Kakeeto t/a Adil Advocates and Solicitors v Ssempebwa (Misc Cause 104 of 2022) [2023] UGHCLD 207 (14 July 2023)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DTVTSTON)

## MISCELLANEOUS CAUSENo. 1O4 of2022

## KAKEETO SIRAJE T/A ADIL ADVOCATES & SOLICITORS APPLICANT VERSUS

## DENIS SSEMPEBWA == = == == = = == ==== == ===--= RESPONDENT

## BEFORE: HON. JUSTICE FLAVTA NASSUNA

#### RULING

## Introduction:

- 1. This application was brought by Kakeeto Siraje T/A Adil Advocates & Solicitors (under section 57 of the Advocates Act, Regulation la (e) and the 6th Schedule of the Advocates Remuneration and Taxation of Costs) Regulations and Order 50 rules 1 & 3 and Order 52 rules 1 & 3 of the Civil Procedure Rules) through his legal representatives M/s Mulindwa Associates & Co. Advocates. - 2. The Applicant was seeking orders that; - a. He be granted leave to file an advocate-client bill of costs, - b. The advocate-Client bill be taxed, - c. The respondent pays the taxed bill of costs, - d. Costs of the Application be provided for.

## 3. Grounds for the Application:

The grounds for this Application are contained in the applicant's aflidavit in support, but briefly they are that;

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- a) the Respondent instructed the applicant to institute a suit for breach of contract for sale of land worth Ugx 35O,OOO,OOO/- (Uganda Shillings Three Hundred Fifty Million Only). - b) the applicant diligently performed and carried out the instructions and filed Civil Suit No. 465 of 2O2O and Miscellaneous Application No. 846 of 2O2O. - c) the applicant incurred disbursements in the course of conducting the matter but the respondent did not pay him. - d) It was over 30 (thirty) days since the bill of costs was served on the respondent but the same remained unpaid.

#### 4. Response:

The respondent filed an affidavit in reply by which he ca1led upon court to dismiss the application with costs. Briefly he stated that;

- a) He had never instructed the applicant to file Civil Suit No. 465 of 2O2O as a-lleged by the applicant. - b) Civil Suit No. 465 of 2O2O was filed by one Faisal Sengendo against the respondent and the respondent was defendant and not the Plaintiff in that suit. - c) His lawyers in the said case were M/s Okello Oryem & Co. Advocates who duly filed his written statement of defence on the 13th of August, 2O2O and have since represented him in the case. - d) the applicant has never been the Respondent's lawyer in Civil Suit No. 465 of 2O2O and never represented him.

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- e) That the respondent has never instructed the applicant to represent him in Miscellaneous Application No. 846 of 2O2O. - f) That the Respondent's lawyers on court record as per the ruling in that matter were M/s Okello Oryem & Co. Advocates. - g) That the contents of the applicant's a-ffidavit in support of the application are false and designed to extort money from the Respondent.

#### 5. Rejoinder:

The applicant filed an affidavit in rejoinder to rebut the respondent's claims by which he stated that;

- a) the affidavit of the respondent contained fa-lsehoods and that his lawyers shall raise a pr to strike out the same objection at the earliest - b) That paragraphs 4 and 5 of the Respondent's Affidavit in reply are true in as far as the applicant was defending the suit, HCCS No. 465 of 2O2o and filed subsequent applications M. A847 of 2O2O and M. A 846 of 2O2O for interim and temporary injunctions respectively. - c) the respondent deponed affidavits in support of the applications. - d) That the applicant also filed submissions in the aforementioned applications on behalf of the respondent. - e) That the alleged lawyers on record as alleged by the respondent only filed a notice of change of instructions on the 6tt' of August, 2O2O when the Applicant had undertaken the legal scope of work for which the scope was not paid.

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The issue to be decided by court is whether this application meets the legal requirements for the grant of leave to tax the advocate - client bill of costs.

6. Both parties filed written submissions in this case which I have carefully studied and need not reproduce them here . I have also carefully studied the record of proceedings and pleadings on record.

## 7. Decision of Court

In applications of this nature, the applicant has to satisfy court on a ba-lance of probabilities that there existed al Advocate-client relationship (by way of express or implied instructions to the Advocate), that services were rendered, that a signed bill of costs was served on the client (section 57 of the Advocates Act), that a period of 30 (thirty) days has lapsed without the Advocate and client agreeing to or paying the suggested amount (section 58 of the Advocates Act).

In the case of Ondoma Sammuel t/a Alaka & Co. Advocates v. Kana Richard; Miscellaneous Civil Application No. 16 of 2018, it was held that "Adaocate / client costs are the costs that an aduocate claitns frotn his own client qnd which the adaocate is entitled to recoaer frorn a client, for professional senfices rendered to and disbursements rnade on behaf of the client. These costs are pagable bg the client whqteuer the outcome ofthe rnatter for which the adaocates' seruices u)ere engaged

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## qnd qre not dependent upon ang auard o.f costs bg the cottrt..."

It is therefore pertinent for me to consider whether an advocate client relationship existed in the case before me and the nature of instructions if any that the advocate received from the client. The existence of an Advocate-client relationship is premised on the issuance of instructions from a client. These instructions can be either through arr agreement (See Peter Jogo Tabu & Co-Advocates v. Waco Fred; Miscellaneous Civil Application No. 3O of 2OO9) or they can be implied through a client's acquiescence to the Advocate's representation.

In the instant case, the applicant stated in his application and affidavit in support that the respondent instructed him to institute a suit for breach of contract for sale of land worth 350 million. He undertook the instructions and indeed filed HCCS. No. 465 of 2O2O and Misc. Application No. 846 of 2O2O. (See paragraph 2 and 3 of the affidavit in support of the application). He did not attach copies of any pleadings that he filed in these matters. However, perusal of the pleadings on record shows that in the two matters cited, the respondent was defendant in HCCS No. 465 l2O2O and Respondent in Misc. Application No. 846 12020. The record further shows that in HCCS. No. 465/202O it is Ms. Okello-Oryem & Co. Advocates who filed a Written statement of defence on behalf of the respondent/ defendant.

In the affidavit in rejoinder, the applicant turned around and stated that he defended HCCS. No. 465/2020 and filed Misc. Applications No.846 and 847 of 2O2O. He still did not attach

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pleadings for HCCS No. 465 of 2O2O and Misc. Application 847 of 2O2O bttt attached pleadings for Misc. application 846/2020. However, perusal of these pleadings attached show that the application 84612020 was filed by MS. Balikuddembe &Co. Advocates.

The applicant thus deponed two affidavits with very contradicting information. While one states the instructions were to file a suit the other says the instructions were to defend.

It appears the applicant himself is not certain of the instructions if any that he received. An advocate who wishes court to allow him file and tax an advocate client bill of costs should be certain about the instructions that he received from his client for which he can demand payment. Short of that the court will not grant him leave to fiIe the bill and have the same taxed.

The applicant has failed to prove his case.

This application therefore hereby fails and the same is dismissed with costs to the respondent.

| Dated at Kampala this | lqd | K^r-]<br>ay of | 2023. | |-----------------------|-----|----------------|-------|

FLAVIA NA A MATOVT' Judge.

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