[2025] UGCommC 148

## 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISC. APPLICATION NO. 321 OF 2024 (ARISING FROM EMA NO. 159 OF 2023 AND TAXATION APPLICATION** 10 **NO. 92 OF 2023 HOLDEN AT MENGO CHIEF MAGISTRATE'S COURT) (ALL ARISING FROM CIVIL SUIT NO. 262 OF 2022 AT MENGO CHIEF MAGISTRATE'S COURT) TONY KATO ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT VERSUS** 15 **TRUCKER LINE INTERNATIONAL CO. LIMITED :::::::::: RESPONDENT BEFORE: HON. LADY JUSTICE PATIENCE T. E. RUBAGUMYA RULING**

## Introduction

This application was brought by way of Notice of Motion under **Section 33**

- 20 **of the Judicature Act, Cap. 13 (now Section 37 of Cap. 16), Section 98 of the Civil Procedure Act, Cap. 71 (now Cap. 282)** and **Order 51 rule 6 of the Civil Procedure Rules, SI 71-1**, seeking orders that: - 1. Leave be granted to file a taxation appeal out of time against the certificate of taxation issued by **His Worship Akera Derrick Otim** in - 25 *Taxation Application No. 92 of 2023* at Mengo Chief Magistrate's Court. - 2. The costs of the application be provided for.

Background

- 5 The background of the application is contained in the affidavit in support deponed by **Mr. Tony Kato** the Applicant herein, and is summarized below: - 1. That he was successfully sued by the Respondent at Mengo Chief Magistrate's Court under *Civil Suit No. 262 of 2022* for recovery of 10 UGX 4,200,000/= (Uganda Shillings Four Million Two Hundred Thousand Only). - 2. That having not been served, the matter proceeded without him or his lawyers under the claim that he was elusive of service and attempts had been made to serve him at his work place in Kisekka 15 and his home in Mutundwe yet he has never worked in Kisekka but was always stationed in Lugala and was a resident of Makindye. - 3. That he was never served with any Court process in the aforementioned matter and was surprised when he was arrested and informed that he had to pay a sum of UGX 11,093,100/= (Uganda 20 Shillings Eleven Million Ninety-Three Thousand One Hundred Only) inclusive of UGX 5,811,000/= (Uganda Shillings Five Million Eight Hundred Eleven Thousand Only) being the costs. - 4. That whereas he paid a sum of UGX 5,000,000/= at Court and a sum of UGX 2,000,000/= to the Advocate, which sums were never 25 acknowledged, he is dissatisfied with the costs that were granted at UGX 5,811,000/=. - 5. That the bill of costs was excessively taxed, for example, item 21, allowed an application for substituted service at UGX 2,000,000/= as new instructions, whereas this ought to be taken as an 30 interlocutory application and taxed as per the Advocates (Remuneration and Taxation of Costs) Rules, 2018.

- 5 6. That the bill of costs has so many repeated items that were never pointed out by the Magistrate. - 7. That the bill of costs shows no receipts for some items claimed by the Respondent's Advocates, for example, items 31, 35, 6, 15, 24, 50, 60, 66 and 67, among many others. - 10 8. That the bill of costs was irregularly drafted, leaving out the rules under which all items were taxed, failure of which led the Magistrate into error.

In reply, the Respondent, through an affidavit deponed by **Mr. Muwuluzi Benon,** its Director, opposed the application, contending that:

- 15 1. The Respondent sued the Applicant at Mengo Chief Magistrate's Court under *Civil Suit No. 262 of 2022* for recovery of UGX 4,200,000/= (Uganda Shillings Four Million Two Hundred Thousand Only), 24% interest per annum on the principal from the date of default until payment in full and costs of the suit. - 20 2. After several unsuccessful attempts to serve the Applicant personally, the Respondent filed *Misc. Application No. 523 of 2022* wherein leave was granted to serve the Applicant by way of substituted service. The Applicant was duly served through the daily Monitor newspaper, published on 15th December, 2022. - 25 3. Due to the Applicant's failure to apply for leave to appear and defend, a default judgment and decree were entered against the Applicant. Subsequently, a warrant of arrest was duly issued, to which the Applicant was arrested and produced in Court. - 4. Upon being presented in Court, the Applicant agreed with the 30 Respondent to partly satisfy the decree by paying UGX 5,000,000/= out of the decretal sum of UGX 11,093,100/= and promised to make

5 a monthly deposit of UGX 800,000/= starting 1st March, 2024, which has never been paid to date.

5. The Applicant further agreed with the Court bailiff to pay his execution costs of UGX 3,000,000/= without him having to file a bill of costs for the same, and to show his seriousness, he deposited UGX 10 2,000,000/= leaving a balance of UGX 1,000,000/= unpaid to date.

- 6. They were advised by the Court to put the above into writing, but unfortunately, before the Respondent's lawyers could finish drafting the consent settlement and the same to be signed, the Applicant disappeared from the Court and has never been seen again. - 15 7. The application is overtaken by events since execution has already taken place; the Applicant has partly paid the decretal sum, hence amounting to reprobation and approbation on the part of the Applicant. - 8. The bill of costs was taxed as per the Advocates (Remuneration and 20 Taxation Costs) Rules, 2018, and all the items were assessed and correctly taxed by the trial Magistrate, thus the sum being accurate. - 9. The bill of costs was filed at UGX 7,587,500/= and taxed at UGX 5,381,000/= whereby almost all the mentioned items of the bill of costs in the Applicant's affidavit were either taxed off, reduced or 25 even struck out and thus this application and the intended appeal are being filed without a scrutiny of what the taxing master did. - 10. The application in support has no plausible or genuine claim or evidence that *Taxation Application No. 92 of 2023* was not taxed well by the taxing master, since all that he is claiming were indeed 30 taxed off by the taxing master and it is within the interest of justice that this application is dismissed and the Applicant be ordered to satisfy the decree which now stands at UGX 8,101,100/=.

5 Representation

The Applicant was represented by **M/s T. Davis Wesley & Co. Advocates**, while the Respondent was represented by **M/s Mwina, Wananda & Co. Advocates.**

Both parties filed their written submissions as directed and the same have 10 been considered by Court.

Issue for Determination

Whether the Applicant should be granted leave to file a taxation appeal out of time?

## Applicant's submissions

15 Counsel for the Applicant first relied on the case of *Muhindo Andrea & Another Vs Kahindo HCMA No. 20 of 2023,* which cited with approval the case of *Hadondi Daniel Vs Yolam Egondi CACA No.67 of 2003,* in which the Court held that it is trite that time can only be extended if sufficient cause is shown. Further, that the sufficient cause must relate to 20 the inability or failure to take necessary steps within the prescribed time.

Leaned Counsel further submitted that the Learned Judge cited the case of *Kabarole District Local Government Council Vs Gunn Paper Industries Ltd Misc. Application No. 103 of 2022*, in which it was stated that whether a particular cause is sufficient or not is a matter of 25 judicial determination taking into account the facts of the case.

To that, Learned Counsel contended that in the instant application, the suit in the Magistrate's Court was a summary suit, and the Applicant was never represented since he was never served and that the bill of costs was excessive and irregularly drafted. That in the case of *Boney M. Katatumba*

- 5 *Vs Waheed Karim (Administrator of the estate of the late Suleiti Haji) SC Civil Application No. 27 of 2007*, **Hon. Justice Mulenga (RIP)** stated that even where the application is unduly delayed, the Court may grant the extension if shutting out the appeal may appear to cause injustice. - In his conclusion, Learned Counsel submitted that the Respondent has 10 not demonstrated how the grant of the application will prejudice it and that the balances being referred to by the Respondent are what the Applicant intends to challenge.

## Respondent's submissions

Learned Counsel for the Respondent submitted that the Applicant has not 15 demonstrated or satisfied any ground to warrant leave to file a taxation appeal out of time. That the question at hand is not whether or not the Applicant was served or represented but why the delay. That as was emphasized in the case of *Hikima Kyamanywa Vs Sajjabi Chris C. A. C. A No. 1 of 2006*; sufficient cause must relate to inability or failure to take a 20 particular step in time.

Regarding the issue of service onto the Applicant; Learned Counsel contended that as stated under the affidavit in reply, the Respondent made multiple attempts to effect service upon the Applicant but in vain and thus obtained an order for substituted service and on 15th December, 2022, the 25 Applicant was duly served via the Monitor newspaper as per the affidavit of service on Court record dated 5th February, 2023. That therefore, the Applicant was effectively served.

As to whether the bill of costs was taxed excessively and irregularly drafted; Learned Counsel submitted that as stated under paragraphs 8 30 and 9 of the affidavit in support, the bill of costs was properly assessed, 5 taxed and justified in line with the Advocates (Remuneration and Taxation of costs) Rules, 2018 by the trial Magistrate. That therefore, the Applicant has not provided any substantive factual basis to prove that the bill of costs was excessively taxed.

That in the case of *Mugisha Vincent Vs Aston Peterson Kajara & 2*

- 10 *Others Taxation Reference No. 313 of 2019*, it was stated that save in exceptional cases, a Judge does not interfere with the assessment of what the taxing officer considers to be a reasonable fee. That therefore, the Magistrate cannot be said to have erred merely because the bill was not formatted according to the Applicant's preference. - 15 In conclusion, Learned Counsel submitted that the Applicant has no plausible defence or genuine claim or evidence that the bill of costs was not taxed well and that the Applicant has failed to demonstrate sufficient cause for his inability to challenge *Taxation Application No. 92 of 2023* in time. - 20 Analysis and Determination

In submission, Learned Counsel for the Respondent raised a preliminary objection to the effect that the Applicant's application is untenable since he has partially satisfied the decree he now seeks to challenge.

As provided for under **Order 6 rule 28 of the Civil Procedure Rules**, a 25 point of law so raised may be disposed of by Court at or after the hearing. Considering the facts at hand, resolving this preliminary objection involves the merits of the case. Therefore, I will resolve this preliminary objection concurrently with the issue for determination.

## **Section 37 of the Judicature Act** and **Section 98 of the Civil Procedure**

30 **Act** empower this Court to make such orders as may be necessary for the

5 ends of justice. Further, **Order 51 rule 6 of the Civil Procedure Rules,** under which this application was brought stipulates that:

"*Where a limited time has been fixed for doing any act or taking any proceeding under these Rules or by order of the Court, the Court shall have power to enlarge the time upon such terms, if any,* 10 *as the justice of the case may require, and the enlargement may be ordered although the application for it is not made until after the expiration of the time appointed or allowed; except that the costs of any application to extend the time and of any order made on the application shall be borne by the parties making the application,* 15 *unless the Court shall otherwise order*."

In the case of *Hadondi Daniel Vs Yolam Egondi (supra)* cited with approval in the case of *Sseruwuge Charles Vs Kinoni Traders' Cooperative Savings Credit Society HCMA No. 24 of 2020*, it was held that:

- 20 "*It is trite that time can only be extended if sufficient cause is shown. The sufficient cause must relate to the inability or failure to take the necessary step within the prescribed time. It does not relate to taking a wrong decision. If the Applicant is found to be guilty of dilatory conduct, the time will not be extended*." - 25 In the case of *Florence Nabatanzi Vs Naome Binsobedde SC Civil Application No. 6 of 1987*, it was stated that normally, the sufficient reason depends on the circumstances of each case. Further, it is settled law that the fact that an appeal appears likely to succeed cannot in itself amount to sufficient cause.

5 Further, in the case of *Shanti Vs Hindocha and Others [1973] EA 207*, the Court of Appeal of East Africa held that:

"*The position of an Applicant for an extension of time is entirely different from that of an Applicant for leave to appeal. He is concerned with showing "sufficient reason" why he should be* 10 *given more time and the most persuasive reason that he can show, as in Bhatt case, is that the delay has not been caused or contributed to by dilatory conduct on his part. But there may be other reasons and these are all matters of degree. He does not necessarily have to show that his appeal has a reasonable* 15 *prospect of success or even that he has an arguable case but his application is likely to be viewed more sympathetically if he can do so and if he fails to comply with the requirement set out above (that is to show sufficient reason) he does so at his peril*."

From the above principles, the test to be determined herein is whether the 20 Applicant has presented sufficient grounds for the grant of this application. I have looked at the pleadings, and they disclose that vide a summary plaint, the Respondent filed *Civil Suit No. 262 of 2022* against the Applicant for recovery of UGX 4,200,000/=, 24% interest per annum on the principal sum from the date of default until payment in full and 25 costs of the suit.

Attempts were made to serve the Applicant personally but in vain, and vide *Misc. Application No. 523 of 2022*, the Respondent sought fresh summons and an order to effect service of the same on to the Applicant by way of substituted service, which was granted. On 15th December, 2022, 30 the same was published in the Monitor newspaper, and upon failure by the Applicant to seek leave to appear and defend the suit, on 17th February,

- 5 2023, the Respondent moved Court for judgment to be entered against the Applicant, which was granted. Vide *Taxation Application No. 92 of 2023*, the Respondent's bill of cost was taxed and allowed at UGX. 5,381,000/= and vide *EMA No. 159 of 2023,* a warrant of arrest was issued, and the Applicant was produced in Court. Upon his production in - 10 Court, the Applicant agreed to partly satisfy the decree, whereby he paid UGX 5,000,000/= towards the outstanding sum and UGX 2,000,000/= to the Court bailiff.

The Applicant now brings this application seeking leave to file a taxation appeal out of time. The grounds presented by the Applicant for the grant 15 of this application are that he was never represented nor was he present when the judgment was entered since he was never served and that the bill of costs was excessively taxed and irregularly drafted.

It was the Respondent's averment that through a warrant of arrest issued to Mr. Kyalula Edward a licenced Court bailiff, the Applicant was arrested

- 20 and produced in Court and while there, he agreed with the Respondent to partly satisfy the decree by paying UGX 5,000,000/= out of the decretal sum of UGX 11,093,100/= and promised to pay the rest in monthly instalments of UGX 800,000/= starting the first day of March, 2024. That on the same day, the Applicant paid the Court bailiff UGX 2,000,000/= 25 out of UGX 3,000,000/= for the execution costs. That as advised by the - Court, the above understanding was to be reduced into a consent agreement, but before he could sign, the Applicant disappeared from the Court up to date. All the above facts were not contested by the Applicant.

From the above, it can be shown that upon his arrest and production 30 before the Court, the Applicant conceded to the decretal sum by making a part payment. Nothing on the Court record shows that the Applicant

- 5 objected to the decretal sum on grounds of non-service of the summons and plaint in *Civil Suit No. 262 of 2022* and therefore, the Applicant cannot claim that he delayed filing the appeal because he was not aware of the proceedings against him. As stated in the case of *Hadondi Daniel Vs Yolam Egondi (supra),* sufficient cause must relate to the inability or - 10 failure to take the necessary step within the prescribed time.

Having found as above, and considering that the Respondent's bill of costs was taxed and allowed on 18th May, 2023 and the Applicant's undisputed part payment of the decretal sum; the Applicant's delay amounts to dilatory conduct.

15 In the final result, I find that the Applicant has not demonstrated sufficient cause warranting the grant of this application and is also guilty of dilatory conduct.

In the premises, this application is hereby dismissed with costs to the Respondent.

20 I so order.

Dated, signed and delivered electronically via ECCMIS this **11th** day of **April**, **2025.**

Patience T. E. Rubagumya 25 **JUDGE** 11/04/2025

6:50am