Kiggundu & 7 Others v Kiyaga (Miscellaneous Application 552 of 2024) [2024] UGHCFD 57 (26 September 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (FAMILY DIVISION) MISCELLANEOUS APPLICATION NO. 0552 OF 2024** 5 **(ARISING FROM TAXATION CASE NO. 0036 OF 2023) (ARISING FROM MISCELLANEOUS APPLICATION APPEAL NO. 0001 OF 2021)**

# **1. KIGGUNDU SAMUEL**

#### 10 **2. ZALWANGO WINFRED**

- **3. ROBINSON JOSEPHINE PROSSY** - **4. KIGGWE FRED** - **5. NAKAZZI BEATRICE** - **6. NDIKOOYA ROBINAH** - 15 **7. NABAZIWA ESTHER** - **8. GUDDIRA BENJAMIN KITYO ================= APPLICANTS**

**VERSUS**

**KIYAGA GEOFFREY ============================ RESPONDENT**

# 20 **BEFORE: HON. LADY JUSTICE ALICE KOMUHANGI KHAUKHA RULING**

#### **Introduction**

This Ruling is in respect of an Application brought under Sections 96 and 98 of the

25 Civil Procedure Act Cap. 282, Order 52 Rules 1 and 3 of the Civil Procedure Rules SI 71-1 for Orders that:

- (a) Leave be granted to the Applicants to file a reference against the costs awarded by the Taxing Officer in Taxation Case No. 0036 of 2023 out of time; and - (b)That the costs of the Application be provided for. - 5

# **Appearance and Representation**

When the matter came up for hearing, the Applicants were represented by Mr. Edward Bamulutira of M/S B. Edward & Co. Advocates while Mr. Bill Mamawi of Greystone Advocates represented the Respondent. Counsel for both parties filed 10 written submissions citing authorities, which have been considered in this Ruling.

### **The Application**


The Application is supported by an Affidavit of Ndikooya Robinah, the 6 th Applicant on behalf of the other Applicants while the same is opposed by the Affidavit in Reply

- 15 of Kiyaga Geoffrey the Respondent. The grounds of the Application as contained in the Application and the supporting Affidavit in support may be summarized as follows: - That the Applicants filed Civil Suit No. 0073 of 2021 against the Respondent. They 20 also filed Miscellenous Application No. 0178 of 2021 against the Respondent seeking for temporary injunction against the Respondent and the same was granted with costs to the Applicants by the Registrar. The Respondent , being disatsified with the Order of injunction filed Miscellaneous Application Appeal No. 0001 of 2021 before the Judge and the same was allowed and the Respondents (now Applicants) 25 were ordered pay the costs of the Appeal. - The Applicants further aver that the Respondent then filed a Bill of costs vide **TAXATION CASE NO. 0036 OF 2023** which was heard exparte**.** It is further

averred by Applicants that they were never served with the Taxation Hearing Notice and yet the Respondent knew where they resided. That the Respondent purported to serve the Applicants by substitued servive which is not effective service.

The Applicants also aver that they were not aware of the taxation hearing and only learnt about it when they were served with a Notice to Show Cause why execution should not issue.

- 10 It is also the averment of the Applicants that whereas the Respondent was only awarded the costs of Miscellaneous Application Appeal No.0001 of 2021, the Bill of Costs which was filed and subsequently taxed included costs of Civil Suit No. 0073 of 2021 and Miscellaneous Application No. 0178 of 2021 for the temporary injunction which was unlawful and it resulted into unreasonably large sums of - 15 money and that the Application has been brought without undue delay.

On the other hand, the Respondent avers that there is no justifiable reason for granting leave to file a Taxation Reference out of time because the Applicants and their advocates were served with the Taxation Hearing Notice but they deliberately 20 refused to appear which prompted the Deputy Registrar to order substitued service which was done. The Respondent further avers that costs follow the event and since the Applicants' Civil Suit No. 0073 of 2021 was dismised in Miscellaneous Application Appeal No. 0001 of 2021 which awarded costs, it follows that costs of the suit and all the Applications arising therefrom are payable by the Applicants as 25 costs are awarded in the exercise of Court's discretion.

**Background to the Application**

The Applicants filed Civil Suit No. 0073 of 2021 against the Respondent and arising therefrom filed Miscellaneous Application No. 0178 of 2021 for a temporary

injunction and the same was granted by the Deputy Registrar with costs to the Applicants. The Respondent, being disatsified then filed Miscellaneous Application Appeal No. 0001 of 2021. The Appeal was allowed and costs of the Appeal were awarded to the Appellant (now Respondent). The Respondent filed the Bill of Costs 5 and taxation hearing was done exparte by the Deputy Registrar because the Applicants refused and or failed to attend Court. The Applicants state that they were not aware of the Taxation hearing because they were never served. The Applicants also state that the Bill of Costs that were taxed included Civil Suit No. 0073 of 2021 and Miscellaneous Application No. 0178 of 2021 and yet costs were only awarded 10 in Miscellaneous Application Appeal No.0001 of 2021. According to the Applicants,

- they could not file a Taxation Reference within the specified time because they were not aware of the Taxation proceedings and its outcome until when they were served with a Notice to Show Cause why Execution should not issue. The Applicants further claim that they were also never served with the taxed Bill of Costs and Certificate of - 15 Taxation immediately after the Taxation Ruling, hence this Application.

During the submissions, Counsel for the Applicants raised one issue as follows:

*Whether there are sufficient grounds to warrant extension of time within which the Applicants should file a Reference against the costs awarded by the taxing*

20 *officer in Taxation Case No. 0036 of 2023.*


#### **Resolution of the Issue**

Counsel for the Applicants submitted that there is sufficient cause why this Application should be allowed and raised two major reasons, namely, that the 25 Applicants were not duly served with the Taxation hearing Notice and were therefore not aware that the Bill of Costs were being taxed and that the Bill of Costs included matters in which costs were not awarded.

On the other hand, Counsel for the Respondent contended that the Applicants were duly served with the Taxation Hearing Notices through their advocate but he deliberately refused to attend Court. He further contended that in addition to service on the advocate, the Applicants were also personally served but they still refused to 5 acknowledge receipt. He also argued that upon refusal to attend the Court by the Applicants or their Counsel, the Deputy Registrar on her motion gave an order for substituted service which was also complied with by the Respondent but still neither the Applicants nor their lawyer appeared in Court, hence the exparte taxation hearing.

Counsel for the Respondent further argued that it is not true that costs were only awarded in the Appeal because costs follow events and since the Civil Suit was dismissed vide the Ruling in the Appeal, the costs of the Civil Suit and the Miscellaneous Applications arising therefrom followed.

#### **Court's Consideration**


Upon consideration of the evidence adduced in the Affidavit in Reply by the Respondent with its attachment, it is my finding that the Applicants were duly served with the Taxation Hearing Notice. The Respondent adduced evidence that service 20 was done on B. Edward & Co. Advocates who have at all material times to date been representing the Applicants in all matters. On some of the documents, it is indicated that documents were received under protest because there was a pending Appeal. After the taxation of costs, when the same advocate was served with a Notice to Show Cause why execution should not issue, he responded immediately.

It is my finding, that this was effective service because it was done on Counsel for the Applicants who did not decline service but stubbornly refused to attend the Court. Besides, there is evidence that the Applicants were also personally notified

of the taxation hearing by they still chose not to attend the Court. The Affidavit of Service which was attached on the Affidavit in Reply of the Respondent sworn by Mwebesa Julius, a Legal Clerk with Greystone Advocates reveals that he went to the LC1 Chairman of Kyebando Kanyanya Quarters Village where the Applicants reside 5 and he introduced himself and the reason for his visit. The Chairman called Mr. Kigwe Fred (4th Applicant) who came with Robinah Ndikooya (6th Applicant) and both of them were personally known to the process server because he had served them previously. The Chairman LC1 then handed to them a Hearing Notice which they refused to acknowledge receipt of but the Chairman acknowledged receipt of 10 the Taxation Hearing Notice.

A copy of the Taxation Hearing Notice was attached and I confirmed the existence of a stamp and signature and in the absence of any contrary evidence contesting it, I presume that they belong to the Chairman LC1 of Kyebando Kanyanya Quarters

15 Village. The Applicants who I strongly believe were served also chose not to appear in the Court for taxation of the Bill of Costs.


In addition to the above, the Court ordered for substituted service and the Respondent duly complied with the Order and even with that, the Applicants still 20 refused and or failed to attend the Court.

In light of the above, it is my finding that non appearance of the Applicants in the taxation proceedings was not due to non service or ineffective service of the Hearing Notice but a deliberate refusal. Therefore, this Application cannot be allowed on 25 those grounds.

However, the Applicants also seek to rely on another ground that the Bill of Costs that was taxed included matters where no costs were awarded. On this, I agree with

Counsel for the Applicants that costs were only awarded in the Miscellaneous Application Appeal No. 0001 of 2021 and not in any other matters from which the Appeal arose. Counsel for the Respondent has argued that costs follow the event and since the Appeal dismissed Civil Suit No. 0073 of 2021, it follows that even costs of

5 the Civil Suit had to be paid.

I respectfully disagree with that position because the the award of costs should have been express and not implied. The Orders in Miscellaneous Application Appeal No. 0001 of 2021were silent about costs in Civil Suit No. 0073 of 2021 and 10 Miscellaneous Application No. 0178 of 2021. The same could not be implied and I find that it was not proper to include them on the Bill of Costs for taxation. I have also looked at a copy of the Bill of Costs and on its title, it indicates Civil Suit No. 0073 of 2021 as a matter being taxed and it indicates nowhere the Appeal in which the costs were awarded. It creates an impression that costs were awarded in the Civil

15 Suit whereas not.


For the above reason, therefore, it is my finding that this anomaly has to be rectified. This is, therefore, sufficient cause to grant leave to the Applicants to file a Taxation Reference out of time so that the same is corrected. However, I will hasten to add 20 that if the Applicants attended the taxation hearing as notified, this anomaly would have been rectified then and this Application would have been avoided. For that reason, the Applicants shall bear the costs of this Application.

Consequently, therefore, this Application is allowed not because the Applicants were 25 not served with the Taxation Hearing Notice but because there was inclusion in the Bill of Costs matters in which no costs were awarded, on the following Orders:

1. Leave is granted to the Applicants to file a reference against the costs awarded in Taxation case No. 0036 of 2023;

- 2. The reference shall be filed within seven (7) days from the date of this Ruling and in any case not later than 4 th October 2024; and - 3. The Applicants shall bear the costs of this Application (Miscellaneous Application No. 0552 of 2024).

**Dated at Kampala this 26th day of September 2024.**

……………………………

Alice Komuhangi Khaukha

# 10 **JUDGE**

26/09/2024.