Roko Construction Limited v Pearl Marina Estates Limited [2025] UGHC 141
High Court
· 2025
Appeal Partly Allowed
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Holding
A Registrar lacks jurisdiction to tax party-and-party costs in arbitral proceedings where the arbitrator awarded costs but did not quantify them. However, the Registrar has jurisdiction to ascertain half of the fees and expenses of the arbitral tribunal under section 31(9)(b) of the Arbitration and Conciliation Act, and to tax costs awarded by the Court in enforcement proceedings. Appeal allowed in part.
Outcome
Matter remitted to Assistant Registrar to tax costs in accordance with the judgment
Facts
Roko Construction Limited won an arbitration award (CAD/ARB/NO.04/2022) which was recognised and registered for enforcement by the High Court in Misc. Cause 046/2023. Pearl Marina Estates Limited's subsequent application to set aside the award (Misc. Cause 066/2023) was dismissed with costs to Roko Construction. Roko Construction then filed Taxation Application 471/2024 seeking to tax costs. The Assistant Registrar dismissed the taxation application on jurisdictional grounds, holding that she lacked mandate to apportion or distribute legal expenses because the arbitrator had awarded costs but not quantified them, and no application for an additional award under section 33 of the Arbitration Act had been made. Roko Construction appealed, arguing that once the arbitral award became a decree of court, the Registrar gained power to tax the costs.
Issues
- Whether the Assistant Registrar erred in law when she held that she lacked jurisdiction to apportion legal expenses awarded by an arbitrator where the arbitrator did not quantify those costs.
- Whether the Assistant Registrar erred in law when she inquired into and interfered with the merits of a decree duly passed by a court of competent jurisdiction.
- Whether the Assistant Registrar erred in law when she refused to tax the bill of costs filed before her without reasonable cause.
Orders
- Appeal succeeds in part.
- Appellant awarded half of the costs of the appeal.
- Appellant to file a bill of costs compliant with the findings of the Court.
Rules and key headnotes
Taxation of Costs — Registrar's Jurisdiction — Party-and-Party Costs in Arbitral Proceedings
A Registrar of the High Court has no jurisdiction to tax party-and-party costs arising from contentious matters undertaken in arbitral proceedings, as distinct from advocate-client costs. The jurisdiction conferred by the Advocates Act and the Advocates (Remuneration and Taxation of Costs) Rules extends only to taxation of costs as between party and party in contentious matters in the High Court, not in proceedings outside court litigation such as arbitration.
Costs of Arbitration — Determination and Apportionment — Exclusive Jurisdiction of Tribunal
By virtue of section 31(9)(a) of the Arbitration and Conciliation Act, the costs and expenses of an arbitration including the legal and other expenses of the parties, the fees and expenses of the arbitral tribunal and any other expenses related to the arbitration shall be as determined and apportioned by the arbitral tribunal in its award. The arbitral tribunal has exclusive jurisdiction to determine and apportion such costs, not the courts.
Costs of Arbitration — Meaning of Determine and Apportion — Assessment of Quantum
Determining and apportioning costs under section 31(9)(a) of the Arbitration and Conciliation Act entails deciding who of the parties is liable for costs and the reasons why (determination), as well as deciding to what extent each party must bear those costs (apportionment). Apportionment includes quantification and is not complete until the tribunal has assessed the quantum of costs. The conjunctive use of 'and' signifies that both determination and apportionment are required components of a costs award.
Costs of Arbitration — Default Provision Where Award is Silent — Section 31(9)(b)
In the absence of an award determining and apportioning the costs and expenses of arbitration, section 31(9)(b) of the Arbitration and Conciliation Act provides that each party shall be responsible for its own legal and other expenses and for an equal share of the fees and expenses of the arbitral tribunal and any other expenses relating to the arbitration. This default provision operates where the arbitrator has determined liability for costs but has not apportioned (quantified) them.
Enforcement of Arbitral Awards — Recovery of Tribunal Fees — Court's Jurisdiction
Section 31(9)(b) of the Arbitration and Conciliation Act creates a vested legal right for a successful party who has paid all the fees and expenses of the arbitral tribunal to recover half of them from the award debtor. Courts have jurisdiction and are empowered during enforcement proceedings to ascertain and grant relief for recovery of the successful party's advance on arbitration fees and charges made on behalf of the defaulting party, as the statute apportions such fees equally by quantifying the recoverable amount as half of what was billed.
Taxation of Costs — Costs of Enforcement Proceedings — Registrar's Jurisdiction
A Registrar has jurisdiction to tax costs awarded by the court in enforcement proceedings relating to an arbitral award. Where a party has been awarded costs by the court in an application for setting aside an arbitral award, those costs are properly taxable by the Registrar as costs incident to court proceedings, not arbitral proceedings.
Legislation cited (23)
- Arbitration and Conciliation Act s.9
- Arbitration and Conciliation Act s.31(9)(a)
- Arbitration and Conciliation Act s.31(9)(b)
- Arbitration and Conciliation Act s.33(1)(a)
- Arbitration and Conciliation Act s.33(4)
- Arbitration and Conciliation Act s.33(5)
- Arbitration and Conciliation Act s.34
- Arbitration and Conciliation Act s.36
- Arbitration and Conciliation Act s.38(1)(b)
- Arbitration and Conciliation Act s.38(2)(b)
- Advocates Act s.62(1)
- Advocates Act s.62(2)
- Advocates Act s.80
- Advocates (Remuneration and Taxation of Costs) Rules r.2
- Advocates (Remuneration and Taxation of Costs) Rules r.51
- Arbitration Rules r.10
- Civil Procedure Act s.27(1)
- Civil Procedure Rules O.50 r.3
- Civil Procedure Rules O.50 r.4
- Civil Procedure Rules O.50 r.6
- Civil Procedure Rules O.50 r.7
- Constitution of the Republic of Uganda 1995 Art.145
- Judicature Act s.43
Cases cited (35)
- Mohamed Kalisa v Gladys Nyangire Karumu and 2 Others (Supreme Court Civil Reference No. 139 of 2013)
- Banco Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1998)
- Mbogo and Another v Shah [1968] 1 EA 93
- Father Nanensio Begumisa and 3 Others v Eric Tiberaga (Supreme Court Criminal Appeal No. 17 of 2000)
- Lovinsa Nankya v Nsibambi [1980] HCB 81
- National Insurance Corporation v Mugenyi and Company Advocates [1987] HCB 28
- Wasswa J Hannington and Another v Ochola Maria Onyango and 3 Others [1992-93] HCB 103
- Devji v Jinabhai (1934) 1 EACA 89
- HK Shah and Another v Osman Allu (1974) 14 EACA 45
- Patel v R Gottifried (1963) 20 EACA 81
- Haji Nadin Matovu v Ben Kiwanuka (Supreme Court Civil Application No. 12 of 1991)
- Sheikh Jama v Dubat Farah [1959] 1 EA 789
- Hussein Janmohamed and Sons v Twentsche Overseas Trading Co Ltd [1967] 1 EA 287
- Thomas James Arthur v Nyeri Electricity Undertaking [1961] 1 EA 492
- Karoli Mubiru and 21 Others v Edmond Kayiwa [1979] HCB 212
- Peter Mugoya v James Gidudu and Another [1991] HCB 63
- Murisho Shafi and 5 Others v Attorney General and Another (Constitutional Application No. 2 of 2017)
- Florence Dawaru v Angumale Albino and Another (High Court Miscellaneous Civil Application No. 96 of 2016)
- Kaggwa Michael v Apire John (High Court Miscellaneous Application No. 1 of 2023)
- Transworld Safaris (K) Ltd v Eagle Aviation Limited and 3 Others [2012] eKLR
- Golden Homes (Management) Limited v Mohammed Fakruddinn Abdullai and Another [2019] eKLR
- Tramountana v Atlantic Shipping [1978] 2 All ER 870
- Fence Gate Ltd v NEL Construction Ltd [2001] APP LR 12/05
- Katamba Phillip and 3 Others v Magala Ronald (Arbitration Cause No. 3 of 2007)
- Attorney General and Uganda Land Commission vs James Mark Kamoga and James Kamala
- Babpcon U Ltd v Mbale Resort Hotel Limited (Court of Appeal Civil Appeal No. 87 of 2011)
- Communities Economic Development Fund v. Canadian Pickles Corp. [1991] 3 S.C.R. 388
- R. v. Kelly [1992] 2 S.C.R. 170
- Hosseini v. Oreck Chernoff 1999 BCCA 386, 65 B.C.L.R. (3d) 182
- A. Ram Mohan v. State, CRL.R.C. No. 265 of 2015
- M/s Sahara India (Firm), Lucknow v. Commissioner of Income Tax (2008) 300 ITR 403 (SC)
- Ashby v White (1703) 92 ER 126
- Ex parte United States, 257 U.S. 419, 433 (1922)
- Ratemo Oira & Company Advocates v Kenya Steel Fabricators Limited [2014] eKLR
- Leary v Leary [1987] 1 All ER 261
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.
Roko Construction Limited v Pearl Marina Estates Limited 2025 UGHC 141 (24 March 2025)
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