Wakilii

Kiwanuka v Chand & Another (Civil Application 106 of 2003; Civil Application 107 of 2003)

Court of Appeal · [2003] UGCA 13 · 2003 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Consolidated references to a single Justice of Appeal from the decision and order of the taxing officer under Rule 109(1)
Decision
Respondent's bill of costs reduced to UGX 12,613,000 following the consolidated references

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

On consolidated references from a taxation, the single Justice held that interest allegedly charged on money borrowed to fund a court-ordered bank guarantee was not shown to be a legitimate cost legitimately incurred, the burden being on the claiming party, and declined to interfere with the taxing officer's disallowance. The Court further held that the instruction fee of UGX 40,000,000 was excessive because the taxing officer wrongly based assessment on the precedent set in the Supreme Court rather than the work done in the Court of Appeal, and reduced it to UGX 6,000,000. The bank charges of UGX 6,390,000 were upheld. The respondent's bill was reduced to UGX 12,613,000.

Outcome

Respondent's bill of costs reduced to UGX 12,613,000 following the consolidated references

Facts

Mohan Kiwanuka Musisi was unsuccessful in the Court of Appeal but won on appeal to the Supreme Court in a dispute concerning property under the Expropriated Properties Act. He filed a bill of costs of about UGX 124,338,864 against Asha Chand. The advocates agreed all items except item 1 (instruction fee of UGX 60,000,000), item 43 (bank charges of UGX 6,390,000 on a bank guarantee from Allied Bank), and item 44 (interest of UGX 53,866,762 allegedly charged at 21% by Visa Plastics Ltd on a loan of UGX 231,000,000 used to obtain the guarantee). The taxing officer allowed UGX 40,000,000 as instruction fee, allowed item 43, disallowed item 44, and taxed the bill at UGX 46,613,000. Both parties referred the matter to a single Justice. Kiwanuka challenged the disallowance of interest; Asha Chand challenged the instruction fee as manifestly excessive.

Issues

  1. Whether the taxing officer erred in refusing to allow interest charged on money borrowed to obtain a court-ordered bank guarantee as a legitimate cost.
  2. Whether the instruction fee of UGX 40,000,000 awarded was manifestly excessive.
  3. Whether the bank charges of UGX 6,390,000 for the guarantee were properly allowed.

Orders

  • Reference No. 106 (Kiwanuka) dismissed; taxing officer's disallowance of interest upheld.
  • Reference No. 107 (Asha Chand) partly allowed.
  • Taxing officer's order set aside and substituted with a bill of costs of UGX 12,613,000.
  • Instruction fee reduced from UGX 40,000,000 to UGX 6,000,000.
  • Bank charges of UGX 6,390,000 upheld.

Rules and key headnotes

Costs — Taxation — Burden to prove costs legitimately incurred
A successful litigant is entitled to be fairly reimbursed only for costs legitimately incurred in litigation, and the burden lies on the party claiming an item to satisfy the taxing officer that the particular expense was legitimately incurred; a private arrangement to borrow money at interest, unsupported by correspondence, is not a legitimate cost.
Costs — Taxation — Assessment of instruction fees
Instruction fees in an appeal must be assessed by reference to the work actually done by counsel in that court, not by reference to the precedent or jurisprudential novelty the case later established in a higher court, and there is no mathematical formula for assessing such fees.
Costs — Taxation — Reference to single Justice and interference with taxing officer's discretion
A single Justice on a reference under Rule 109(1) will interfere with a taxing officer's award where the officer misapplied the law to the circumstances or took into account matters not directly connected with the work done, such as exchange rate movements or precedent established on appeal.

Legislation cited (3)

Cases cited (4)

  • Makura International Vs Cardinal Nsubuga [1982] H.C.B 11
  • Bank of Uganda Vs Arabe Espanol (supra)
  • Departed Asian Property Custodian Board v Jaffer Brothers Ltd (Civil Appeal No. 13 of 1999)
  • Registered Trustees of Kampala Institute v Departed Asian Property Custodian Board (Civil Appeal No. 3 of 1995)

Full judgment

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Kiwanuka v Chand & Another (Civil Application 106 of 2003; Civil Application 107 of 2003) [2003] UGCA 13 (10 December 2003)
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.