Wakilii

Kwesiga v Mugisha (HCT-01-LD-MA 30 of 2021)

High Court · [2024] UGHC 747 · 2024 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from taxation decision by Assistant Registrar regarding assessment of costs for interlocutory application
Decision
Appeal partly allowed; taxed costs reduced from UGX 4,168,000 to UGX 3,518,000

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the failure to conduct a pre-taxation meeting under Regulation 13A is a procedural irregularity curable under Article 126(2)(e) and not a ground for setting aside a regular taxation award, especially where the party frustrated the meeting. The Court is bound to apply the Advocates Remuneration Rules as amended in 2018 and must exercise any discretion judicially within established principles. Appeal partly allowed; instruction fee reduced from UGX 1,500,000 to UGX 1,000,000 and two items taxed off, reducing the total award from UGX 4,168,000 to UGX 3,518,000.

Outcome

Appeal partly allowed; taxed costs reduced from UGX 4,168,000 to UGX 3,518,000

Facts

The respondent obtained a taxation award of UGX 4,168,000 in Taxation Application No. 039 of 2023 arising from an interlocutory application (Misc. Application No. 0065 of 2019) that was dismissed by the Assistant Registrar. The appellant challenged this award on grounds that no pre-taxation meeting was held as required by Regulation 13A, that instruction fees of UGX 1,500,000 were excessive, and that numerous specific items were taxed contrary to the Remuneration Rules. On 1 November 2023, counsel for the appellant indicated he had not been served with the bill; court ordered service and adjourned to 16 November 2023. On that date, counsel for the appellant did not appear and respondent's counsel stated a pre-taxation meeting could not be conducted because appellant's counsel was not cooperative. The appellant was present and sought an adjournment. On 19 December 2023, appellant's counsel was again absent and the taxing master proceeded to tax the bill.

Issues

  1. Whether the failure to conduct a pre-taxation meeting rendered the award in Taxation Application No. 38 of 2023 a nullity.
  2. Whether the awards contested by the appellant are in accordance with the Advocates (Remuneration and Taxation of Costs) Regulations as amended by statutory instrument no. 7 of 2018.

Orders

  • Award in item 1 reduced to UGX 1,000,000.
  • Awards in items 17 and 32 taxed off.
  • Award of UGX 4,168,000 set aside and respondent instead awarded UGX 3,518,000 as taxed costs.
  • Each party to bear their own costs since the appeal only partly succeeded.

Rules and key headnotes

Taxation of Costs — Pre-Taxation Meeting — Mandatory or Directory Requirement
The requirement under Regulation 13A of the Advocates (Remuneration and Taxation of Costs) Regulations to conduct a pre-taxation meeting is a procedural requirement and not a mandatory requirement with the effect of causing a regular award to be set aside. The failure to conduct such a meeting is an irregularity curable under Article 126(2)(e) of the Constitution, not a ground for nullifying a taxation award unless it can be demonstrated that a party genuinely committed to the meeting was prejudiced by the failure to conduct it.
Taxation of Costs — Interpretation of Statutory Provisions Using 'Shall'
Where a statutory provision uses the verb 'shall' but does not provide consequences for non-compliance, the court must determine whether the legislature intended the provision to be mandatory or directory by considering the whole scope and purpose of the enactment, the importance of the provision, its significance as a protection of individual rights, and whether serious public inconvenience would result from treating it as mandatory. The emphasis should be on the consequences of non-compliance and whether Parliament can be fairly taken to have intended total invalidity.
Taxation of Costs — Powers of Taxing Officer — Ex Parte Taxation
Under Rule 54 of the Advocates (Remuneration and Taxation of Costs) Regulations, the taxing officer has power to proceed to taxation ex parte in default of appearance of either or both parties or their advocates. Where a party defaults on appearance or frustrates the taxation, the taxing officer has powers to proceed and tax the bill even in the absence of a pre-taxation meeting. A party who frustrates a pre-taxation meeting cannot later rely on the absence of such a meeting as grounds to set aside the taxation award.
Taxation of Costs — Application of Advocates Remuneration Rules — Discretion of Taxing Officer
Under the current legal framework where parties are represented by advocates, the taxing master must conduct taxation of a bill of costs to the fullest extent possible in compliance with the Advocates (Remuneration and Taxation of Costs) Regulations as amended in 2018. Any discretion allowed to the taxing master should be judiciously exercised guided by established taxation principles and case law to ensure awards that are fair, reasonable and proportionate to the expenses incurred by a successful party.
Taxation of Costs — Instruction Fees — Exercise of Discretion Above Minimum
Where Schedule 6 of the Advocates (Remuneration and Taxation of Costs) Regulations sets a minimum fee (such as UGX 300,000 for instructions to make or oppose interlocutory applications) but no maximum, any award above the minimum falls within the discretion of the court which must be exercised in accordance with established principles of taxation. In determining the appropriate amount, the court considers the uniqueness and complexity of the application, the work involved, and the number of court appearances.
Taxation of Costs — Principles Governing Assessment — Appellate Review
Save in exceptional cases, a judge should not interfere with the assessment of what the taxing officer considers to be a reasonable fee, as questions of quantum are matters with which the taxing officer is particularly fitted to deal and has more experience than the judge. An exceptional case is where it is shown expressly or by inference that in assessing the quantum the taxing officer exercised or applied a wrong principle, which may be inferred from an award that is manifestly excessive or manifestly low.

Legislation cited (4)

Cases cited (14)

  • Omakenyi Silver v Osekeny Alex Micheal (Taxation Appeal No. 0044 of 2022)
  • Walakira Jacob v Nakalanzi Rose (High Court Taxation Appeal No. 02 of 2019)
  • Sitenba Sebalu v Sam K. Njuba & Anor (Supreme Court Election Appeal No. 26 of 2007)
  • The Secretary of State for Trade and Industry vs. Langridge (1991) 3 All ER 591
  • Regina vs. Soneji and another [2005] UKHL 49
  • Attorney General's Reference (No.3 of 1999)
  • Project Blue Sky Inc. vs. Australian Broadcasting Authority (1998) 194 CLR 355
  • Makula International Ltd v Cardinal Nsubuga (1982) HCB 11
  • Bank of Uganda v Banco Arabe Espanol (Supreme Court Civil Application No. 23 of 1999)
  • Thomas James Arthur v. Nyeri Electricity Undertaking, [1961] EA 492
  • Gulu Institute of Health Science v Bwomu Gerald (High Court Civil Appeal No. 163 of 2016)
  • Administrators of the Estate of Barbara Lakeli v JWB Kiwanuka & 3 Others (Taxation Appeal No. 003 of 2013)
  • Centenary Rural Development Bank Ltd v Biira Khighambo (High Court Taxation Appeal No. 027 of 2022)
  • Makumbi and another v Sole Electrics (U) Ltd [1990-1994] 1 EA 306

Full judgment

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Kwesiga v Mugisha (HCT-01-LD-MA 30 of 2021) [2024] UGHC 747 (16 August 2024)
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.