Efulansi Namutebi and Others v Boost Investment Ltd and Others (Miscellaneous Application No. 378 of 2025) [2025] UGHCLD 57 (7 May 2025)

## **THE REPUBLIC OF UGANDA**

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

### **(LAND DIVISION)**

**MISCELLENEAOUS APPLICATION NO.378 OF 2025**

**(ARISING FROM EMA. APP NO.147 OF 2024)**

**(ARISING FROM MISC. APPLICATION NO.759 OF 2023)**

**(ARISING FROM MISC. APPLICATION No. 223 of 2023)**

**(ALL ARISING FROM CIVIL SUIT NO. 266 OF 2017)**

- **1. EFULANSI NAMUTEBI** - **2. ESEZA NOLA NAKIBUUKA ::::::::::::::::::::::::::: APPLICANTS** - **3. YAYERI KOKULIRA NDAGIRE** - **4. DEBORAH RACHEL NAMUSOKE KIZITO (Administrators of the Estate of the Late Erenesiti Keresipo Kizito)** - **5. WILLY BALWANA SERWANO**

#### **VERSUS**

- **1. BOOST INVESTMWNT LTD** - **2. THE KABAKA OF BUGANDA :::::::::::::::::::::: RESPONDENTS** - **3. UGANDA LAND COMMISSION** - **4. ATTORNEY GENERAL**

# **BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA**

#### **RULING**

#### *Introduction;*

- 1. The applicants brought this application by way of notice of motion under Section 37 of the Judicature Act, Sections 82 of 98 of the Civil Procedure Act Cap 282, Order 22 rule 26 and Order 52 rules 1 and 3 of the civil procedure rules for orders that; - i) An order for review and setting aside of the certificate of taxation issued in favor of the respondents be granted. - ii) An order for stay of execution of the certificate of taxation be granted pending the hearing and final determination of the applicant's appeal. - iii) An order for appropriate taxation of the bill of costs be made in accordance with the advocate (remuneration and taxation of costs regulations of 2018) - iv) Execution proceedings in EMA 147 of 2024 be stayed pending the hearing and determination of the validity of the certificate of taxation issued. - v) Execution proceedings by way of arrest of the 5th applicant should be stayed or set aside. - vi) Costs incidental to this application be provided for.

#### *Applicants evidence;*

- 2. The application is supported by an affidavits deponed by the 2nd applicant on her own behalf and on the behalf of other applicants and an affidavit deponed by a one Yakubu Kayongo which briefly state as follows; - i) That the taxing master erred in law when taxing the abovementioned taxation application when she allowed two taxation applications for costs, one for striking out the main suit and the one for dismissal of the main suit all in one application vide Misc No. 223 of 2023 when the said suit had not been heard and determined on its merit - ii) That the taxing master allowed various bills for items shown in the respondent's bill of costs which was done during a pretaxation meeting held on the 14th/12/2020 in the chambers of the 1st respondent in the absence of the applicants and their lawyers. - iii) That the taxing master taxed and allowed instruction fees for the 1st respondent which were not tenable and manifestly excessive based on the value of the suit land estimated over

Ughs 100billion when the value of the suit land was not under consideration.

- iv) That in similar vein the taxing master allowed and taxed costs for various bills of costs during the dismissal of the suit which had not been conclusively determined. - v) That the taxing master intends to grant an application for detention of the 5th applicant in civil prison who had come on the main suit as an intervenor/beneficiary for purposes of complying with the summons for directions and was never involved in bringing and filing of the suit.

#### *1st Respondent's evidence;*

- 3. The application is responded to by an affidavit in reply deponed by the managing director of the 1st respondent which briefly states as follows; - i) That the affidavit in support of the application sworn by the 2nd applicant is incurably defective as it purports to be deponed on behalf of the 3rd and 4th applicants without their authority.

- ii) That there was no error in law in taxing costs for MA 223 of 2023 and Civil Suit No. 266 of 2017 since costs for both the application and the main suit whose dismissal was a final decision were awarded to the respondents. - iii) That a letter requesting for a pre-taxation meeting was duly served on Godfrey S. Lule Advocates, Kimanje Nsibambi Advocates and Obed Mwebase and Associated advocates. - iv) That since the above firms represented the applicants jointly any of them would handle the taxation including Obed Mwebase and Co advocates which when called indicated that they had instructions to tax the bills and therefore wanted a pre-taxation meeting which was duly held. - v) That Godfrey S. Lule Advocates participated in the pretaxation by their response to the letter inviting them for a pre-taxation meeting and in the said letter made the pretaxation proposals for various items. - vi) That the demand notice filed by the applicants prior to the filing of the suit put the value of the suit land at 100,000,000,000 (one hundred billion).

- vii) That if the applicants were dissatisfied with the figures arrived at by the taxing officer, the procedure for challenging the same is well known. - viii) That by choosing to sue the 5th applicant, he put himself in a position where execution can issue against him, the order was not that costs for the main suit and application be paid by the Estate Administrators but from the plaintiffs including the 5th applicant. - ix) That there are no parallel bills of costs since MA. 758 of 2023 related to costs in MA 223 of 2021 which was an application and MA. 759 related to Civil Suit No. 266 of 2017 which was the main suit that was dismissed with costs and both costs for the application and the costs for the main suit were awarded as per the order of court.

## *Rejoinder;*

i) That 2nd applicant could not swear the affidavit with the authority of the 3rd and 4th applicants because at the time of deponing the said affidavit the 4th applicant was not available and the 3rd applicant had passed on. - ii) That until the appeal is determined by the court of the appeal, the taxation exercise carried out by the registrar is misconceived. - iii) That until Civil Suit No. 266 of 2017 is heard on its merits and finally determined, no taxation of costs for the alleged dismissal of the suit can be made. - iv) That the pre-taxation meeting that took place was in absence of all the 4 applicants save for the 2nd applicant who was represented

#### *Representation;*

4. The applicants were represented by M/S Godfery S. Lule Advocates whereas the 1st respondent was represented by M/S Anguria & Co Advocates. The applicants and the 1st respondent filed written submissions which this court had considered in the determination of this application.

### *Issues for determination;*

i) Whether the application discloses any grounds for review and setting aside the certificate of taxation issued.

ii) Whether the application discloses any grounds for stay of execution.

#### *Preliminary objections;*

- 5. Counsel for the 1st respondent raised preliminary objections to include; - i) That the application is incompetent as it seeks redundant orders using alien procedures. - ii) That the affidavit in support of the application is incurably defective as it purports to be sworn by more than one person and on behalf of others without written authority. - 6. This court will proceed to address the first preliminary objection raised by counsel for the 1st respondent which relates to the aspect of procedure under which the instant application is brought. - 7. The applicants brought this application under sections 82 and 98 of the civil procedure Act. Section 82 of the civil procedure act is to the effect that any person considering himself aggrieved by a decree or order from which an appeal is allowed by this act but from which an appeal has been preferred or by a decree or order which no appeal is allowed by this act may apply for review of

judgment **to the court which passed the decree** or made the order and the court may make such order as it thinks fit.

- 8. In the instant case, the applicants seek to review the orders of the taxing master who is the registrar. - 9. The gist of the preliminary objection is whether the trial judge can review and set aside the decision or orders of a registrar. - *10.* Drawing reference to my decision in **Pancras John Mukasa vs Kamoga Muhammad MA 001 of 2025** in resolving the issue as to whether a judge can review the decision of the registrar, referring to the decision of my learned brother Justice Lubega Farouq in *Khainza and ors vs Mweru MA No. 437 of 2023*, *I held that the decision of the registrar can only be challenged by an appeal as provided for under order 50 of the civil procedure rules, this court reviewing the registrar's orders would be using the high court's inherent powers to override the express procedural laws.* - *11.* Counsel for the applicants further brought this application under section 98 of the civil procedural act, I take note that the said provision provides for the inherent powers of court in ensuring that the ends of justice are met. However, such powers cannot be invoked where a specific legal procedure exists, where

the civil procedure rules provided for detailed procedure then the said procedure ought to be adhered to unless an exceptional situation exists.

- *12.* Further the advocates act under section 68(1) is to the effect that a person affected by an order or decision of the taxing officer may appeal within 30 days to the judge of the high court who on that appeal may make any order that the taxing officer might have made. - *13.* The applicants being dissatisfied with the orders of the taxing master they ought to have filed an appeal to this court but not seeking redress under review as stated in section 82 of the civil procedure act. - *14.* I am of the view that the procedure the applicants opted for in bringing this application is not right and this court would be encouraging a procedure irregularity if it proceeds to entertain the same application as it is. - *15.* Therefore, this court is of the finding that the instant application falls short of procedure and I do not find it necessary to proceed into the merits of the application.

*16.* The instant application is hereby dismissed by this court with no orders as to costs.

**I SO ORDER.**

#### **NALUZZE AISHA BATALA**

#### **Ag. JUDGE**

# **07TH /05/2025**

## *Delivered Electronically via ECCMIS on the 07th day of May*

*2025.*