Kamau Eng. International Jansen Ltd and Another v Rushokora (Revision Cause 29 of 2020) [2024] UGHCCD 150 (12 September 2024)

## **THE REPUBLIC OF UGANDA**

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

## **(CIVIL DIVISION)**

#### **REVISION CAUSE NO. 29 OF 2020**

## **(ARISING OUT OF MENGO CIVIL SUIT NO. 577 OF 2022)**

## **1. KAMAU ENG. INTERNATIONAL JANSEN LTD**

**2. ARINAITWE DIDAS :::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANTS**

## **VERSUS**

**RUSHOKORA VICTOR ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

#### **BEFORE: HON. JUSTICE SSEKAANA MUSA**

#### **RULING**

This application is brought under Section 83 & 98 of the Civil Procedure Act, Section 17 of the Judicature Act Cap 13, Order 52 Rules 1, 2 and 3 of the Civil Procedure Rules seeking for orders that;

- 1. The taxed award dated 9th September vide Mengo Chief Magistrates Court EMA No. 0288 of 2022 be revised and set aside. - 2. Costs of this application be provided for.

The grounds upon which the application is based are contained in the affidavit in support of the application deposed by Arinaitwe Didas-Managing Director of the 1st applicant and briefly they are;

a) That on the 26th day of May 2021, the trial court awarded the respondent/plaintiff a sum of 3,600,000/= for breach of contract by the applicants vide Civil Suit No. 577 of 2015 and the appellants were ordered to pay taxed costs.

- b) That the plaintiff/respondent prepared and filed his own bill like an advocate to the tune of 51,694,000/= and on or about the 9th day of September 2022, the court taxed the bill of costs ex parte and allowed it at a sum of 23,690,200/= - c) That the bill of costs should not have been taxed by the trial Magistrate as it was improperly filed by the plaintiff himself and not an advocate. - d) That the bill of costs of the respondent was taxed by court shows the court acted with material irregularity and or injustice to the applicants. - e) That the applicants have since deposited on the advice of the trial Magistrate a sum of UGX 2,000,000/=.

The Respondent opposed the application by filing an affidavit in reply contending that;

- 1. The respondent instructed lawyers before and whose bill are covered under the said law and are to be paid their costs. - 2. That the respondent was advised by his lawyers that litigants are not barred from filing their bill of costs and the same was taxed by the trial magistrate and considered the same in that capacity since the respondent had represented himself. - 3. That the applicants were served with the taxation hearing notices and they refused to appear or to send a representative in court for taxation. - 4. That the record in the lower court shows that the respondent was represented by Rwakafuzi & Co. Advocates and Mugisa Namutale & Co Advocates and both lawyers are entitled to costs since the respondent paid for the services.

5. That if the actual costs of the advocates are included, the figure would go beyond 23,690,200/= that has been awarded by court.

At the hearing, the applicants were represented by *Counsel Kanyunyuzi Jennifer* and the Respondent was self-represented.

The court gave directives for filing of submissions, which have been duly considered in making this ruling.

## **Issues**

- *1. Whether this is a proper application for revision?* - *2. What remedies are available to the parties?*

## **Determination**

Counsel for the applicant submitted that the bill of costs was drawn and filed by the respondent in person as party and it was filed in the registry on the 14th day of March 2022 and the same was drawn as per the 6th schedule of the Advocates (Remuneration and Taxation of Costs) Amendment Regulations, 2018.

The applicant's counsel contended that the provisions of the Advocates Act intended the bill of costs to be filed by an advocate and not a party to the case in person.

Counsel submitted that since the respondent was self-represented upto the conclusion of the case, he was entitled to disbursements only for attendance and not seeking costs like an advocate.

According to counsel the trial magistrate exercised her jurisdiction with material irregularity and some of the awarded sums were exorbitant and other were luxuries like meals and refreshments.

Counsel argued that it is in the best interest that this court exercises its discretion in favor of the applicants and allows the application with costs.

The respondent in his own submissions contended that the trial magistrate/taxing officer did not act with material irregularity, since the bill of costs was presented for taxation was within her jurisdiction. It was submitted that it was within her knowledge the judgment creditor/respondent had earlier been represented by counsel and the counsel had not disputed anything in the bill.

The respondent submitted that the plaintiff/respondent and his former counsel jointly prepared and filed the bill of costs in the lower court, which counsel acknowledges and there was no injustice occasioned to the applicant/defendant.

# *Analysis.*

Applications of this nature are governed by **Section 83 of the Civil Procedure Act** which provides for the grounds to be satisfied for the said application to be granted. For such an application to succeed, the applicant must show that the order he seeks to be revised was passed by a court which;

- a) Exercised a jurisdiction not vested in it in law, - b) Failed to exercise a jurisdiction so vested; or - c) Acted in the exercise of its jurisdiction illegally or with material irregularity or injustice.

As long as one of the prerequisites is successfully proved by an applicant, court is inclined to grant an application for revision for the interest of justice. Counsel for the applicants argued that the trial Magistrate exercised jurisdiction with material irregularity and or injustice to the applicants when she taxed bill of costs presented by a litigant.

# *Section 60 (1) of the Advocates Act* provides

*Every application for an order of taxation of an Advocates bill or for delivery of such a bill and delivery of any deeds, documents and papers by an advocate shall be in the name of the same advocate.*

*Regulation 2 of the Advocates (Remuneration & Taxation of Costs) Regulations* provides for the application of the Regulations as follows;

*The Remuneration of an Advocate of the High Court by his or her client in contentious and non-contentious matters, the taxation of that remuneration and* *taxation of costs as between party and party in contentious matters in the High Court and in Magistrates court shall be in accordance with these rules.*

The respondent filed the Amended Bill of Costs drawn as per the 6th Schedule of the Advocates (Remuneration and Taxation of Costs) Amendment Regulations. Indeed, the bill and drawn and signed by the respondent not by the advocate who he alleges to have represented him.

One of the cardinal rules of interpretation of statutes is that where the provision of a statute is clear and unambiguous, the duty of the court is simply to interpret the clear provision by giving the plain wordings their ordinary interpretation without more. It is not the function of a court of law to bend backwards to sympathise with a party in a case in the interpretation of a statute merely for the reason that the language of the law seems harsh or is likely to cause hardship. See also *Lumweno & Co Advocates versus TransAfrica Assurance Co. Ltd CACA No. 95 of 2004*

The strict interpretation of the Advocates Act clearly provides for the advocate to present a bill in accordance with it and the regulations made thereunder. A litigant cannot draft and present a bill not drafted by an advocate in the matter. The Advocates Act seems to be strict on regulation of Advocates and there is no room for litigants to claim professional remuneration even if he is the one who paid for the legal services and costs.

The provisions of any law made by the legislature are not made for mere fun of it or for the purposes of meeting the whims and caprices of the interpreter. They must be interpreted and applied to meet the circumstances, conditions or situations for which they are made.

In the case of *Attorney General v Ndungu Theuri [1985] KLR 157; [1987] 1 KAR 9- 33; [1986-1989] EA 2*; The court of Appeal of Kenya held that a party who is not an advocate cannot rely on the provisions of the Advocates Remuneration Order. The respondent was not entitled to draft a bill and present the same for taxation in absence of his advocates who handled the matter.

Litigants are not entitled to make profit in litigation but rather they are only entitled to their disbursements expended during the trial and they should not share in the professional remuneration with the advocates. Costs of a suit in real terms belong to the advocate of a successful party. It is for that reason that although costs are awarded to a successful party under the Civil Procedure Act, (and in fact termed as *'party to party'* costs) the mandate to file a bill of costs originates from the Advocates Act that is reserved only for those on the roll, and not necessarily parties to the suit. In the case of *Commissioner for Lands v Oginga Odinga [1972] EA 125* court held that:

*"A successful party who is awarded costs is not entitled to make profit out of employment of an advocate. He can recover court fees paid, reasonable expenses paid or payable to hos witnesses and reasonable charges and fees paid of payable to his advocate or advocates. Whatever he received over and above his disbursements he must pass onto his advocate or advocates he cannot keep any part of it. If he does, the advocate will be sharing fees with unqualified person and will be committing an offence…..the profit costs in respect of an advocate work are simply paid over to the advocate. In fact, the advocate receives all monies and he pays over to his client only what is due to him under the judgment of the Court"*

The Advocate is entitled under the Advocates Act, to receive all monies and then defray to their client over and above what the client paid in what has been awarded as instruction fees. The advocate is in addition mandated to pay certain disbursements including any fees and charges paid, as well as reasonable expenses by the client or their witnesses. That being the case, once the advocate still holds instructions of their client, it is in their general mandate and discretion to file a bill of costs. They will of course still have a duty to consult with their client generally on the bill, and specifically on the client's actual entitlements in the bill. They need not receive specific instructions on how to handle costs. See *Mutebi David Ronnie v Dr. Bayigga Micheal Phillip Lulume High Court Miscellaneous Application No 08 of 2019 (Jinja HCT)*

I note that the respondent had earlier instructed two law firms to handle his matters before he took over the conduct of the matter personally. The two law firms are Mugisa Namutale Solicitors and Advocates & Rwakafuuzi & Company

Advocates provided legal services at different times for the respondent as per the pleading on record and court proceedings.

The principle is that a litigant may instruct legal counsel at any point in the proceedings. However, only an advocate who has instructions and has successfully prosecuted a matter can file a bill of costs and claim costs. The advocate's involvement must be overt on record and where there has been a change of advocates, a notice to that effect must be filed. An advocate who has not done any legal work in a matter cannot file a bill of costs for work they did not do. This would be conduct unbecoming and fraudulent of such an advocate who tries to hijack a completed matter to recover costs and or negotiate settlement of costs without the previous counsel's knowledge. See also *Mutebi David Ronnie v Dr. Bayigga Micheal Phillip Lulume High Court Miscellaneous Application No 08 of 2019 (Jinja HCT)*

The two counsel are at liberty to file their respective bill of costs for legal services rendered and should consider the respondent's disbursements. A bill of costs is "a true factual statement of services rendered" and this can only be achieved by an advocate who handled the matter and is on the court record.

The trial Magistrate therefore exercised jurisdiction illegally and with material irregularity or injustice, when she allowed the respondent to present a bill of costs drawn in accordance with the Advocates Act *(the bill of costs not properly filed before the court).*

This court revises the taxation award by setting it aside in totality. The respondent is only entitled to allowable disbursements granted at the discretion of the taxing master.

I make no Order as to costs

*Ssekaana Musa Judge 12 th September 2024*