulster Constabulary [2003] 1 WLR 1763
  • Malkinson v Trim [2003] 2 All ER 356
  • Fullerton v. Matsqui, 74 B.C.L.R. (2d) 311, 12 C.P.C. (3d) 319, 19 B.C.A.C. 284, 34 W.A.C. 284
  • McCann v. Todd, 203 La. 631, 14 So. 2d 469 at p. 472 (1943)
  • Pallock House Ltd v Nairobi Wholesalers Ltd (No 2) [1972] EA 172
  • First American Bank of Kenya v Shah and others [2002] 1 EA 64

Full judgment

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Electoral Commission Vs Kidega (CIVIL APPEAL No. 076 OF 2016) [2019] UGHCCD 280 (30 May 2019)
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.