[2024] UGHC 1060

# **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

#### 3 **HCT – 01 – CV – LD – CA – NO. 0031 OF 2018**

#### **ARISING FROM FPT – 00 – CV – LD – CS – 133 OF 2012**

# **THE REGISTERED TRUSTEES OF** 6 **FORT PORTAL CATHOLIC DIOCESE :::::::::::::::::::::: APPELLANT**

#### **VERSUS**

9 **WEKESA DAVID :::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

### **BEFORE: HON. JUSTICE VINCENT WAGONA**

# **JUDGMENT**

- 12 This appeal challenged the order of Her Worship Namayanja Nazifah, Magistrate Grade One, Fort Portal Chief Magistrate's Court where she denied the appellant costs. The appellant framed one ground of appeal being - that the learned trial - 15 Magistrate Grade One was wrong to deny the appellant the costs of the suit without justification for ordering as such.

The Respondent was served with a hearing notice for 28th June 2024 per the affidavit

- 18 of service by Mr. Mwirumubi Geofrey, a process server attached to M/s Kaahwa, Kafuuzi, Bwiruka & Co. Advocates who effected service of the hearing notice upon the Respondent on 26th June 2024 and was duly received by the Respondent. The - Respondent did not attend on 28th 21 June 2024 and never offered any explanation for none attendance. I shall thus consider the appeal exparte.

## *Representation and Hearing:*


*M/s Kaahwa, Kafuuzi, Bwiruka& Co. Advocates* appeared for the appellant and filed written submissions which I have duly considered herein.

# 3 *Consideration of the appeal:*

Section 27 (1) of the Civil Procedure Act is to the effect that costs of and incidental to all suits are granted at the discretion of court and such costs follow the event and

- 6 may only be denied for good cause. Mr. Bwiruka for the appellant submitted that the trial Magistrate having found that the Respondent was a trespasser, he would have ordered him to pay costs. That the trial Magistrate did not give any reasons or - 9 justifications for declining to award costs to the appellant. That the appellant having been denied use of the suit land for a long time was entitled to costs. He thus prayed that court should be pleased to allow appeal with costs in this court and in the Court - 12 below.

I have extensively considered the history of the claim between the disputants and the relationship that the parties enjoyed. Whilst am cognizant of the fact that costs follow

- 15 the event and a successful party should be awarded costs as a re-imbursement for the expenses incurred in litigation, the powers to deny or grant costs is discretionary. The discretion should be exercised judiciously taking into account several - 18 considerations. The court must balance the need to compensate the successful litigant and the risk of using costs as a punishment against the losing litigant given the facts of a given case and the antecedents of the dispute and the disputants. While - 21 commenting on the discretion to award costs, *Sonko v Clerk, County Assembly of Nairobi City & 12 others (Petition 14 (E021) of 2021) [2022] KESC 17 (KLR) (19 May 2022)* cited the dicta of the Supreme Court of India in *[Jasbir Singh Rai & 3](http://kenyalaw.org/caselaw/cases/view/90132/)*


*[others v Tarlochan Singh Rai & 4 others,](http://kenyalaw.org/caselaw/cases/view/90132/) Sup Ct Petition No 4 of 2012; [2014] eKLR [\(Jasbir Singh Rai](http://kenyalaw.org/caselaw/cases/view/90132/) case)* where court observed that:

| 3 | "The guiding principles applicable in costs were as stated in Jasbir Singh | |----|--------------------------------------------------------------------------------------| | | Raiwhere<br>we stated that costs follow the event with the discretion of the court | | | exercised judiciously by stating:"<br>It emerges that the award of costs would | | 6 | normally be guided by the principle that "costs follow the event": the effect | | | being that the party who calls<br>forth the event by instituting suit, will bear the | | | costs if the suit fails; but if this party shows legitimate occasion, by successful | | 9 | suit, then the defendant or respondent will bear the costs. However, the vital | | | factor in setting the preference is the judiciously-exercised discretion of the | | | court, accommodating the special circumstances of the case, while being | | 12 | guided by ends of justice.<br>The claims of the public interest will be a relevant | | | factor, in the exercise of such discretion, as will also be the motivations and | | | conduct of the parties, prior-to, during, and subsequent-to the actual process | | 15 | of litigation…. Although there is eminent good sense in the basic rule of | | | costs–<br>that costs follow the event –<br>it is not an invariable rule and, indeed, | | | the ultimate factor on award or non-award of costs is the judicial discretion. | | 18 | It follows, therefore, that costs do not, in law, constitute an unchanging | | | consequence of legal proceedings –<br>a position well illustrated by the | | | considered opinions of this court in other<br>cases."<br>(Emphasis is mine). |

21 Therefore, the term costs follow the event is no an abstract legal concept that where a party is successful, he or she must be awarded costs. The award is largely in the discretion of court after taking into account several factors needless to re-state, the 24 conduct of the parties, the history and nature of the claim, the relationship between the disputant and the consequential effect the grant may have on such relationship,


facts constituting the cause of action and whether or not the successful party was partly responsible for the same and the nature and status of the claim among other 3 considerations.

In the present suit, the learned trial magistrate observed in relation to award of costs thus;

6 *f. Costs not awarded to the plaintiff simply because the defendant is one of the members of the church and thus the need to promote reconciliation.*

*g. The counter claim of the defendant is dismissed without costs to the* 9 *plaintiff in a bid to promote reconciliation since the defendant is one of the members of the church.*

The basic consideration that the learned trial Magistrate took into account was 12 reconciliation of the parties since the Respondent was a member of the church. Whether or not the reason was sufficient to warrant denial of costs is another thing. The grant being discretionary, the issue would be whether the discretion to deny 15 costs was made judiciously?

I have considered the pleadings of the parties and the evidence on record. The defendant who testified as DW1 gave a clear history regarding the church at hand 18 and the fact that at first there was a school and later a church was established. These facts were not denied by the appellant. He further stated that he was a chairperson of the church in the early of its establishment and was thus instrumental in its stay

21 and progress in the area. His testimony was supported by that of DW4 who emphasized that the defendant's father participated in the development of the church on the suit land. The Respondent further emphasized that he was still a member of 24 the church. Therefore, in order to promote reconciliation between the parties given


the history of the claim and the suit land, I agree with the reason given by the trial Magistrate that in order to promote harmony between the appellant and the

- 3 Respondent who were not only neighbors but partners in development since the Respondent served as a chairperson of Nyakugyo Church from 1966 to 1970 under the leadership of the appellant, it was proper not to award costs against him. I believe - 6 to maintain a healthy relationship it was proper not to award costs in the circumstances.

I therefore find no fault in the finding of the trial Magistrate where she denied costs 9 to the appellant for purposes of promoting harmony between the parties given the relationship which existed between the two. Consequently, the ground of appeal framed by the appellant fails and so is the appeal. I hereby dismiss Civil Appeal No.

12 HCT – 01- LD – CA – 0031 of 2018 with no orders as to costs since there was no input by the Respondent despite service.

I so order.


Vincent Wagona

- 18 **High Court Judge FORTPORTAL** - 21 **DATE: 07/11/2024**