Kithende v Birungi & 3 Others (Taxation Appeal 17 of 2024) [2024] UGHC 1101 (10 December 2024)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT KASESE**

**HCT-25-LD-MA-0001-2024**

**(ARISING FROM TAXATION APPEAL NO. 17 OF 2024)**

**(ARISING FROM TAXATION APPLICATION NO. 034 OF 2022)**

**(ARISING FROM HCT-01-LD-CV-CS-0025-2020)**

**KITHENDE APPOLLINARIS KALYEBOGA=========================APPELLANT**

**VERSUS**

1. **JACK BIRUNGI** 2. **M/S THE REGISTERED TRUSTEES OF THE DIOCESE OF KASESE** 3. **THE BOARD OF GOVERNORS HOPE MODEL ST MARIA GORETI SECONDARY SCHOOL** 4. **THE MANAGEMENT COMMITTEE GLOBAL VINE NURSERY AND PRIMARY SCHOOL==========================================RESPONDENTS**

**BEFORE JUSTICE DAVID S. L. MAKUMBI**

**RULING**

**REPRESENTATION:**

Applicants represented by M/S Bagyenda and Co. Advocates

Respondent represented by M/S Kaahwa, Kafuuzi and Bwiruka Co. Advocates

**BACKGROUND:**

This application is brought by way of Notice of Motion under Section 33 of the Judicature Act and Sections 13, 64(e) and 98 of the Civil Procedure Act seeking orders that:

1. Court orders a stay of execution sought in Execution Application No. 28 of 2024 pending the hearing and final determination of Taxation Appeal No. 017 of 2024. 2. Costs for and incidental to this application be provided for.

The grounds for the application in brief as supported by the Affidavit of the Applicant Kithende Appollinaris Kalyeboga are that the Respondents filed Execution Application No. 28 of 2024 with a view to recovering taxed costs of UGX 53,411,500 awarded in Taxation Application No. 034 of 2022. The award was subsequently appealed vide Taxation Appeal No. 17 of 2024 which is pending determination. It is contended that the appeal has high chances of success as the award was granted without a pre-taxation meeting of the parties and the Applicant was never served with a hearing notice. Furthermore the High Court had earlier granted the Applicant a stay of execution vide Miscellaneous Application 109 of 2022 on condition to pay 50% of the taxed costs. The Respondents had served the Applicant with a Notice to Show Cause and yet the matter was still the subject of appeal vide Taxation Appeal No. 17 of 2024. The Applicant contends that if this application is not granted the appeal will be rendered nugatory and he will suffer irreparable damage. The Applicant further indicated that he was capable of paying security for costs.

In response to the application Joseph Muhumuza Kaahwa swore an Affidavit in Reply by which he contended that the Applicant had previously sought stay of execution of the orders in HCT-01-LD-CV-CS-0025-2020 from which taxed costs in this matter arise on the basis that he intended to appeal the order dismissing the suit. The said stay of execution was subsequently granted vide Miscellaneous Application No. 109 of 2022 on 27th February 2023 on condition that the Applicant deposited 50% of the taxed costs in the main suit. It was further contended that the Applicant never complied with the condition to deposit the security for costs and had never appealed the order in the main suit to date despite having been granted leave to appeal on 11th November 2022.

It was also contended that the Applicant’s filing of Tax Appeal No. 17 of 2024 was intended to obstruct the order of Court in Miscellaneous Application No. 109 of 2022 and that furthermore the appeal was filed out of time. Mr. Kaahwa also went on to contend that the application was res judicata, lacked merit and was frivolous and vexatious and to that extent ought to be dismissed.

By way of rejoinder the Applicant swore an affidavit by which he contended that the Affidavit in Reply sworn by Joseph Muhumuza Kaahwa was bad in law and ought to be struck out with costs as Mr. Kaahwa was the advocate in direct conduct of the main suit from which this application originated. The Applicant further contended in rejoinder that Miscellaneous Application No. 109 of 2022 is different from the present application in terms of the issues being raised. The Applicant went on to contend in rejoinder that the security for costs specified in Miscellaneous Application No. 109 of 2022 was based on a contentious taxation award which is now under appeal vide Taxation Appeal No. 17 of 2024.

**Applicants’ Submissions:**

Counsel for the Applicant submitted that the conditions for stay of execution as established in **Lawrence Musiitwa Kyazze v Eunice Businge – SCCA No. 18 of 1990** and **Theodore Ssekikubo & Others v Attorney General of Uganda & Others – Constitutional Application No. 3 of 2014** are that:

1. The Applicant must show that he lodged a Notice of Appeal 2. Substantial loss may result to the Applicant unless a stay of execution is granted 3. The application is made without inordinate delay 4. The Applicant has given security for the due performance of the decree or order as may ultimately be binding on him.

Counsel further submitted on the basis of the above that there was imminent threat of execution in light of the Respondents having filed Execution Application No. 28 of 2024. He went on to submit that the conditions for stay of execution had been met as there was a pending appeal vide Taxation Application No. 17 of 2024.

It was further submitted that the Applicant faced the risk of paying a sum of money that he was contesting and also faced the risk of committal to civil prison. In both cases Counsel contended that the loss would be irreparable.

Counsel also contended that the Application had been brought without undue delay as the Applicant was served with Notice to Show Cause on 5th April 2024 and the present application was filed 17 days later on 22nd April 2024.

With regard to security for costs Counsel contended that while it was discretionary the situation in the present application was peculiar as the taxation award granted for the main suit was being contested. He therefore argued that it would be best to await the outcome of the appeal but also that the Applicant had stated that he was capable of meeting the security for costs determined by Court.

**Respondent’s Submissions in Reply:**

Counsel for the Respondents submitted in reply that there were no grounds to support an application for stay of execution because the Applicant was simply reintroducing the subject of stay of execution which had already been granted vide Miscellaneous Application No. 109 of 2022. It was further contended that the Applicant was abusing court process and had not come to court with clean hands as he had previously failed to comply with the requirement for security for costs when he was allowed a stay of execution for the same matter for which he now sought a stay of execution. To that extent contended that the present application was res judicata contrary to Section 7 of the Civil Procedure Act.

Counsel further contended that the appeal in question had been filed out of time contrary to Section 62(1) of the Advocates Act and to that extent there was no likelihood of success. It was also contended that irreparable damage and loss had not been proved and furthermore the Applicant had not provided security for due performance of the order of Court in the main suit.

**Applicants’ submissions in Rejoinder:**

By way of rejoinder Counsel for the Applicant submitted objecting to Joseph Muhumuza Kaahwa swearing the Affidavit in Reply on the grounds that he had done so contrary to Regulation 9 of the Advocates (Professional Conduct) Regulations which prohibits an advocate from appearing in a matter in which he is directly involved.

Counsel also argued that under Section 64(e) of the Civil Procedure Act this Court had the discretionary power to make interlocutory orders to prevent the ends of justice from being defeated and could therefore order a stay of execution at any time based on judicial considerations. Counsel then went on to reiterate that there was imminent threat of execution of a taxation award which is under contention.

Counsel further contended that the present matter before the Court was not res judicata as the present matter as Civil Appeal No 289 of 2020 is different from Taxation Appeal No. 17 of 2024. Counsel further argued that the appeal could not be considered as delayed and out of time as there was a pending appeal for enlargement of time which time delay was a result of the failure to serve the Applicant with the Notice to Show Cause why Execution should not Issue.

**Respondents’ submissions in Surrejoinder:**

Counsel for the Respondents argued in surrejoinder that Joseph Kaahwa Muhumuza represented the Respondents in the main suit and Miscellaneous Application No. 34 of 2020 and had not appeared in representation in the instant application. To that extent it was argued that Joseph Kaahwa Muhumuza was competent to swear the Affidavit in Reply in line with Order 3 Rule 1 of the Civil Procedure Rules and in line with the decision in **Kyalisima Mildred and Another v Biryabarema Deo – High Court Revision Application No. 006 of 2018.** Counsel further argued that the matters for which Joseph Muhumza Kaahwa swore the affidavit were not contentious and were within his knowledge and to that extent the circumstances were distinguishable from the circumstances for which an advocate is excluded from appearing in a matter in which they are directly involved.

**ANALYSIS:**

I have studied the pleadings and submissions in this matter carefully. With regard to the discretionary remedy of stay of execution the requirements are that:

1. Substantial loss may result to the Applicant unless the order is made. 2. The Application has been made without unreasonable delay. 3. The Applicant has given security for due performance of the decree or order. 4. There must be proof of a pending appeal. 5. Serious and imminent threat of execution of the decree or order. 6. Refusal to grant the stay would inflict greater hardship than it would avoid.

(See **Lawrence Musiitwa Kyazze v Eunice Busingye – SCCA No. 18 of 1990; Dr. Ahmed M. Kisuule v Greenland Bank [In Liquidation] – SCCA No. 7 of 2010; Kyambogo University v Prof. Isaiah Omolo Ndiege – CACA No. 341 of 2013**; and **Attorney General of Republic of Uganda v East African Law Society & Another – EACA Application No. 1 of 2013**).

In considering this Application I noted from a preliminary perspective that there was a measure of irregularity apparent on the record. I noted that this Application arises from Taxation Appeal No. 17 of 2024 on which the Applicant relies to argue that he has a pending case. When I examined Taxation Appeal record I noted that it had not been endorsed by the Deputy Registrar and had therefore not been served on the Respondents. The Appeal in question was initially recorded the High Court Circuit in Fort Portal as Taxation Appeal No. 17 of 2024. However, upon the creation of the High Court Circuit in Kasese the Appeal in question was registered as No. 20 of 2024.

In addition to this Application the Applicant also filed Miscellaneous Application No. 4 of 2024 seeking enlargement of time to file the taxation appeal. Both Applications are said to have arisen from what is now registered as Taxation Appeal No. 20 of 2024. This obviously raises the question that if the Applicant is seeking enlargement of time to file the same Taxation Appeal that has essentially been filed, is it still open to the Applicant to claim that he has a pending appeal?

In Miscellaneous Application No. 4 of 2024, the Applicant made the following prayers:

1. The time for filing an appeal against the Taxation award in Taxation Application No. 34 of 2022 be enlarged. 2. The Chamber Summons for Taxation Appeal No. 17 of 2024 already filed in this Honourable Court be validated.

With due respect to the Applicant, the prayers above are plainly contradictory and unsustainable. A litigant cannot seek enlargement of time for filing an application and in the same breath also suggest that the application has already been filed. It is either filed and therefore filed out of time or not yet filed pending enlargement of time for filing. It is therefore my considered view that Taxation Appeal No. 20 of 2024 cannot be considered a pending appeal as it has not even been endorsed by the Deputy Registrar and has not been served upon the Respondents.

Order 49 Rule 2 of the Civil Procedure Rules provides that all orders, notices and documents required by the Act to be given to or served on any person shall be served in the manner provided for the service of summons. As much as the Chamber Summons procedure by which the Taxation Appeal is initiated arises ultimately from the Advocates Act and not the Civil Procedure Act, I still consider it in practical terms to be a form of official summons by which the opposite party is notified about the taxation appeal and the intended date on which the appeal is going to be heard. It is therefore governed by the same standards stipulated for summons under Order 5 of the Civil Procedure Rules. Furthermore, in as much as the primary legal guide for all civil actions in the Courts of Judicature is the Civil Procedure Act, I find that the provisions of the said Act and the Rules thereunder apply to Taxation Appeals being matters founded in civil action despite the right of appeal arising from the Advocates Act.

Order 5 Rule 1(5) of the Civil Procedure Rules require that every summons shall be signed by the judge or such officer as he or she appoints, and shall be sealed with the seal of court.

On the basis of the above, I therefore deem it that Taxation Appeal No. 17 of 2024 (now 20 of 2024) is not legally recognized as a Taxation Appeal as the filing process was never completed. The Chamber Summons on which the appeal is premised is not officially endorsed by Court and cannot therefore be considered to be a pending appeal.

Furthermore Counsel for the Respondents had argued that this application for stay of execution was res judicata as the Applicant had been previously granted a stay of execution vide Miscellaneous Application No. 109 of 2022. However, in this regard I do agree with Counsel for the Applicant that this Application cannot be res judicata as 109 of 2022 was founded on a different appeal being Civil Appeal No 289 of 2020. It was therefore still open to the Applicant to file this present appeal as no such application had previously been filed arising from the contentious taxation appeal.

Ordinarily the fact that there is no pending appeal should resolve the question of whether to grant a stay of execution in favour of the Applicants. However, as much as I do find that this present application for stay of execution is partially misconceived as it is founded on a non-existent Taxation Appeal, it does in my view remain valid to the extent that ultimately it arises from Taxation Application No 34 of 2022 which is the main bone of contention.

Furthermore, I also find that the Applicant does meet other grounds for granting stay of execution because there is an imminent threat of execution as evidenced by the Notice to Show Cause. There is evidence that the application was made without undue delay and the Applicant has demonstrated willingness to pay security for costs. For reasons that will go on to explain, I am constrained to allow a stay of execution in this matter.

Additionally, and by virtue of Section 37 of the Judicature Act and in the interests of preventing a multiplicity of proceedings I find it necessary to briefly address the merits of the prayers regarding enlargement of time for filing the Taxation Appeal in Miscellaneous Application No. 4 of 2024 as it has a direct bearing on the present application. In the said application the prayer seeking validation of the Taxation Appeal is automatically misconceived. A litigant cannot seek enlargement of time for filing a matter that they already consider filed. However, as already explained the Taxation Appeal in question is a nullity and this Court cannot validate a nullity.

However as concerns the first prayer for enlargement of time to file the Taxation Appeal, I find that this remedy is still open to the Applicant and as much as he erroneously founded it on a nullity, I consider that ultimately the proceedings for enlargement of time are founded on the contention about Taxation Application No. 34 of 2022.

I have carefully considered the grounds upon which the Applicant is contesting Taxation Application No. 34 of 2022 and I find that on the face of it there are substantial questions that warrant this matter proceeding on appeal. The Applicant contended in MA No. 4 of 2024 that he was never served with a taxation hearing notice and had only discovered about the award on 5th April 2024 when Notice to Show Cause Why Execution Should not Issue was served. However, Counsel for the Respondent contended in submissions that service had been effected as evidenced by the attachments to the Affidavit in Reply made in MA No. 4 of 2024. I did not observe any such affidavit in reply on the record.

Furthermore, having also had the benefit of examination of the award in Taxation Application No. 34 of 2022, I consider that if the Applicant is denied the opportunity to appeal the award there is a very real risk that substantive justice will not be achieved.

Therefore in the interests of justice and finality and in accordance with Section 98 of the Civil Procedure Act, it is prudent that this Court make the following joint orders with regard to Taxation Appeal No. 20 of 2024 and Miscellaneous Applications 1 and 4 of 2024 arising therefrom:

1. Taxation Appeal No. 20 of 2024 (formerly 17 of 2024) is hereby declared a nullity and is struck off the record with no order as to costs. 2. Miscellaneous Application No. 1 of 2024 is hereby allowed and the Applicant is hereby granted a stay of execution of the Taxation Award arising from Taxation Application No. 34 of 2022 pending disposal of the intended Taxation Appeal arising therefrom. 3. Miscellaneous Application No. 4 of 2024 is partially allowed in accordance with Section 96 of the Civil Procedure Act to the extent that the Applicant is granted extension of time to file the intended Taxation Appeal arising from Taxation Application No. 34 of 2022. 4. The Applicant is hereby granted one week from the date of this ruling to file and serve the Taxation Appeal arising from Taxation Application No. 34 of 2022. In the event that the Applicant should fail to act within the time specified, then the Respondents will be entitled to execution of the Taxation Award without further notice. 5. The Applicant shall deposit in Court a sum of UGX 20,000,000 (Twenty Million Shillings only) as security for costs for the intended appeal. 6. Costs in Miscellaneous Applications No. 1 and 4 of 2024 arising from Taxation Application No. 34 of 2022 shall abide in the cause.

I so order.

Ruling delivered this 10th day of December 2024.

**David S. L. Makumbi**

**JUDGE**