Wakilii

Malek v Minister of Justice of Republic of South Sudan (Taxation Cause No.3 of 2020)

East African Court of Justice · [2020] EACJ 43 · 2020 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Taxation of costs arising from successful Reference No. 9 of 2017
Decision
Bill of costs taxed and allowed at USD 212,190.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Taxing Officer taxed the bill of costs at USD 212,190, comprising instruction fees of USD 170,000, VAT of USD 30,600, disbursements of USD 374.20, and USD 11,216 for other items. Instruction fees were assessed by considering the nature and importance of the underlying reference (removal of a Court of Appeal Judge without due process), the interest of the parties, and universal principles of cost taxation. Disbursements without receipts were disallowed in accordance with Rule 4 of the Third Schedule.

Outcome

Bill of costs taxed and allowed at USD 212,190.

Facts

The Applicant, Hon. Justice Malek Mathiang Malek, was a Judge of the Court of Appeal of the Republic of South Sudan. He was removed from office by Presidential decree without following the due legal process. The Applicant successfully challenged his removal in EACJ Reference No. 9 of 2017 and was awarded costs. He filed a bill of costs claiming USD 483,830.02, comprising instruction fees of USD 400,000, VAT, disbursements, and other charges. The Respondent, the Minister of Justice and Attorney General of South Sudan, conceded the bill in principle but suggested USD 300,000 as reasonable. The Taxing Officer was required to assess the bill in accordance with the scales and principles set out in the EACJ Rules of Procedure 2019.

Issues

  1. What is the appropriate amount of instruction fees to be awarded to the Applicant in the taxation of costs?
  2. Whether disbursements claimed without receipts should be allowed.
  3. What factors should guide the Taxing Officer in assessing instruction fees under Rule 9(2) of the Third Schedule?

Orders

  • Instruction fees taxed at USD 170,000.
  • VAT of 18% on instruction fees allowed at USD 30,600.
  • Disbursements allowed at USD 374.20 (air ticket only; telephone bills disallowed for lack of receipts).
  • Other items (attendances, perusals, drawings, copying) taxed at USD 11,216.
  • Total bill taxed at USD 212,190.

Rules and key headnotes

Taxation of Costs — Instruction Fees — Factors for Assessment
In assessing instruction fees, the taxing officer must exercise judicial discretion having regard to the amount involved, the nature, importance and complexity of the matter, the interest of the parties, other costs allowed, the general conduct of proceedings, the person to bear the costs, and all other relevant circumstances. Taxation of costs is not an exact science and each case must be decided on its own merits.
Taxation of Costs — Disbursements — Requirement for Receipts
Under Rule 4(2) and (3) of the Third Schedule of the EACJ Rules of Procedure 2019, receipts for disbursements must be produced to the taxing officer and served on the other party at least fourteen days before taxation. No disbursement shall be allowed which has not been paid at the time of taxation. Disbursements claimed without receipts are not recoverable.
Taxation of Costs — Universal Principles — Balancing Access to Justice and Fair Reimbursement
A successful litigant ought to be fairly reimbursed for costs reasonably incurred, but costs should not be allowed to rise to such levels as to confine access to justice to the wealthy. The taxing officer must balance these competing considerations in exercising discretion.
Judicial Officers — Removal from Office — Importance of Due Process
The removal of a serving Judge of the Court of Appeal without following the due legal process is a matter of significant importance touching on the independence of the judiciary, the rule of law, and the separation of powers. Such matters warrant substantial instruction fees in the taxation of costs.

Legislation cited (6)

  • East African Court of Justice Rules of the Court 2019, Third Schedule Rule 4(2)
  • East African Court of Justice Rules of the Court 2019, Third Schedule Rule 4(3)
  • East African Court of Justice Rules of the Court 2019, Third Schedule Rule 9(2)
  • East African Court of Justice Rules of the Court 2019, Third Schedule Rule 11(1)
  • East African Court of Justice Rules of the Court 2019, Third Schedule Rule 11(2)
  • East African Court of Justice Rules of Procedure Rule 129(3)

Cases cited (13)

  • Prof. Anyang Nyongo and 10 others v AG of Kenya and 13 others (Taxation Cause No. 6 of 2008)
  • Secretary General v Rt. Hon. Margaret Zziwa (Taxation Reference No. 1 of 2019)
  • Kenya Ports Authority v Modern Holdings Ltd (EACJ Reference No. 4 of 2010)
  • Joreth Limited v Kiqano and Associates (2002) 1 EA 1992
  • Plaxeda Rugumba v Hon. AG of Rwanda (Taxation Cause No. 2 of 2012)
  • James Alfred Koroso v AG of Kenya (Taxation Cause No. 1 of 2016)
  • Hon. Sam Niuba v Hon. Sitenda Sebalu (Taxation Cause No. 1 of 2013)
  • Hon. Sitenda Sebalu v Secretary General of EAC (Taxation Cause No. 4 of 2013)
  • Among Anita v AG of Uganda (Taxation Cause No. 5 of 2013)
  • Ismael Dabule and 1004 others v AG of Uganda (Taxation Cause No. 1 of 2020)
  • Secretary General v Rt. Hon. Margaret Zziwa (Consolidated Taxation Reference Nos. 1 and 2 of 2019)
  • Rt. Hon. Margaret Zziwa v The Secretary General (EACJ Reference No. 17 of 2014)
  • Premchard Raichand Ltd v Quarry Services of East Africa Ltd and others (No. 3) EA 162

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Malek v Minister of Justice of Republic of South Sudan (Taxation Cause No.3 of 2020) [2020] EACJ 43 (1 December 2020)
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.