Wakilii

Ms Kimanje Nsibambi Advocates v Tamale and Another (Misc Cause 145 of 2020)

High Court · [2024] UGHCLD 168 · 2024 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for taxation of an advocate-client bill of costs arising from legal services alleged to have been rendered by the applicant law firm to the respondents
Decision
Application partly allowed. Leave granted to tax the advocate-client bill of costs with costs awarded to the applicants at 50%.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a Power of Attorney cannot be construed as an enforceable remuneration agreement under sections 48 and 51 of the Advocates Act where it fails to meet mandatory requirements. However, where a law firm demonstrates it rendered legal services to clients who instructed the firm through their agents (the donees of the Power of Attorney) and the clients are liable to pay costs for work done, the firm is entitled to taxation of its advocate-client bill on the basis prescribed in the Fifth Schedule of the Advocates (Remuneration and Taxation of Costs) Regulations. The firm is not entitled to claim a percentage of property value where no sale transaction was completed.

Outcome

Application partly allowed. Leave granted to tax the advocate-client bill of costs with costs awarded to the applicants at 50%.

Facts

The applicant law firm claimed it had been instructed by the respondents via a Power of Attorney dated 13 June 2016, which appointed Mrs Resty Nakayenga Kiguli and Mr Moses Mpanga as donees to act on behalf of the respondents in matters relating to the estate of their late father Tamale Antoni. Clause 1 of the Power of Attorney specified that the donees should execute their duties with the applicant firm. The firm rendered legal services including applying for a special certificate of title for land comprised in Kyadondo Block 243 Plot 1348 at Luzira, Nakawa Division. The firm demanded payment of UGX 890,900,000, representing 10% of the land value as stipulated in clause 4 of the Power of Attorney. The respondents denied instructing the firm, stating they only appointed the donees, and that the Power of Attorney was later revoked on 24 July 2018. The respondents contended no advocate-client relationship existed. Cross-examination revealed that one respondent's signature appeared on documents drawn by the firm, and that the donee Mrs Nakayenga would take the respondents to the firm's offices when legal work was needed.

Issues

  1. Whether the application is competent before this court?
  2. Whether an Advocate-Client relationship exists between the Firm and the Tamales?
  3. Whether the Tamales instructed the Firm as alleged, and if so, whether the Firm executed the instructions?
  4. Whether there is an agreement for remuneration between the Tamales and the Firm?
  5. Whether the Firm is entitled to have its Bill of costs taxed?

Orders

  • Leave granted to Tax the Advocates-Clients Bill of costs.
  • Taxation to be done on the basis prescribed in the Fifth Schedule under Regulation 14(e) and 15 of the Advocates (Remuneration & Taxation of Costs) Regulations, as Amended.
  • Applicants awarded 50% of the costs of this application on account that their application succeeds only partially.
  • Award carries interest at 6% per annum from the date of this Ruling until the date payment is made in full.

Rules and key headnotes

Advocates' Remuneration — Requirements for Enforceable Remuneration Agreements
A Power of Attorney cannot be construed as an enforceable remuneration agreement within the meaning of sections 48 and 51 of the Advocates Act where it fails to meet the mandatory requirements specified in section 51(1), namely: the agreement must be in writing and signed by the person to be bound by it; it must contain a certificate signed by a notary public to the effect that the nature of the agreement was explained to the person bound and that person appeared to understand it; and a copy of such certificate must be sent to the Secretary of the Law Council by prepaid registered post.
Agency — Powers of Attorney — Nature and Effect
A Power of Attorney creates a fiduciary relationship between the donor (the principal) and the donee (the agent), by which the former gives to the latter power and authority to act on his or her behalf in respect of specific or general matters, such authority being conferred within the four corners of the instrument either in express terms or by necessary implication. The law firm drafting or witnessing a Power of Attorney is neither the donor nor the donee and therefore the Power of Attorney cannot be construed as an agreement between the donors and the firm.
Advocates' Remuneration — Establishing Advocate-Client Relationship Through Agency
Under the interpretation section 1 of the Advocates Act, a client includes any person who, as a principal or on behalf of another, or in any capacity, has power to retain or employ and retains or employs an advocate, and any person who is or may be liable to pay an advocate any costs. Where a client grants a Power of Attorney to agents with express instructions that the agents should execute their duties with a named law firm, and the client subsequently signs documents prepared by that firm and attends the firm's offices for legal work, an advocate-client relationship is established and the client is liable to pay costs (fees, charges, disbursements, expenses and remuneration) for work done.
Advocates' Remuneration — Basis for Taxation Where No Remuneration Agreement Exists
Where no valid remuneration agreement exists between an advocate and client, and where the transaction or sale envisaged as the basis for percentage-based remuneration was never completed, the advocate is not entitled to claim a percentage of property value but may apply for taxation of costs on the basis prescribed in the Fifth Schedule under Regulation 14(e) and 15 of the Advocates (Remuneration and Taxation of Costs) Regulations, as amended.
Preliminary Objections — Objections of Mixed Fact and Law
A preliminary objection that is not purely of law but of mixed fact and law ought to be raised in the respondent's pleadings (affidavits in answer) and not at the stage of submissions, to enable the applicant to respond appropriately with evidence. Where an objection is raised from the bar at the submissions stage without supporting evidence or reference to legislation, and the applicant produces contradictory evidence from the bar, the court may presume the position shown by the applicant's evidence prima facie.

Legislation cited (16)

Cases cited (1)

  • Frederick J.K Zaabwe v Orient Bank Ltd and 5 Others (SCCA No. 04 of 2006)

Full judgment

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

Ms_Kimanje_Nsibambi_Advocates_v_Tamale_and_Another_(Misc_Cause_145_of_2020)_[2024]_UGHCLD_168_(24_June_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.