[2024] UGHCCD 191

# 5 **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KAMPALA**

### **(CIVIL DIVISION)**

#### **TAXATION APPEAL NO. 006 OF 2022**

### **(Arising from Taxation Application Nos. 0154, 0155 & 0156 of 2021)**

10 **MUKESH SHUKLA BABUBHAI ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT**

#### **VERSUS**

**SENYONYI JOEL BESEKEZI ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

### **BEFORE: HON. JUSTICE ESTA NAMBAYO**

#### **JUDGEMENT**

15 The Applicant, Mukesh Shukla Babubhai, being dissatisfied with the ruling of the Deputy Registrar of this court, filed this Appeal under **Section 62 (1) of the Advocates Act** and **Regulation 3 of the Advocates (Taxation of Costs) (Appeals and Reference) Regulations**, seeking for orders of this court that the costs taxed and allowed in Election Petition No. 09 of 2021 be revised and reviewed downwards as well as all the applications 20 arising therefrom, and that costs of this appeal be provided for.

The grounds of this Appeal are set out in the affidavit in support of the appeal sworn by Mukesh Shukla Babubhai dated 12th July, 2022 but briefly are that: -

- **1. The Appellant was the Petitioner in Election Petition No. 09 of 2021 at the Civil Division of the High Court of Uganda against the Respondent and the Electoral** 25 **Commission and he lost.** - **2. He was dissatisfied with the amounts allowed in the taxed bill.** - **3. The Appellant applied to the Civil Division of the High Court of Uganda for typed proceedings and the decision in the matter which were served upon counsel for the Respondent.**

- 30 **4. The Appellant is yet to receive a certified copy of the typed proceedings of the said taxation.** - **5. The costs allowed in the respective bills of costs of the Respondent are high, excessive and unconscionable in the circumstances of the case.** - **6. The costs allowed are not in line with the regulations governing the taxation of** 35 **costs in such matters.** - **7. Costs under items not allowed under the Advocates (Remuneration and Taxation of Costs) (Amendment) Regulations, 2018 were allowed.** - **8. The costs allowed are manifestly excessive as to bar and deter litigants from accessing courts.** - 40 **9. It is fair and reasonable and in the interest of substantive justice that this application is granted.**

The Respondent filed an affidavit in reply opposing this Appeal.

## **Legal representation**

Learned Counsel Ssekajja Ukasha appeared for the Appellant, while Counsel George Musisi 45 was for the Respondent. Counsel for both parties have filed their written submissions as directed by this court.

## **Issues for consideration are: -**

**Advocate.**

- **1. Whether the taxing master was right to award Ugx. 5,000,000/= in M. A No. 0154 of 2021, Ugx. 5,000,000/= in M. A No. 155 of 2021 and Ugx. 50,000,000/=** 50 **in Election Petition No. 09 of 2021 as instruction fees to the Respondent's**

**2. Remedies available to the parties**

### **Objection**

In his submissions, counsel for the Respondent relied on Order 6 rule 7 of the Civil 55 Procedure Rules and submitted that there was a departure by the Appellant from the pleadings which contravened the law. That the position of the law in the above legal situation was re-affirmed in the cases of **Jani Properties Ltd –v- Dar es Salaam City**

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**Council [1966] EA 281 & Struggle Ltd –v- Pan African Insurance Co. Ltd (1990) ALR 46- 47**, where court noted that parties in civil matters are bound by what they say in their 60 pleadings. Counsel explained that in the case at hand, it is quite clear that the Appellant in his pleadings prays that the bill of costs taxed and allowed in Election Petition No. 09 of 2021 at Ugx. 73,050,000/= be revised and reviewed downwards and yet in the submissions, Counsel for the Appellant seeks for an alternative prayer that the instruction fees awarded in Misc. Application no. 0154 of 2021, Misc. Application no. 155 of 2021 and Election 65 Petition. No. 09 of 2021 be reduced. That the submissions as they are, are not premised on the averments made by the Appellant's affidavit and that counsel is giving evidence from the bar, which is prohibited by the rules of evidence.

Counsel for the Respondent invited this Court to disregard all the submissions of counsel that are not premised on the Appellant's evidence, for being offensive which makes the 70 application frivolous, vexatious, misconceived, bad in law, an abuse of court process and brought in bad faith.

He prayed that the prayers to review the taxed bills arising from the applications be dismissed with costs.

The Appellant did not file submissions in reply to the objection.

## 75 **Analysis**

The Notice of Motion in Taxation Appeal No. 0006 of 2022, seeks for orders of this court that;

- (a) The costs taxed and allowed in Election Petition No. 09 of 2021 be revised and reviewed downwards as well as all the applications arising therefrom. - 80 (b) Costs of this applications be provided for.

My understanding of paragraph (a) above is that the Appellant seeks to revise and review downwards costs in Election Petition No. 09 of 2021 and also revise and review costs in the applications arising from Election Petition No.009 of 2021.

Page **3** of **12** Under paragraph (g) of the Notice of Motion and paragraph 8 of the affidavit in support of 85 the Notice of Motion, the Appellant states that the costs allowed in the respective bills of

costs of the Respondent are high, excessive and unconscionable in the circumstances of the case. I also note that under paragraph 13 of the affidavit in support of the Notice of Motion, the Appellant states that; 'I swear this affidavit in support of the Applicant's appeal against the bills of costs arising out of Election Petition No. 09 of 2021'. The use of the 90 words; 'respective bills' and 'bills of costs' show that the Appellant was referring to more than one bill of costs.

Further to the above, Court record shows that there are three Taxation Applications namely; Taxation Application No. 0154 of 2021 (Arising from Election MA No 561 of 2021) (Arising from Election Petition No. 9 of 2021), there is also Taxation Application No 0155 of 95 2021 (Arising from Election MA No. 340 of 2021) (Arising from Election Petition No. 09 of 2021) and Taxation Application No. 0156 of 2021 (Arising from Election Petition No. 09 of 2021).

From the court record and the Appellant's wording of his pleadings, I find that the pleadings refer to more than one bill of costs and not just one bill as Counsel for the 100 Respondent would like this court to believe. Therefore, I find that counsel for the Respondent's argument that the Applicant's submissions contravene Order 6 rule 7 of the CPR is misleading and is hereby overruled.

#### **Merits of the Appeal**

**Issue 1: Whether the taxing master was right to award Ugx. 5,000,000/= in M. A No.** 105 **0154 of 2021, Ugx. 5,000,000/= in M. A No. 155 of 2021 and Ugx. 50,000,000/= in Election Petition No. 09 of 2021 as instruction fees to the Respondent's advocate**

It would appear from the framing of the issue that the Appellant was dissatisfied only with the instruction fees.

I will first look at Taxation Application No. 0156 of 2021 (Arising from Election Petition No. 110 9 of 2021).

## **Appellant's Submissions**

Counsel for the Appellant submitted that the principles of taxation of the Advocates bills on appeal have time and again been stated by the courts, following the decisions in the

cases of **Premchand Raichand Ltd. & Another -v- Quarry Services of East Africa Ltd &** 115 **Ors [19721 EA 162 and in Akisoferi Ogola -v- Akika Othieno & Anor, C/A Civil Appeal No. 18 of 1999 as follows : -**

- i) The court will only interfere with an award of costs by the taxing officer if such costs are so low or so high that they amount to an injustice to one of the parties. - 120 ii) Costs must not be allowed to rise to such a level so as to confine access to the courts only to the rich. - iii) That a successful litigant ought to be fairly reimbursed for costs he or she has to incur. - iv) That the general level of remuneration of advocates must be such as to attract 125 recruits to the profession, and finally, - v) That as far as possible there should be some consistency in the award of costs. - In regards to **Taxation Application 0156 of 2021, that arose out of Election Petition No. 09 of 2021,** counsel submitted that the taxing officer erred when he granted 50,000,000/ = as instruction fees. That the Appellant was dissatisfied by the award because under Rule 6 of the 6th 130 Schedule, of the Advocates (Remuneration and Taxation of Costs) (Amendment) Regulations, 2018, the minimum amount to be awarded to Counsel in Election Petitions is Ushs. 10,000,000/=. That the taxing master ought to have taken into consideration the nature of the petition, its importance, complexity, and novelty and the place where it occurred. That this petition was filed by the Appellant and the Respondent only opposed 135 the petition with a single affidavit that did not involve much work and complicity before, during and at the trial.

Counsel explained that this court is empowered to set aside the taxation award if it is manifestly low or high. That the sum of 50,000,000/ = awarded was excessive and wrong in the circumstances. He referred this court to the case of **Akisoferi Ogola -v- Akika Othieno**

140 **& Anor, C/A No. 18 of 1999,** where Court considered the question as to what were reasonable instruction fees in an election petition and awarded a sum of shs. 7,000,000/-.

Counsel also relied on the case of **The Electoral Commission & Hon. Kirunda Kivejinja – v- Hon Abdu Katuntu Miscellaneous Appeal no. 001 of 2009 & 0002 of 2010** where, while considering principles for taxation, court in observation of the Taxing Master's finding 145 noted that;

"However to suggest that the petitioner should take home a hefty shs.111 million as instruction fees for his victory is, in the first place, an attempt to discourage prospective candidates to compete at an election process, this, in my view is the most important factor of all to consider. It is common knowledge that advocates should be properly awarded for 150 a job well done. But other things should also be taken into account, for example, the level of the economy, public perceptions, the means of the respondent, and the fact that ours is an infant democracy which has yet to be nurtured. It is therefore incumbent upon the court to control the level of costs so that they do not discourage the future candidates. "

He contended that the taxing master did not consider any principle of taxation in awarding 155 the 50,000,000/= other than doubling the amount that the court awarded in the **Kivejinja case(supra).** That if the taxing officer had considered the nature of the petition and that the Respondent filed only one affidavit, the economic situation after Covid 19, and the fact that the world became financially unstable, he would not have awarded the 50,000,000/=. Counsel prayed that this court reviews downwards the costs taxed and allowed and also 160 grants costs of this appeal.

#### **Respondent's submissions in reply**

In reply, Counsel for the Respondent submitted that the question Court ought to determine is whether costs can be varied or reduced as submitted by Counsel for the Appellant. He contended that the established position of judicial practice is that, save in 165 exceptional cases, a Judge will not alter a fee allowed by the taxing officer, merely because in his opinion, he should have allowed a higher or lower amount, per Mulenga JSC (as he then was) in **Bank of Uganda –v- Banco Arabe Espaniol, SCCA No. 23 of 1999** where he stated that: -

"an exceptional case is where it is shown expressly or by inference that in assessing and 170 arriving at the quantum of the fee allowed, the taxing officer exercised, or applied a wrong principle. In this regard, application of a wrong principle can be inferred from an award of an amount which is manifestly excessive or manifestly low. And that even if it is shown that the taxing officer erred on principle, the Judge should interfere only on being satisfied that the error substantially affected the decision on quantum and that upholding the amount 175 allowed would cause injustice to one of the parties."

Counsel further referred Court to the case of **Mugenyi –v- Hoima District Administration Taxation Appeal No. 35 of 2017.**

He contended that costs of litigation increase significantly as proceedings continue towards trial as a large part of expenditure is incurred by the preparation of evidence and the Court 180 documents/trial bundles and the presentation of the case. That the general principle is that the Court should not simply assess costs on the basis of the number of issues won or lost, but rather, it should come to a fair and just determination on all the circumstances of the litigation. He relied on the case of **Khng Thian –v- Riduan bin Yusof [2005] 1 SLR (R) 130** and explained that the Court in determining instruction fees in matters whose value of the 185 subject matter is not disclosed should first assess the relative complexity and difficulty or novelty of the questions involved in the matter, the work supposedly done against what was reasonably required in the prevailing circumstances (time and labour expended by the advocate), the reasonableness and proportionality of the amounts claimed on an item by item basis and then assess the proportionality of the resulting aggregate costs. That the 190 complexity of a matter is determined from the proceedings and manner it was prosecuted and the novel issues that the Court explored. He referred to the case of **Makerere University & Ors –v- Dr. Elizabeth Kaase Bwanga, CA/MA No. 25 of 2019 [arising from Taxation Appln. No. 64 of 2019 & MC No. 205 of 2018]**

Counsel then submitted that the present case was an election petition which by practice, 195 was handled in the shortest time possible thereby, demanding all the advocates' time and labor.

In regard to the Appellant's submission that the taxing master erred when he awarded Ugx. 50,000,000/= as instruction fees, counsel relied on Rule 6 of the 6th Schedule to the Advocates (Remuneration and Taxation of Costs) Regulations S. I 267-4 as amended in 2018 200 and submitted that it clearly applies to election petitions and the Appellant does not

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disagree that the matter at hand was an election petition which requires that the minimum amount to be awarded is Ugx. 10,000,000/= in a Parliamentary Election and that the taxing master was well guided in taxing the bill.

Counsel submitted that stakes were high at the time as the Respondent was a first time 205 Parliamentarian who had recently been appointed as Chairman of the Committee on Commissions, Statutory Authorities and State Enterprises (COSASE) and he therefore, invested a lot of resources such as money, time and labor to maintain his seat. That in the circumstances, the taxing master exercised his discretion judiciously. He prayed that Court finds that this application is an abuse of Court process and the same should be dismissed 210 with costs.

## **Analysis**

## **In Attorney General - ^v – James Mark Kamoga & Anor, CA No. 02 OF 2008, G. M. Okello, JSC noted that,**

- 1. The decision of the taxing officer on the question of quantum is conclusive and only 215 in exceptional cases that the Judge will interfere with it. - 2. An exceptional case is where it is shown expressly or by inference that in assessing and arriving at the quantum of the fee allowed, the taxing officer exercised or applied a wrong principle. - 3. Application of a wrong principle may be inferred from an award which is manifestly 220 excessive or manifestly inadequate. - 4. Even where it is shown that the taxing officer has erred on a principle, the Judge should interfere only on being satisfied that the error substantially affected the decision on quantum and that upholding the amount allowed would cause injustice to one of the parties.

In the case of **Nicholas Roussous -v- Gulam Hussein Habib Viran, Civil Appeal No. 6 of 1995,** court noted that;

"instruction fees ought to take into account the amount of work done by the Advocate, 230 and where relevant, the subject matter of the suit as well as the prevailing economic conditions."

In **AG –v- Uganda Blanket Manufacturers, Civil Application No. 17 of 1993,** Odoki, JSC, (as he then was), noted inter alia that;

"Public interest requires that costs be kept to a reasonable level so as not to keep poor 235 litigants out of Courts."

In **Patrick Makumbi and another –v- Sole Electrics (U) Ltd. [Civil Appeal No. 11/94]**, Manyindo, DCJ (as he then was) noted that;

"The principles governing taxation of costs by a Taxing Master are well settled. First, the instruction fee should cover the advocate's work, including taking instructions as well as 240 other work necessary for presenting the case for trial or appeal, as the case may be"

**Regulation 6 under the sixth schedule of the Advocates (Remuneration and Taxation of Costs) (Amendment) Regulations, 2018,** provides for instructions to present or oppose an election petition and states as follows;

"For instructions to present or oppose an election petition, the fee shall be as the taxing 245 officer considers reasonable, taking into consideration the nature, importance, complexity and novelty of the petition, the place where and the circumstances in which work or a part of it was done, the time expended, the public interest and all other relevant circumstances, but the fees shall not be less than 5,000,000 shillings for petitions under the Local Governments Act and shall not be less than 10,000,000 shillings for petitions under the 250 Parliamentary Elections Act."

The law provides for a speedy disposal of Election petitions and appeals. During this period, both courts and Counsel have to put aside all the other court business and dedicate all their time to handling Election petitions which must be heard and disposed of in a limited period of time. This requires counsel to put away all other business and 255 together with the Judicial Officer concentrate on the Election Petitions. The amount of research and pressure to finish within the scheduled time cannot be underestimated. In

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my view, such work justifies adequate remuneration for Counsel. However, the amount awarded must not be so much as to discourage poor people from participating in elective offices and or seek justice in the courts in case of malpractices due awards of exorbitant 260 amounts as costs.

In **Lanyero Sarah Ochieng & The Electoral Commission-v- Lanyero Molly, Reference No. 225 Of 2013 (Arising Out of Election Appeal No. 32 Of 2011),** Court reduced instruction fees that had been allowed at 50,000,000/- to 15, 000,000/- for lead Counsel and from ushs. 35,000,000/- to shs. 8,000,000/- instructions fees for supporting counsel. This was 265 2014.

In this case, the Learned Deputy Registrar took into account the nature of the petition, he considered the case of **Hon. Kirunda Kivejinja –v- Hon. Abdu Katuntu MA NO. 001 of 2009 and No. 002 0f 2010** where Mulyagonja, JA allowed 25,000,000/- in 2010 on appeal and bearing in mind the time lag, he found 50,000,000/- reasonable as instruction fees.

- 270 In this case, after taking into account all the above factors and the time lag, I find that 50,000,000/- as instructions fees is excessive. In my view ushs. 30,000,000/- (thirty million Uganda shillings only) is reasonable as instruction fees for Counsel for the Respondent. - **In regard to Misc. Application No. 0154 of 2021 and Misc. Application No. 0155 of 2021,** Counsel for the Appellant submitted that the taxing master erred when he awarded 275 shs. 5,000,000/ = as instruction fees to the Respondent's advocate in each of the Applications. He relied on Rule 9(2) of the 6th Schedule which provides for interlocutory applications and sets a minimum amount at ushs. 300,000/= He submitted that much as the maximum is not set, the law demands that the taxing master ought to act judiciously while determining what is reasonable in the circumstances. - 280 Counsel explained that the applications were opposed by one affidavit in reply to each of the applications and each application was determined in one sitting. He submitted that the taxing master ought to have considered the settled principle in **Alexander Okello -v- M/S Kayondo & Company Advocates, S/C Civil Appeal No. 1 of 1997**, where the justices of the Supreme Court held that; - - 285 "an instruction fee is manifestly excessive if it is out of proportion with the value and importance of the suit and the work involved".

He contended that the instruction fees awarded were excessive and prayed that this Court considers a reduction to at least 500,000/ = for each application.

In reply, Counsel for the Respondent submitted that by its nature, an election petition is a 290 technical area of practice and litigation which is heard within strict timelines and skills are required for its efficient disposal.

That the taxing master took into account the fact that the Respondent's advocates were entitled to the said instruction fees, due to the peculiar nature of the petition and as the Respondent rightly deponed in his affidavit in reply under paragraph 9, the Applicant has 295 over the years resorted to delaying tactics to prevent him from realizing the fruits of his judgment. He prayed that this court be pleased to overrule the Applicant's submissions so that Counsel for the Respondent enjoys the fruits of his labour.

## **Analysis**

**Under Regulation 9 (2) of the sixth schedule of the Advocates (Remuneration and** 300 **Taxation of Costs) (Amendment) Regulations, 2018,** it is provided that for instructions to make or oppose interlocutory applications under items 1 to 9 in this Schedule, the fees shall be not less than 300,000 shillings.

Applying the principles of taxation already laid down herein above, I find that Ugshs. 5,000,000/- as instruction fees in each application is excessive. I would award Ugshs. 305 1,000,000/- as instruction fees in each of the applications.

In the final result therefore, this Appeal succeeds. The awards made by the taxing officer are hereby set aside and this court now makes awards for instruction fees as follows: -

- **1. A sum of Ugshs. 30,000,000/- (thirty Million Uganda shillings only) is awarded as instruction fees in Election Petition No. 09 of 2021.** - 310 **2. In M. A No. 0154 of 2021 and M. A No. 155 of 2021, Ugshs. 1,000,000/- [one million Uganda shillings only is awarded as instruction fees in each of the applications.** - **3. Each party will bare its own costs of this Appeal.**

I so order.

**Dated, signed and delivered by mail and uploaded on ECCMIS at Kampala on this 6th** 315 **day of November, 2024.**


**Esta Nambayo JUDGE 6 th** 320 **/11/2024.**