Wakilii

Mujungu v Mbaju (Miscellaneous Application 3 of 2023)

High Court · [2023] UGHCCD 200 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review and setting aside of assessment of costs and execution proceedings arising from an earlier election petition
Decision
Application for review dismissed. Taxed costs and execution proceedings upheld.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the application for review of the assessment of costs and execution proceedings. The court held that the applicant failed to establish any error apparent on the face of the record warranting the exercise of review jurisdiction. The execution was not premature as a pending review application does not operate as a stay of execution absent a specific order for stay, and the applicant's earlier applications for stay had been dismissed. Taxation of separate bills against different losing parties to the same decree does not constitute double execution. The applicant had consented to the taxed costs and participated fully in the taxation proceedings.

Outcome

Application for review dismissed. Taxed costs and execution proceedings upheld.

Facts

The applicant and respondent contested the 2021 parliamentary election for Busongora County South. The applicant won but the respondent filed Election Petition No. 09 of 2021, which was initially dismissed. On appeal, the Court of Appeal set aside the High Court judgment, ordered a fresh election, and awarded costs of the appeal, cross-appeal, and petition to the respondent. The applicant won the by-election. The respondent proceeded to tax costs and filed Execution Miscellaneous Application No. 74 of 2022 before the registrar. The costs against the Electoral Commission were settled by consent at UGX 76,800,000. The costs against the applicant were taxed and allowed at UGX 183,618,000. The registrar allowed execution and issued a warrant of arrest against the applicant. The applicant filed Civil Application No. 600 of 2022 for review before the Court of Appeal and Civil Applications No. 854 and 855 of 2022 for stay and interim stay of execution, which were dismissed. The applicant then brought this application to review and set aside the assessment of costs and execution.

Issues

  1. Whether the applicant has sufficient grounds for review of the assessment of costs and execution proceedings under Section 82 of the Civil Procedure Act and Order 46 of the Civil Procedure Rules.
  2. Whether the execution was premature given the pending application for review before the Court of Appeal.
  3. Whether the taxation of two separate bills of costs against different parties to the same decree amounted to double execution.
  4. Whether the execution process failed to follow due process in the absence of a notice to show cause.
  5. Whether the execution process amounted to variation of the consent order.

Orders

  • Application dismissed with costs to the respondent.
  • Miscellaneous Applications Nos. 16 and 17 of 2023 for stay and interim stay of execution also dismissed with no order as to costs.

Rules and key headnotes

Review of Judgment — Grounds — Error Apparent on Face of Record
An error apparent on the face of the record refers to an evident error which does not require extraneous matter to show its incorrectness. It is an error so manifest and clear that no court would permit it to remain on the record. A mere erroneous decision is not an error apparent on the face of the record. Where an error has to be established by a long-drawn process of reasoning or on points where there may conceivably be two opinions, it cannot be said to be an error apparent on the face of the record.
Execution — Stay of Execution — Pending Appeal or Review
An application for review has the same effect as a pending appeal in that both seek to challenge the decision of court based on some ground. However, a pending appeal or application for review does not act as a stay of execution and neither does it bar taxation of costs. A party filing an appeal or application for review must take the extra step of applying for a stay of execution; only if granted will taxation of costs and attendant execution be halted.
Taxation of Costs — Separate Bills Against Different Parties
Where costs are awarded against multiple respondents to a petition or appeal, it is proper for the successful party to file different bills of costs against the different losing parties. This does not constitute double execution of a single decree, particularly where the different respondents may have taken different steps in the proceedings resulting in different costs.
Consent Orders — Setting Aside — Review Application
The court cannot set aside a consent judgment or consent order in taxation proceedings through an application for review when there is nothing to show that counsel entered into the consent without instructions. Where counsel is acting for a party in a case and his instructions have not been terminated, he has full control over the conduct of the proceedings and apparent authority to compromise all matters connected with the action.
Review — Proper Remedy Against Taxing Master's Decision
The proper remedies available to a person aggrieved by a decision of a taxing master are a reference to a Judge or an appeal under Section 62 of the Advocates Act. Such an appeal must be filed within thirty days from the date of the decision. An application for review should not be allowed as a disguised appeal after the time for appeal has expired.

Legislation cited (6)

Cases cited (8)

  • Kakooza v Electoral Commission and Another (Election Petition No. 11 of 2007)
  • Col (Rtd) Dr Kizza Besigye v Museveni and Another (Election Petition No. 1 of 2001)
  • Hon Ababiku Jesca v Eriyo Jesca Osuna (Consolidated Miscellaneous Applications No. 4, 31 & 37 of 2015)
  • Uganda Taxi Operators and Drivers Association v Uganda Revenue Authority (Civil Application No. 24 of 2017)
  • Re-Nakivubo Chemist (u) Ltd (1979) HCB 12
  • Attorney General and Others v Boniface Byanyima (HCMA No. 1789 of 2000)
  • Levi Outa vs. Uganda Transport Company [1995] HCB 340
  • Lenina Kemigisha Mbabazi and Starfish Limited v Jing Cheng International Trading Limited (High Court Miscellaneous Application No. 344 of 2012)

Full judgment

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

Mujungu v Mbaju (Miscellaneous Application 3 of 2023) [2023] UGHCCD 200 (31 May 2023)
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.