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Mugisha v Aston Kajara and Another (Civil Appeal 2 of 2024)

High Court · [2024] UGHC 1045 · 2024 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from taxation of costs arising from a dismissed election petition
Decision
Instruction fees reduced from UGX 30,000,000 to UGX 20,000,000; total taxed costs reduced from UGX 40,110,000 to UGX 30,110,000

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court partially allowed an appeal from a taxation decision, finding that while the taxing officer properly proceeded with taxation despite non-appearance by the appellant, the instruction fees awarded (UGX 30,000,000) were excessive and reduced them to UGX 20,000,000. The Court overruled a preliminary objection on procedural grounds under Article 126(2)(e) of the Constitution, struck out the first respondent as improperly joined, and upheld the remainder of the taxed items. The appeal succeeded in part on quantum grounds only.

Outcome

Instruction fees reduced from UGX 30,000,000 to UGX 20,000,000; total taxed costs reduced from UGX 40,110,000 to UGX 30,110,000

Facts

The applicant was petitioner in Election Petition No. 004 of 2016, which was dismissed with costs on 26 June 2016. The Electoral Commission (2nd respondent) filed a bill of costs for taxation. The applicant alleged he was not properly served with the bill and taxation hearing notices, that no pre-taxation meeting was held, and that the respondents' advocates were not entitled to costs because they had not renewed their practicing certificates by the time they received instructions and filed pleadings in the election petition. The taxing officer proceeded ex parte after multiple attempts to serve the applicant and awarded instruction fees of UGX 30,000,000 as part of a total award of UGX 40,110,000. The applicant appealed, challenging both entitlement to costs and quantum.

Issues

  1. Whether the application is defective for having been commenced by Notice of Motion and not Chamber Summons.
  2. Whether this appeal is maintainable against the 1st respondent.
  3. Whether there was effective service of the bill of costs and taxation costs against the applicant and whether the failure to conduct a pre-taxation meeting renders the award in issue a nullity.
  4. Whether the respondent's counsel were entitled to instructions fees.
  5. Whether the instructions fees awarded to the respondents is in compliance with the law.
  6. Whether the other items of the bill were taxed in accordance with the remuneration rules and principles of taxation.

Orders

  • The award of shs 30,000,000/= (Thirty Million Shillings) as instructions fees is set aside and in lieu thereof the court awards a sum of shs 20,000,000/=.
  • The final award of shs 40,110,000/= is set aside and in lieu thereof a sum of shs 30,110,000/= is awarded.
  • Each party shall bear its own costs.
  • The 1st Respondent (Aston Peterson Kajara) is struck out as a party to the appeal.

Rules and key headnotes

Civil Procedure — Taxation of Costs — Procedural Irregularity — Notice of Motion versus Chamber Summons
Where an appeal from a taxation decision is wrongly brought by Notice of Motion instead of Chamber Summons as required by regulation 3 of the Advocates (Taxation of Costs) (Appeals and References) Regulations, but the application correctly cites the enabling law and the court has jurisdiction to grant the reliefs sought, the procedural error is curable under Article 126(2)(e) of the Constitution and does not divest the court of jurisdiction.
Civil Procedure — Taxation of Costs — Pre-Taxation Meeting — Non-Appearance by Paying Party
Where a party is properly served with a bill of costs and taxation hearing notices but chooses not to appear or participate in the taxation proceedings, the taxing officer has discretion to proceed and tax the bill without holding a pre-taxation meeting, notwithstanding that such a meeting is ordinarily a procedural requirement.
Administrative Law — Advocates — Practicing Certificates — Instructions Received Before Renewal
An advocate who receives instructions and prosecutes a case to its logical conclusion is entitled to recover instruction fees through court process provided that the advocate held a valid practicing certificate during the material period of the case, even if the certificate had not yet been renewed at the precise date when instructions were first received. The instruction fee covers all successive work from receiving instructions to conclusion of the case, and entitlement depends on whether the advocate practiced without a valid certificate during the substantive conduct of the case.
Civil Procedure — Taxation of Costs — Burden of Proof — Allegations of Lack of Practicing Certificate
The burden lies on the party challenging an advocate's entitlement to costs on grounds of lacking a valid practicing certificate to prove that the advocate had no valid practicing certificate at the time instructions were received and pleadings filed. Failure to discharge this burden means the challenge must fail.
Civil Procedure — Taxation of Costs — Instruction Fees — Quantum — Election Petitions
Rule 6 of the Sixth Schedule to the Advocates (Remuneration and Taxation of Costs) Regulations prescribes a minimum instruction fee of UGX 10,000,000 for election petitions under the Parliamentary Elections Act. The taxing master has discretion to award a higher amount taking into account the nature, importance, complexity, novelty, place and circumstances of the work, time expended, public interest, and all other relevant circumstances. A court on appeal should not interfere with the taxing officer's award unless it is shown to be manifestly excessive or manifestly low.
Civil Procedure — Taxation of Costs — Instruction Fees — Consistency in Awards
To ensure consistency in awards of instruction fees for election petitions, the taxing master should have regard to the range of awards made by judges and the Court of Appeal in matters of similar nature, while allowing for distinguishing factors specific to the case at hand.

Legislation cited (12)

Cases cited (17)

  • Sitenda Sebalu v Sam K. Njuba and Electoral Commission (Supreme Court Election Appeal No. 26 of 2007)
  • Saggu v Road Master Cycles (U) Ltd [2002] 1 EA 258
  • Prof. Syed Huq v Islamic University in Uganda (Civil Appeal No. 47 of 1995)
  • Erlen Sin the case of Holgate v Slight 21 (QB) 74
  • Makula International Ltd v His Eminence Cardinal Nsubuga Wamala & Anor (1982) HCB
  • Mugisha Vincent v Aston Peterson Kajara & Anor (Taxation Reference No. 313 of 2019)
  • Kwesiga James v Mugisha Robert (HCtMA No. 25 and 65 of 2019)
  • Bank of Uganda v Banco Arabe Espanol (SC Civil Application No. 23 of 2019)
  • Thomas James Arthur v Nyeri Electricity Undertaking [1961] EA 492
  • Gulu Institute of Health Science v Bwomu Gerald (HCCA No. 163 of 2016)
  • The Administrators of the Estate of the Late Barbara Lakeli v JWB Kiwanuka & 3 Others (Taxation Appeal No. 003 of 2013)
  • Makumbi and Another v Sole Electrics (U) Ltd [1990-1994] 1 EA 306
  • Obiga Kania v Wadri Kassiano Ezati and Another (CA Civil Reference No. 32 of 2004)
  • Lanyero Sarah Ocheng & Anor v Lanyero Molly (Court of Appeal Ref No. 225 of 2013)
  • Dr. Isamat Abraham v Dr. Epetait Francis (Misc. Application No. 43 of 2015)
  • Electoral Commission & Anor v Hon Abdu Katuntu (Misc. Appeals No. 1 of 2009 and 2 of 2010)
  • Brenda Nabukenya v Rebecca Nalwanga Balwana (Taxation Reference No. 7 of 2012)

Full judgment

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Mugisha v Aston Kajara and Another (Civil Appeal 2 of 2024) [2024] UGHC 1045 (21 October 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.