Francis Kabali Sebbowa T/A Sebbowa & Co. Advocates v Nadya Dimitrova Mileva (Miscellaneous Application 1847 of 2024) [2025] UGCommC 106 (25 April 2025)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) IN THE MATTER OF THE ADVOCATES ACT CAP 267 AS **AMENDED** AND IN THE MATTER OF AN APPLICATION FOR THE TAXATION OF AN ADVOCATES-CLIENT BILL OF **COSTS** MISC. APPLICATION NO. 1847 OF 2024

ARISING FROM HIGH COURT CIVIL SUIT 867 OF $2022$

# FRANCIS KABALI SEBBOWA T/A SEBBOWA & CO. ADVOCATES.................................... AND KABALI SEBBOWA ADVOCATES

## **VERSUS**

## NADYA DIMITROVA MILEVA....................................

## **BEFORE: HON. LADY JUSTICE SUSAN ODONGO**

### **RULING**

#### **Background:**

The factual background to this application is set out in the evidence of the parties to wit, the applicant's application, the affidavit in support and rejoinder, and the Respondent's affidavit in reply and supplementary affidavit in reply, briefly that:

The Respondent opened a bank account with KCB Bank and later the Bank signed up the Respondent for the Bank's E-Service banking services. On numerous dates,


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Uganda shillings 121,025,185 was illegally and without the Respondent's consent withdrawn from her bank account using the E-Services of the Bank.

The Respondent commenced legal proceedings and instituted High Court Civil Suit no. 867 of 2022 against the Bank, for inter alia breach of banker-customer relationship and for acting negligently in permitting the said transactions. The Respondent then filed Miscellaneous Application 1194 of 2023 for orders for discovery/production of certified true copy of the internet banking policy that was in use by the Bank. The matter proceeded to mediation under Mediation Cause 85/23. All relevant pleadings in respect to the said Civil Suit and other matters arising therefrom were drawn and filed by the Applicant who in addition represented the Respondent in the proceedings when the matters came up for hearing.

The Applicant and the Respondent did not conclude an agreement to govern this relationship or provide for the remuneration in respect of legal fees. On 21st May 2024, the Respondent issued instructions to M/s Karungi, Partners and Solicitors to take over conduct of the suit as her Advocates by filing a Notice of Change of Advocate on 21st May 2024, effectively revoking the Applicant's instructions. The Applicant sought to obtain remuneration from the Respondent for the period until the change of Advocate, by delivering the bill of costs to the Respondent. However, the Respondent denied responsibility for payment of legal fees stating that she had not issued instructions to the applicant to represent her but a company known as Trigger Enterprises Limited where she was a director at the time, had issued the instructions to the Applicant under a corporate agreement with the Applicant. This has prompted the Applicant to file this application for leave to have the bill of costs taxed.

## The Application:

This application is brought by Notice of Motion under the provisions of Article 126 of the Constitution of the Republic of Uganda, 1995 (as amended), Section 33 of the Judicature Act cap 13, Section 98 Civil Procedure Act Cap 71, Section 57, 58 & 60 of


the Advocates Act Cap 295 and Order 52(1) Civil Procedure Rules SI 171 seeking orders that:

- 1. The Applicant's advocate/client bill of costs be taxed; - 2. Costs of the application be provided for.

The Application is supported by an affidavit deponed by the Applicant, Francis Kabali Sebbowa. It is stated by the Applicant that the Respondent is the plaintiff in High Court Civil Suit 867/22, Nadya Dimitrova Mileva Versus KCB Bank Ltd. That sometime back, the Applicant, upon the instruction of the Respondent, prepared and filed the requisite documents for the said suit in the High Court and when the said suit came up for hearing, the Applicant made appearance as Advocate for and on behalf of the Respondent. That upon the instructions of the Respondent, the Applicant also prepared court documents and entered appearance for and on behalf of the Respondent in Miscellaneous Application 1194/23 Nadya Dimitrova Mileva Versus KCB Bank Ltd (Application and affidavits marked Annexture "C" and "D") and Mediation cause 85/23 Nadya Dimitrova Mileva Versus KCB Bank Ltd. The Applicant contends that the interlocutory application was successfully prosecuted by the Applicant to the satisfaction of the Respondent. Later, on 21st May 2024, the Respondent issued instructions to M/s Karungi Partners and Solicitors to take over conduct of the suit as her Advocates by filing a Notice of Change of Advocate (Annexture "A").

A disagreement arose between the Applicant and the Respondent as to costs to be paid to the Applicant for the work done. The Applicant contends that he has not been paid for the services rendered to the Respondent before the change of Advocate. The Applicant avers that there was no signed agreement in form stipulated by the Advocates Act, as between himself and the Respondent for the payment of his legal fees at the time of taking instructions. He confirmed that he prepared bill of costs totaling Ugx 31,120,503.7/= (Annexture "B") and served the Respondent on 5 th June


2024 but the same was ignored. That it is now over 30 days since the said bill was delivered to the Respondent but the Respondent has failed, neglected or refused to settle the bill or cause its taxation. The Applicant adduced an affidavit of service deponed by Thomas Mukama stating that he found the respondent at her premises in Kansanga and gave her a copy of the bill of costs but the Respondent refused to acknowledge receipt advising him to take the documents to her lawyers, M/s Karungi, Partners and Solicitors. That he obliged and proceeded to the Respondent's lawyers whom he served the Bill of Costs (Annexture "C").

The Applicant further contends that the Respondent has adamantly refused to settle the Applicant's Bill despite being served with the same. The Applicant invited the Court to allow the application in the interest of justice.

#### The Affidavit in reply

The Respondent opposed the application through an affidavit in reply deponed on 3 rd October 2024 by herself, Nadya Dimitrova Mileva. She contends that whereas she was the plaintiff in HCCS 867/22 Nadya Dimitrova Mileva Versus KCB Bank Ltd, she is not indebted to the applicant as alleged for she has personally never engaged the services of the Applicant in the prosecution of the said suit and or the matters arising therefrom. That the Applicant was at all material times engaged and paid by Trigger Enterprises Limited, as part of corporate arrangement, to represent the respondent in the said matters as the Respondent was its Director. In support of this the respondent submitted a copy of the bank statement of Trigger Enterprises Ltd to show payments by the Company to the Applicant on 23rd September 2022 and 4th October 2022, respectively reading "consultation fee KCB 55590890573256" debited 2,000,000" and "legal fees lawsuit 55840099703151 debited 2,000,000" (Annexture "AA1").

She further stated that the subject of legal fees has never come up between herself and the Applicant considering that at all material times the Applicant was remunerated by Trigger Enterprises Limited. That there was no letter of engagement or formal instructions between herself and the Applicant.


The Respondent denies that there have been efforts made towards resolving the billing matter before this application. She confirmed that the applicant served a copy of the Bill of costs on her lawyers immediately after the Notice of Change of Advocates but there has been no further discussion. The Respondent further states that she was informed by her lawyer, Counsel Anne Karungi, that she had held a telephone conversation with the Applicant and they had agreed to conference or have a meeting regarding the Bill of costs. However, the Applicant has never conferenced the Bill of costs nor fixed the taxation hearing. She averred that as informed by her lawyers, the application is premature, procedurally flawed and offends the law. She further stated that the Application is not a reference within the meaning of the law as to warrant a hearing before the trial judge. The respondent seeks that this court should dismiss the application with costs.

#### Rejoinder:

The Applicant filed supplementary affidavit dated 10th October 2024, deponed by himself by which he advanced that the Respondent's affidavit in reply is defective for being filed outside the requisite 15 day period without leave of court (application served on respondent's counsel of 16th September 2024 and affidavit in reply filed on 3 rd October, 2024). He further stated that he does not have any corporate arrangement with Trigger Enterprises Ltd in which he was instructed to represent the respondent in the said matters or that the legal fees for representing the respondent in the said matters would be paid by Trigger Enterprises Ltd. In further averment the applicant stated that he has never debited or withdrawn or received any money from the bank accounts of Trigger Enterprises Limited be it as payment for legal services provided in the said matters or for any other reason. That the alleged bank statement attached does not show that any money was debited, transferred or received by him either in person or in his bank accounts from Trigger Enterprises Ltd. In respect to the payment of his legal fees, the Applicant averred that he has never agreed with the Respondent that the legal fees for


representing the Respondent in the matters shall be paid by Trigger Enterprises Limited.

The Applicant also contended that the respondent willingly received legal services from the Applicant and as proof of this he averred that during the hearing of the said matters on 30th November 2023 the Respondent attended court in person in the Applicant's presence and when he introduced himself as her advocate and her as his client, the Respondent did not object, state or claim that the Applicant was not her advocate nor did she state or claim that she had not instructed him to represent her. The Applicant stated that in the Respondent's affidavit evidence in support of MA 1194/2023 the Respondent expressly stated that the applicant is her advocate (Annexture "C" and "D").

The Applicant's evidence also consisted of affidavit by Kabuye Gideon Kirumira, the Managing Director and Company Secretary of Trigger Enterprises Limited evidenced by a copy of the authorization and company form 20. The deponent denied that Trigger Enterprises Ltd instructed the Applicant to represent the Respondent in the said matters. He further stated that Trigger Enterprises Ltd has not passed a resolution and or entered any arrangement/agreement with either the Applicant and or the Respondent in which it instructed the Applicant to represent the Respondent in the said matters nor agreed to pay the Respondent's legal fees in the said matters. The deponent avers that the Applicant has never received any payment from Trigger Enterprises Ltd in the manner and for the purposes alleged by the Respondent to wit, legal fees in the said matters. He further stated that he contacted the Respondent through her advocate seeking to set an appointment but did not receive any response

In support of his claim, the Applicant obtained leave of this court to file a supplementary affidavit in rejoinder on 28th March 2024, in which he stated and attached an Email dated 23rd September 2022 by which the Respondent acknowledged that the Applicant is her legal counsel and representative (Annexture

"A").

#### Supplementary Affidavit in Reply:

The Respondent with leave of this Court filed a supplementary affidavit and stated that the email address, [nadya.mileva@triggerent.com,](mailto:nadya.mileva@triggerent.com) from which the said email was sent is her official company email address used for official communication in her capacity as shareholder and director at Trigger Enterprises Limited and that the said email was sent in her capacity as director of the Company. That it was common practice for the applicant, as Company counsel and paid by the company, to extend legal advice to her on personal matters without demanding or discussing payment from her. The Respondent further stated that at all material times the Applicant held out that the legal services rendered to me were covered under the corporate arrangement between himself and the Company such that despite the Respondent's inquiries on the matter, the Applicant never demanded any personal payment from the Respondent. The Respondent attached an email where she made the said inquiry (Annexture "B"). In respect to the payments to the Applicant, the Respondent asserted that the entries in the bank statement are in respect to payments by Trigger Enterprises Limited to the Applicant's bank account as legal fees to file the plaint in the said Civil Suit. The Respondent stated that a search on the transaction details with the bank would confirm this. The Respondent further accused the Applicant of acting in conflict with her interest and of breach of his legal duty to her as his client, when in 2023 a dispute arose between herself and the other shareholders and directors of Trigger Enterprises and the Applicant, as lawyer for the Company, represented the interests of the majority shareholder Mr. Gideon Kirumira against her during negotiations for her removal from the company and unlawful removal from official company documentation. At this time the Applicant restricted communication with the Respondent thereby jeopardizing the Respondent's interest in the said civil suit. That the Respondent was compelled to engaged M/s Karungi &Partners, Advocates and Solicitors to take over conduct of the case.


## Representation and Hearing:

At the hearing of this application, the applicant was represented by Mr. Francis Kabali Sebbowa, while the respondent was represented by Mr. Natamba.

The Parties were directed to address this Court on 2 specific issues, viz.;

a) Whether the Applicant acted under the instructions of the Respondent.

b) Whether the Applicant should be granted leave to tax the advocate-client bill of costs.

However, the Applicant raised preliminary objections during the hearing in respect to the propriety of the affidavit evidence of the Respondent seeking to have part of it struck off. The Court guided the Applicant to address the Preliminary Objections together with the merits of his application in the written submissions. Therefore in addition to the merit issues, the other issue for determination is: Whether the affidavit evidence of the respondent contravenes the law and should be struck out.

I have carefully reviewed the materials on record, the submissions of the parties and the laws and authorities cited.

## Issues for determination

The are therefore:

- 1. Whether the affidavit evidence of the respondent contravenes the law and should be struck out. - 2. Whether the Applicant acted under the instructions of the Respondent. - 3. Whether the Applicant should be granted leave to tax the advocate-client bill of costs.

### Issue 1

Whether the affidavit evidence of the respondent contravenes the law and should be struck out.

Applicant's Submissions;


The Applicant sought to have certain parts of the respondent's affidavit in reply and supplementary affidavit struck out or disregarded when determining the application, for introducing new allegations (paragraph 7-9 of Respondent's supplementary affidavit) which were outside the scope directed by this Court and that the Applicant has not had the opportunity to rebut hence prejudicing the Applicant's right to be heard. Further the Applicant submitted that the bank statement (Annexure "AA-1" to affidavit in Reply and Annexure "D" of the supplementary Affidavit in Reply) adduced as evidence be struck out for contravening the provisions of the Evidence (Banker's) Book Act Cap. 9. This provision follows that the bank statement shall not be admissible in evidence under the Act unless it is proved by a partner or officer of the bank orally or by affidavit that the book was at the time of making the entry one of the ordinary books of the bank and that the entry was made in the usual and ordinary course of business and that the book is in the custody and control of the bank. Further that a copy of an entry in a banker's book shall not be admissible as evidence under the Act unless proved orally or by affidavit by some one who has examined the original entry that the copy has been examined with the original entry and is correct. The Applicant cited the case of Standard Chartered Bank (U) Ltd Vs. Mwesigwa Geoffrey Philip HCMA No. 477 of 2012.

#### Respondent's submissions

In response to the Objection regarding Paragraphs 7 - 9 of the Respondent's Supplementary Affidavit in Reply the Respondent submitted that when the matter first came up for hearing on 7 th April, 2025 at 11:00am, in the presence of both Counsels and parties, the Respondent sought leave of Court to file a Supplementary affidavit in reply and to add evidence of correspondences between the Applicant and Trigger Enterprises Limited to clarify on the relationship of the Applicant and the said company. That the Applicant objected and stated that the Supplementary affidavit in reply may bring new evidence. However, Court granted the said leave as prayed and permitted the Applicant to file an affidavit in rejoinder before the next hearing date if


he deemed it necessary. The Respondent further submitted that it is therefore not accurate to claim that the Court limited the Respondent's Supplementary Affidavit solely to the content of the email annexed therein. The claim that the Applicant is prejudiced as he does not have a right to respond is also misconceived as court permitted him to respond to the Respondent's Supplementary affidavit in Reply.

In response to the Objection Regarding Annexures "AA-1" and "D", the Respondent submitted that the Evidence (Bankers' Books) Act does not apply to Affidavit evidence. According to the Respondent, the Evidence (Bankers' Books) Act, Cap 9 is governed by similar principles to the Evidence Act, Cap 8. Section 1 of the Evidence Act stipulates that the Act shall not apply to affidavits presented to any court or officer nor to proceedings before an arbitrator. The Law on Affidavit evidence is provided for under Order 19 of the Civil Procedure Rules. In support of this submission the respondent cited the case of *David Kato Luguza & Anor Vs Evelyn Nakafeero & Anor High Court Civil Appeal No. 37 of 2011* which relied on the decision in *Life Insurance Corporation of India V Panesar [1967] EA 615* where it was held that unless otherwise provided for in a written law, the rules of evidence do not apply to affidavits.

The respondent further submitted that Section 5 of the Evidence (Bankers' Books) Act exempts bank officers from being compelled to appear as witnesses unless the bank is a party to the proceedings. Stanbic Bank is not a party to this matter, and the instant application does not require evidence to be given orally.

The Evidence Act of Uganda does not apply to affidavits because affidavits are not considered evidence given in court, but rather sworn written statements made outside court. Here's a clear breakdown of the reasons:

#### Court's determination:

In regard to the Applicant's submission that paragraph 7-9 of Respondent's supplementary affidavit were outside the scope directed by this Court and that by the inclusion of the impugned paragraphs the Applicant has not had the opportunity to

 rebut hence prejudicing the Applicant's right to be heard, I have studied the record of proceedings dated 7 th April, 2025 and find that the submission of the Applicant is not the correct position. The record of proceedings aligns with the submission by the Respondent. The Applicant has not suffered any prejudice. He had the occasion to make a rejoinder but did not partake of the opportunity. This cannot be visited on this Court or on the Respondent. The said paragraphs of the Respondent's Supplementary Affidavit are hereby retained.

The Applicant's second Objection seeks for the striking out of the bank statement (Annexure "AA-1" to affidavit in Reply and Annexure "D" of the supplementary Affidavit in Reply) as evidence for contravening the provisions of the Evidence (Banker's) Book Act Cap. 9. To this the Respondent's argument is that since the Evidence (Bankers' Books) Act, Cap 9 is governed by similar principles to the Evidence Act, Cap 8 and the latter does not apply to Affidavits, then the Evidence (Bankers' Books) Act does not apply to the Affidavit and as such to the bank statement adduced as evidence in support of the Respondent's affidavit.

It is trite that the Evidence Act does not apply to affidavits but rather that affidavits are governed by the Civil Procedure Rules, S. I. 71-1 and the Oaths Act, Cap 19. The reasons being that the Evidence Act primarily regulates the presentation and admissibility of oral and documentary evidence in court during trials yet Affidavits are written, sworn declarations made outside Court that are not tested through crossexamination (unless the court orders otherwise), which is a key requirement under the Evidence Act for admissible testimony. Further, Affidavits are procedural, not substantive evidence and purposed usually to support interlocutory applications or motions and not to serve as trial evidence.

The Evidence (Bankers' Book ) Act specially provides for the principles and requirements for proving entries in bankers' books. The Act defines banker's books to include ledgers, day books, cashbooks, account books and all other books used in the

ordinary business of the bank. This definition can be interpreted broadly to cover not just physical books but extend to electronic records including bank statements generated from a bank's internal accounting or transactional systems. According to section 2 of the Act, a copy of any entry in a banker's book shall in all legal proceedings be received as prima facie evidence of that entry, and of the matters, transactions and accounts in recorded in it. Under section 3, the Act stipulates the criterion for admissibility in evidence of a Banker's book as follows:

#### *"3. Proof that a book is a banker's book*

- *(1) A copy of an entry in a banker's book shall not be received in evidence under this Act unless it is first proved that the book was at the time of the making of the entry one of the ordinary books of the bank, and that the entry was made in the usual and ordinary course of business, and that the book is in thecustody or control of the bank.* - *(2) Such proof may be given by a partner or officer of the bank, and may be given orally or by an affidavit sworn before any commissioner or person authorised to take affidavits."*

The test of admissibility as evidence extends to verification of a copy of an entry in a banker's book by proof, given either orally or by an affidavit sworn before any commissioner or person authorised to take affidavits, that some person has examined the copy with the original entry, and is correct (ref; section 4). Notably under the Act, a banker or officer of a bank shall not, in any legal proceeding to which the bank is not a party, be compellable to produce any banker's book the contents of which can be proved under this Act, or to appear as a witness to prove the matters, transactions and accounts recorded in a banker's book, unless by order of a court made for special cause. A party to a legal proceeding may apply to court for orders that the party be at liberty to inspect and take copies of any entries in a banker's book for any of the purposes of those proceedings with or without summoning the bank or any other party.

In summary, a bank statement is admissible in evidence if properly certified under the Act. It was submitted by the Respondent that the bank officials cannot be compelled

to produce any banker's book in legal proceedings where the bank is not a party however as provided in section 6, this requirement can be dispensed with by Court order made pursuant to an application to enable the party to take copies of any entries in a banker's book for any of the purposes of those proceedings. I find that the Respondent's bank statement (Annexure "AA-1" to affidavit in Reply and Annexure "D" of the supplementary Affidavit in Reply) adduced as evidence fell short of the admissibility requirements of the Act. It is therefore struck out.

## Issue 2

## Whether the Applicant acted under the instructions of the Respondent.

The parties' submissions on this issue are reflective of their affidavits which I have already referred to in detail so I will not repeat the submissions here.

This issue begs the question as to whether or not an Advocate-Client relationship was created. Section 1 of the Advocates Act Cap 295 defines "advocate" as any person whose name is duly entered upon the Roll. The Section also defines "client" to include any person who, as a principal or on behalf of another, or as a trustee or personal representative, or in any other capacity, has power, express or implied, to retain or employ, and retains or employs, or is about to retain or employ, an advocate and any person who is or may be liable to pay an advocate any costs.

The position of the Law is that Advocates are prohibited from acting for any person unless they have received instructions from that person or his or her duly authorized agent. (Regulation 2 of the Advocates (Professional Conduct) Regulations S. I 267-2).

The Courts have set out parameters of the advocate-client relationship, providing fundamentals for the existence of the said relationship. In *Tesfalidet Ghebrat v Marlin Advocates and Another (Miscellaneous Civil Application 196 of 2020) [2021] UGCommC 152 (25 March 2021)* the Court guided that two elements are involved in the establishment of the advocate-client relationship, viz; a person seeks advice or assistance from an

advocate; and the advocate appears to give, agrees to give or gives the advice or assistance. According to the Court the act of authorising or employing an advocate to act on behalf of a client, constitutes the advocate's retainer by the client.

Whereas in *Ntege Mayambala V Christopher Mwanje High Court Civil Appeal No. 72 of 1991,* the Court expressed the view that the existence of the relationship is a matter of fact; in *Namayega Barbara Versus Etot Denis, Mooli Albert Sibuta, Waluku Anthony T/a Waluku Mooli & Co. Advocates HCCS No. 939 of 2019* the court held the view that the existence of an Advocate-Client relationship could be circumstantially established. In this case the Court enunciated that the relationship may arise by express retainer under a written agreement or by implied retainer, imputed from the conduct of the parties.

In *Matovu and Matovu Advocates vs Damani Jyotibala and 2 others (Miscellaneous Application No. 0029 of 2021)* the Court guided that;

*"As a general principle, the relationship of advocate and client is a relationship between two contracting parties. Being contractual, its general contours are governed by the same rules that govern the creation of a contract, and so it must be proved like any other contract. The easiest method of proving an advocate-client relationship is a written retainer agreement or engagement letter describing the existence and scope of the advocate's representation of the client. However, neither a written contract nor an express appointment and acceptance is essential to the formation of the relationship. The relationship may be established by mutual agreement manifested in express words or conduct. Courts can and do use other evidence to establish the existence of the advocate- client relationship, including the parties' behaviour, correspondence between the advocate and the client, invoices for services rendered, proof of payment made to the advocate, and other relevant facts or information. There has to be some form of agreement: whether oral or in writing, or inferred by theconduct of the parties."*

In the case before this Court, apparently, there is no written agreement between the Applicant and the Respondent. Therefore, the bone of contention here is whether in


the absence of a written agreement and in light of the facts of the case, the Advocate-Client relationship can be imputed.

Generally implied contracts, the Advocate client relationship being one premised on contract, may be recognized by the Courts when necessary to explain the parties' actions. The standard is not what the parties thought but what a reasonable person would conclude from their actions. A Structured Objective Analysis which may provide guidance in establishing an implied retainer consists of the following considerations:

- 1. The objective test of intention. Would a reasonable person observing the conduct of the parties arrive at a conclusion that the parties intended to created an Advocate client relationship? The focus is not on what the parties subjectively believed. It is more how the parties acted and communicated. - 2. Necessity; is it necessary to imply a contract to explain the conduct. Here the conclusion should be that the only reasonable explanation for the parties' conduct is that they intended to form the Advocate client relationship. - 3. Consistent conduct: was there conduct consistent with a contract? Parties action must be consistent with the existence of a contract for example drawing legal documents; filing legal documents and representant. - 4. Certainty; are the terms sufficiently certain to enforce? even is a contract is implied from conduct it is necessary that the essential terms as dictated by the trade are sufficiently certain to form a valid contract.

From the facts, the applicant's evidence that the legal documents in respect of Civil Suit no. 867 of 2022, Miscellaneous Application 1194 of 2023 and Mediation cause 85/23 were drawn and filed by the Applicant, and that the Applicant represented the Respondent in the said matters, was not controverted by the Respondent. Basically, the Respondent does not dispute that the Applicant performed the work required or that she received the services of the Applicant in his capacity as Advocate. The Respondent's evidence is that the work was performed under the instruction of the


company, M/s Trigger Enterprises Limited, in which she was a director at the time of her suit against KCB Bank. The Respondent stated that at all material times the Applicant was acting under the instructions of the Company with whom the Applicant had a corporate agreement. This Agreement was not adduced in evidence. The Respondent having asserted the existence of the Corporate Agreement, had the burden of proof to prove its existence (Section 101 of the Evidence Act).

To further connect the relationship that existed between the Applicant, the Company and herself, the Respondent in her supplementary affidavit accused the Applicant of acting in conflict with her interest in a dispute that arose between herself and the company directors, by representing the interest of the majority shareholder. I observe that this is an allegation not remotely connected to the issue at hand. The crux of the matter before this Court being the establishment of responsibility for remuneration of services rendered and received. I will, therefore, not delve into those paragraphs of the Respondent's supplementary affidavit

As part of the Applicant's evidence in rebuttal, he filed affidavit deponed by Kabuye Gideon Kirumira, the Managing Director and Company Secretary of the Company by which the company denied having a corporate agreement under which they instructed the Applicant to represent the Respondent in the said matters and further denied making any payments to the applicant as legal fees for the said matters. Notably, the company is not party to this application.

The Applicant also deponed an affidavit denying the existence of the said corporate agreement; disputing the legitimacy of the bank statement to the extent that the entries alleged to be transactions from the company to him did not reflect that they were made to him or paid into his bank account. The applicant contended that while representing the respondent and introducing himself as her advocate in Court, she did not at any one time deny this position. He further adduced evidence of an email in which the


respondent was communicating that the applicant is her advocate.

I have considered the evidence of the parties, their written submissions and the legal principles articulated above. Aided by the these and the objective test analysis, I hold the view that from the acts and communication of the Applicant and the Respondent a duty of care was created under which the Applicant was not at liberty to engage with a person who has interests materially adverse to the Respondent, in this case KCB Bank Ltd. Such duty can only be established where there is a legally enforceable relationship. In addition, from the circumstantial evidence, consisting, drawing and filing of the court documents, the representation by the Applicant and the oral and written statements by the Respondent alluding to the Applicant as being her advocate, the only reasonable explanation is that the parties intended to create a legally binding relationship - an Advocate-client relationship. The consistent conduct of both parties through 3 matters and the eventual Notice of Change of Advocate points to the existence of a legal relationship. In the trade of legal representation, the bare minimum, which infers contractual relations entails rendering legal advice, drawing and or filing legal documents, appearance and representation in court. These elements, apparently comprised the interaction between the Applicant and the Respondent.

I note that civil suit no. 867 of 2022 and the matters arising therefrom, concerned the Respondent in her personal capacity touching on her personal Bank Account and not in her capacity as director of the said company or concerned with issues of the company. In the circumstances, there was no better person other than the Respondent to furnish the Applicant with information to enable the representation in the matters, and in so doing the Respondent's actions did indeed amount to personally issuing instructions to the Applicant. Although there was no written agreement for the provision of legal services, several of the respondent's pleadings in Civil Suit No. of 867 of 2022 and matters arising therefrom were drawn and filed by the Applicant. An implied retainer is inferred.


I therefore answer this issue in the affirmative, finding that an Advocate-Client relationship was established between the Applicant and the Respondent.

### Issue 2

## Whether the Applicant should be granted leave to tax the advocate-

## client bill of costs?

The law under Section 63 of the Advocates Act (Cap. 267) addresses the procedures and requirements for advocates seeking to recover legal fees from clients. This section ensures that clients are adequately informed about the costs and provides mechanisms for dispute resolution before legal action is taken. The provision sets a mandatory waiting period of one month after delivering a bill of costs to the client, before legal action can be taken by an advocate to recover fees. This period allows the client time to review the charges and, if necessary, request a taxation of the bill. There are exceptions to the waiting period such that if there is probable cause to believe that the client is about to leave Uganda, declare bankruptcy, or take actions that might hinder payment, the court may permit the advocate to commence legal proceedings before the one-month period elapses.

Subsection (2) thereof sets the requirements for delivering the bill. Accordingly, the bill must be signed by the advocate or a partner in the firm, delivered to the client personally, sent by registered post, or left at the client's business or place of abode. Within one month of receiving the bill, the client may request the taxing officer to fix a date for taxation. Once this request is made, any legal action by the advocate to recover fees is stayed until the taxation is completed. The consequences where the client does not request taxation within the specified period, the court may, upon application by either party, order taxation under certain conditions. However, such an order is generally not made after twelve months from the delivery or payment of the

bill, unless special circumstances exist.


The Applicant's evidence is that he prepared bill of costs and served the respondent on 5 th June 2024 but the same was ignored and the 30 days within which the payment should have been made have since elapsed. In support of this averment, the applicant submitted a bill of costs totaling Ugx 31,120,503.7/= signed by the Applicant and an affidavit of service deponed by Thomas Mukama stating that he found the respondent at her premises in Kansanga and gave her a copy of the bill of costs but the respondent refused to acknowledge receipt advising him to take the documents to her lawyers, M/s Karungi Partners and Solicitors. That he obliged and proceeded to the respondent's lawyers whom he served the Bill of Costs. The applicant further contends that the respondent has adamantly refused to settle the applicant's bill of costs despite being served with the same. The Applicant invited the Court to allow the application in the interest of justice.

For her part, the Respondent denied that there had been efforts made towards resolving the billing matter before this application. She confirmed that the Applicant served a copy of the Bill of costs on her lawyers immediately after the Notice of Change of Advocates but there had been no further discussion. The Respondent further stated that she was informed by her lawyer, Counsel Anne Karungi, that she had held a telephone conversation with the Applicant and they had agreed to conference or have a meeting regarding the Bill of costs. However, the Applicant had never conferenced the Bill of costs nor fixed the taxation hearing. She averred that as informed by her lawyers, the application is premature, procedurally flawed and offends the law, and that the Application is not a reference within the meaning of the law as to warrant a hearing before the trial judge. The respondent seeks that this court should dismiss the application with costs.

I find that it is not disputed that this application was brought after the expiry of the prescribed thirty days' period under the Act. The bill of costs is attached to affidavit in support of the application as annexture "B". The signature on the Bill has a strong likeness to that in the Notice of Motion and affidavit in support in respect to this


application which is appended by Francis Kabali Sebbowa, an advocate in the Applicant firm who had personal conduct of the Respondent's case Civil Suit 867 of 2022 and other matters arising therefrom. There is an affidavit of service deponed by Thomas Mukama, a certified court process server employed by the Applicant, clarifying on the manner in which the bill of costs was served on the Respondent who declined to receive it but the same was delivered to her Advocate, M/s Karungi, Partners and Solicitors. There is no evidence that the Respondent did move to have the bill taxed.

Having reviewed the evidence adduced, I am satisfied that the Applicant has fulfilled the requirements of section 57 of the Advocates Act.

The Advocate-Client relationship between the Applicant and the Respondent having been established, and evidently, the Respondent has neither asserted nor proved that it paid any legal fees to the Applicant, in the premises, I find that the Applicant provided legal services to the Respondent which are yet to be paid for.

Consequently, I make the following orders:

i. This application is allowed

ii. Leave is hereby granted the registrar to tax the applicant's bill of costs in Civil Suit No. 867 of 2022 and other matters arising therefrom until 21st May 2024 the date of the notice of change of advocate.

iii. Costs of this application are awarded to the applicant.

Dated, signed and delivered electronically this 25th day of April 2025.


Susan Odongo

# JUDGE