Mugisha v Aston Kajara and Another (Civil Appeal 2 of 2024) [2024] UGHC 1045 (21 October 2024)

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL** 3 **CIVIL APPEAL NO. 02 OF 2024 (ARISING FROM TXN CAUSE NO. 20 OF 2018) (ORIGINATING FROM ELECTION PETITION NO. 004 OF 2016)** 6 **MUGISHA VINCENT :::::::::::::::::::::::::::::::::::::::::::::: APPLICANT VERSUS**

## **1. ASTON PETERSON KAJARA**

# 9 **2. THE ELECTORAL COMMISSION::::::::::::::::::: RESPONDENT BEFORE: HON. JUSTICE VINCENT WAGONA RULING**

## 12 **Introduction:**

The applicant seeks to set aside the taxing decision of HW Matenga Dawa Francis (Deputy Registrar) in Taxation Cause No. 20 of 2018.

## 15 **Grounds of the Application:**

The grounds of the application are set out in the applicant's affidavit and in brief are as follows:

- 18 1. The applicant was the petitioner in Election Petition No. 004 of 2016 against the Respondents which was dismissed with costs to the respondents on 26th June 2016. - 2. The 1st 21 respondent filed a bill of costs before the Registrar under Taxation Cause No. 26 of 2016 and no pre-trial hearing notice was undertaken. The bill was thus considered and taxed without pre-trial taxation hearing /


meeting between the parties and the advocates which is a mandatory requirement before taxation is conducted.

- 3 3. Under item 1 of the bill, the respondents sought to recover instruction fees to defend Election Petition No. 004 of 2016 when at the time the said instructions were received the lawyers had not renewed their practicing 6 certificates as required by law, but went ahead to endorse the pleadings and participated in the proceedings in Election Petition No. 004 of 2016. - 4. The said lawyers Mr. Businge A Victor of M/s Ngaruye Ruhindi Spencer & Co. Advocates for the 1st 9 respondent renewed his practicing certificate on 17th May 2016 while Christine Ntambirweki and Kandeebe of M/s Ntambirweki, Kandeebe & Co. Advocates for the 2nd respondent renewed on 19 12 th May 2016 way past the date required under the law. - 5. The Respondents' counsels are not entitled to costs since instructions were received before renewing their practicing certificates. - 15 6. Justice Gashirabake Christopher JA (single justice) had held that the respondents' lawyers were not entitled to costs for lack of valid practicing certificates and could only benefit on appeal. This fact was not brought to 18 the attention of the Registrar; if it was, he would have taken a different decision. - 7. The bill was taxed and allowed at shs 41,000,000/= which is excessive 21 and the award of shs 20,000,000/= as instructions of counsel was granted in error and is an illegality since the counsels had no valid practicing certificates at the time the instructions were received. - 24 8. There was double taxation of some items and it was in the interests of justice to allow the appeal and set aside award by the taxing officer.


#### **Reply of the Respondents:**

- 3 The application was opposed by Joy Ntambirweki, an advocate under Ntambirweki, Kandeebe & Co. Advocates who deposed as follows: - 1. The application is an abuse of court process and ought to be rejected. The 6 bill and taxation hearing notice was served upon Kesiime & Co. Advocates, the attorneys of the applicant informing them of the taxation scheduled for 18th November 2020 and the Taxation hearing notice was 9 received; however no appearance was made and there was return of service on court record. - 2. The applicant's lawyer was also informed of the bill that was before the 12 taxing master who had directed that written submissions be filed over the said bill by a letter dated 20/11/2020 and the filing was not to exceed 30th November 2020. No written submissions were filed after being informed 15 of the timelines. The authorities referred to by the applicant were never brought to the attention of the registrar. - 3. Court further ordered that a fresh hearing notice be taken out and served for 12 18 th March 2024 which was done and again the applicant's counsel never appeared for taxation. When Sophie Ageta who effected service went to the chambers of the applicant's attorneys in Kyengera, he found 21 when he had shifted from the known address. - 4. The verification letter about practicing certificates from the Chief Registrar dated 25th June 2016 had nothing to do with counsel Kandeebe 24 who was duly instructed by the Electoral Commission.


5. The law firm for the 2nd respondent's lawyer had been handling the petition since 2016 and the award of shs 30,000,000/= as instruction fees 3 is fair and reasonable as instruction fees. It was fair that the application/appeal is rejected with costs to the respondents.

#### **Rejoinder of the Applicant:**

In rejoinder Mr. Mugisha the applicant asserted further thus:

- 1. The service of the bill and taxation hearing notices was not done to him 9 personally or to his office. The law firm has offices in Kyengera, Mubende and Kyenjojo and all these branches are fully operational. No letter was served to his counsel as alleged by the 1st respondent. - 12 2. The illegality raised if brought to the attention of court it stops every reasoning and focuses on the decision made. A court of law cannot sanction an illegality once brought to its attention. That the respondent's 15 lawyer had no practicing certificates and this fact is not denied. - 3. Since Joy Ntambirweki who swore the affidavit in reply did not appear on record during the taxation, she did not know what happened and thus 18 could not depone an affidavit to that effect and did not attach her practicing certificate to confirm she was an advocate. - 4. The applicant was aware of the grace period under the law of the month 21 of January and February. Counsels Christine Ntambirweki, Kandeebe and Businge Victor renewed their practicing certificates after the months of January and February and as such they are not entitled to costs. - 24 5. There was no pre-taxation meeting as required by law between the parties and the advocates and this was not complied with.


- 6. In the ruling in Election Petition No. 0024 of 2016 and 004 of 2016, court issued a certificate of two counsels yet Mr. Ngaruye Ruhindi, Kadeebe 3 and Businge Victor filed different bills of costs which is contrary to the judgment of court. - 7. The award of shs 30,000,000/= as instructions fees is unreasonable since 6 election petitions are public matters and worse the respondent's counsel had no practicing certificates thus were not entitled to instruction fees.

#### **Representation and Hearing:**

*Mr. Dusabe Samuel* of M/s Kesiime & Co, Advocates appeared for the appellant/applicant while *Mr. Kandeebe* appeared for the 2nd respondent. Both 12 counsel filed written submissions that have been considered.

#### **Issues:**

**(1)Whether the application is defective for having been commenced by**

15 **Notice of motion and not Chamber Summons.**

**(2)Whether this appeal is maintainable against the 1st respondent.**

- **(3)Whether there was effective service of the bill of costs and taxation** - 18 **costs against the applicant and whether the failure to conduct a pretaxation meeting renders the award in issue a nullity.**

**(4)Whether the respondent's counsel were entitled to instructions fees.**

21 **(5)Whether the instructions fees awarded to the respondents is in compliance with the law.**

**(6)Whether the other items of the bill were taxed in accordance with the** 24 **remuneration rules and principles of taxation.**


**Issue No. 1: Whether the application is defective for having been** 3 **commenced by Notice of motion and not Chamber Summons. Submissions for the 2nd Respondent:**

- 6 The application was wrongly brought by way of a Notice of Motion. Regulation 3 of the Advocates (Taxation of Costs) (Appeals and References) Regulations is to the effect an appeal against the decision of the taxing officer must be by - 9 Chamber Summons supported by an affidavit stating the areas where the taxing master is alleged to have erred. The current appeal is filed by way of Notice of Motion contrary to the Advocates regulations. The applicant did not respond to - 12 this submission.

## **Consideration by Court:**

- 15 Regulation 3 (1) of the Advocates (Taxation of Costs) (Appeals and References) Regulations S.1 267-5 provides that: *Every Appeal shall be by way of Summons in Chambers supported by affidavit which shall set forth in* - 18 *paragraphs numbered consecutively particulars of the matters in regard to which the taxing officer whose decision or order is subject of appeal is alleged to have erred. [Added emphasis]* - 21

The import and significance of use of the verb '**shall'** must be construed in accordance with the rules of interpretation. In *Sitenda Sebalu v Sam K. Njuba*

24 *and Electoral Commission, Supreme Court Election Appeal No. 26 of 2007*, Court guided that construction of the verb '**shall'** in statutory interpretation should not cause injustice, absurdity or inconsistence with the Constitution. That


there is no rule of the thumb or a universal rule of interpretation, for determining if in a given statutory provision the word "**shall**" is used in the 3 mandatory or directory sense. The guiding principle therefore is the consequences of none compliance and the jurisdiction of court to grant the reliefs claimed. In *Saggu versus Road Master Cycles (U) Ltd [2002] 1 EA 258*, 6 court observed that: *"where an application omits to cite any law at all or cites the wrong law but the jurisdiction to grant the order exists, the irregularity or omission can be ignored and the correct law inserted."*

I take the view that, in appropriate cases, where the **format** of pleadings adopted by a party may not conform to the procedural requirements of the law, 12 but the **substance** of the pleadings and the cited law support the reliefs sought, then the omission or error can be treated as an irregularity or technicality curable under Article 126 (2) (e) of the 1995 Constitution that requires that 15 substantive justice shall be administered without undue regard to technicalities. In such circumstances, the omission or error does not take away the jurisdiction of court to grant the reliefs sought. In such circumstances, the spirit of Article 18 126 (2) (e) of the Constitution, courts should emphasize substance over form, unless it is demonstrated that the nature of the reliefs sought by a party cannot be granted on the basis of the pleadings filed in court.

The application herein was wrongly brought by way of Notice of Motion instead of Chamber summons. The application however correctly stated that the appeal 24 was brought under section 62 of the Advocates Act and the Advocates (Taxation of Costs) (Appeals and Reference) Regulations S.1. 267-5. The reliefs claimed by the applicant can be granted by this court. I thus find in the circumstances of

 this case, that the error of proceeding by Notice of Motion instead of Chamber Summons, is curable under Article 126 (2) (e) and I accordingly overrule the 3 objection in this regard.

**Issue No. 2: Whether this appeal is maintainable against the 1st** 6 **Respondent.**

### **Submissions for the 1st Respondent:**

- 9 Mr. Kandeebe submitted that the award sought to be challenged by the applicant was in respect of a bill of costs filed by the 2nd and 3rd Respondents. The 1 stRespondent is not a party to the bill of costs from which the award challenged - 12 by the applicant arose.

## **Consideration by Court:**

I agree with the submissions Mr. Kandeebe that since the 1st Respondent was not a party to the award challenged by the applicant, he could not be a party to 18 the appeal. I have reviewed the bill in issue and the award where the appeal in issue arises. The award was in respect of the bill arising from Election Petition No. 004 of 2016 filed for the 2ndRespondent (Mulimira Barbra, Returning Officer, Kyenjojo District) and the 3rd 21 Respondent (Electoral Commission). The ruling appealed against was in respect of the said bill where the 1st Respondent in the current appeal was not a party to the same. I thus find that the 1st

24 Respondent was irregularly included as a party to the current appeal. I thus strike him out as a party.


**Issue No. 3: Whether there was effective service of the bill of costs and taxation costs against the applicant and whether the failure to conduct a** 3 **pre-taxation meeting renders the award in issue a nullity.**

# **Submissions of the Applicant:**

In his affidavit in support of the motion, Mr. Mugisha indicated that he was never served with a bill of costs and did not participate in the process. Further, 9 that since he did not participate, there was no pre-taxation meeting between the parties and the advocates which is a mandatory requirement under the law rendering the award a nullity.

# **Submissions of the 2nd Respondent:**

In response to these allegations, the 2nd 15 Respondent through the affidavit of Joy Ntambirweki deposed that the applicant was served on different occasions with taxation notices and he never appeared in court. Further that even when they 18 secured a letter requiring him to file written submission in opposition to the bill, he never responded. That as such the applicant chose not to participate in the

proceedings and court was right to consider the bill exparte.

#### **Consideration by Court:**

24 My review of the file demonstrates the practical efforts made to serve the applicant with the bill of costs and several taxation hearing notices. The first service was for a taxation hearing notice for 18th November 2020. The said notice was served upon the applicant's advocates on 3 27 rd November and the same was stamped by Kesiime & Co. Advocates, the law firm representing the


applicant. There is an affidavit of service on record by Ageta Sophie Rodah, a clerk under M/s Ntambirweki, Kandeebe & Co. Advocates and it is indicated

that service was done on 3 3 rd November 2020 and the notice was duly stamped by the applicant's lawyers. It appears the applicant did not appear in court on 18th November 2020 and court ordered that the applicant's counsel files written 6 submissions in opposition to the bill of costs. The said letter was received by the applicant's lawyer on 7th December 2020. In the said letter, it was communicated to the applicant's lawyer to file the submissions before 30th November and serve the 2nd 9 Respondent's lawyers and the ruling was schedule for 11th December 2020 at 11:00am. It is apparent from the record that after

service, of the letter, the applicant's lawyers did not file any submissions as it

12 was duly communicated to them.

The matter was later was fixed for 6th March 2024. Ageta Sophie Rodah who 15 served indicated that he went to serve the applicant's lawyer and found when they had shifted from the known offices. That he knew the place before since he had served them with taxation hearing notices and the schedules. The matter was further adjourned to 4 18 th April 2024. The said notice was served upon the applicant in person while at court per the affidavit of service of Balinda Lucky Ivan, a process server working with M/s Rwabwogo & Co. Advocates. The 21 applicant indicated on the notice that he had another matter in Ntungamo Chief Magistrate's Court and proposed that a new date be got.

24 I am satisfied based on the available evidence that the applicant was properly and effectively served with court process and decided not to act as required.


Subsequently, he was served with several taxation notices which he ignored. I am therefore satisfied that there was effective service of the taxation hearing

- 3 notices and the bill of costs upon the applicant. In addition to the above, whereas it is a procedural requirement to hold a pretaxation taxation meeting, where the same is frustrated by one of the parties to - 6 the bill, court has the discretion to proceed and tax the bill without such pretaxation meeting. (See: *Kwesiga James v Mugisha Robert HCtMA No. 25 and 65 of 2019& Rule 54 of the Advocates (Remuneration and Taxation Costs)* - 9 *Regulations*). In the present motion, the applicant was duly served with the bill and decided to avoid the process. I thus find that the taxing master was right to consider the bill without compliance with the pre-taxation meeting. - 12

**Issue No. 4: Whether the Respondent's Counsel were entitled to instructions fees.**

### **Submissions for the Applicant:**

- 18 The respondents' counsels are not entitled to costs because at the time they received instructions they had no valid practicing certificates. Sections 11 and 15 of the Advocates Act Cap. 295 are to the effect that an advocates practicing certificate must last for one year ending on 31 21 st December of the year from the time of issue. An advocate who practices after expiry of the certificate commits an offense under section 15 of the Advocates Act. The consequence of such non 24 compliance is well captured under section 69 of the Advocates Act Cap. 295 which is to the effect that such an advocate is not entitled to costs. In *Prof. Seyd* - *Huq v Islamic University in Uganda, Civil Appeal No. 47 of 1995 and Erlen*


*Sin the case of Holgate v Slight 21 (QB) 74* court emphasized that an advocate who practices without a practicing certificate is not entitled to costs.

- The award of instruction fees to the 1st 3 Respondent by the taxing master was an illegality which cannot be allowed to stand in the face of the position in *Makula International Ltd v His Eminence Cardinal Nsubuga Wamala & Anor 1982* - *(HCB).* Court should find that the 2nd 6 respondent's counsel was not entitled to costs and to set aside the award to that effect.

### 9 **Submissions for the Respondents:**

This issue was raised and decided upon by a competent court thus the applicant 12 is stopped from raising the same herein. This issue was raised by the applicant to avoid payment of costs adjudged against him.

### 15 **Consideration by Court:**

Mr. Kandeebe submitted that this issue was already decided upon by court. I 18 have read the decision of Justice Gashirabake JA in Taxation Reference No. 313 of 2019, Mugisha Vincent versus Aston Peterson Kajara & Anor, and it has no connection with the issue raised herein. The Court of Appeal restricted itself to 21 the costs granted against the applicant in the Court of Appeal and not in this court. Further, there is no Court which has pronounced itself on the legality of instructions awarded to the 2nd Respondent in respect of the costs awarded to 24 them by the taxing officer. I will thus proceed and consider it.

The life span of a practicing certificate issued to advocate expires by 31st 27 December of the year of issue as provided for under section 16 of the Advocates


Act Cap. 295. Section 20 of the Advocates Act Cap. 295 makes it an offense for an advocate who practices without a valid practicing certificate for the year.

- 3 Section 75 of the same Act prohibits recovery of costs for any works done which constitute an offense under the Advocates Act. Therefore since the practice without a practicing certificate is illegal and criminal, the natural 6 consequence thereof would be that such an advocate cannot be permitted to derive any benefit for what is illegal or criminal in nature. This position was emphasized by Karokora JSC (as he then was) in *Prof. Syed Huq v The Islamic* 9 *University in Uganda, SCCA No. 47 of 1995* thus;

*"Therefore all in all considering all the authorities discussed above, I think the position of the law seems to be;*

- 12 *1. An advocate is not entitled to practice law without a valid practicing certificate.* - *2. An advocate whose practicing certificate has expired may practice as* 15 *an advocate during the period of grace, i.e during the month of January and February, but if he does so, he will not recover his costs through court process for any work done during that period; but the* 18 *document he prepares, signs and files during the period or grace are valid.* - *3. An advocate who practices after the period of grace without a valid* 21 *practicing certificate commits an offense and is liable to prosecution under section 14(1) of the Advocates Act…"*


The complaint of the applicant is that the respondents sought to recover instruction fees to defend Election Petition No. 004 of 2016 when at the time the 3 said instructions were received the lawyers had not renewed their practicing certificates as required by law, but went ahead to endorse the pleadings and participated in the proceedings in Election Petition No. 004 of 2016.

The law envisages that the instructions fees is remuneration that an advocate is entitled to receive to prosecute the case to its logical conclusion and not to only 9 endorse and file pleadings or perform particular acts. It covers all successive works undertaken by an advocate from the time of receiving instructions, to have the case prosecuted to its logical conclusion. On the other hand, the law 12 provides against recovering costs through court process for any work done by an advocate during the period when the advocate had no valid practicing certificate.

In the present appeal, the applicant attached annexure A which is a letter from the Chief Registrar of Courts of Judicature where it is indicated that Christine T. R Ntambirweki an advocate who participated in the matter (for the 2nd and 3rd 18 respondent in the Election Petition) secured her practicing certificate on 19th May 2016. That by the time the response to the petition was filed, the said 21 advocate had not practicing certificate and thus no entitled to instruction fees. Mr. Kandeebe for the 2nd Respondent submitted that the issue raised by the applicant does not concern him since for him he was instructed by the 2nd 24 Respondent herein before. In rejoinder, the applicant indicated under paragraph 11 of the affidavit in rejoinder that Mr. Kandeebe for the 2nd respondent herein

 did not attach his practicing certificate to confirm whether he had a practicing certificate at the time the instructions in the election petition were given.

The applicant shouldered the burden to prove that indeed Mr. Kandeebe had no valid practicing certificate at the time instructions to handle Election Petition 6 No. 04 of 2016 were received and the pleadings filed. The applicant failed to demonstrate to court that indeed Mr. Kandeebe had no practicing certificate at

the time a response to Election Petition No. 04 of 2016 was filed. As such, the

- 9 complaint raised by the applicant herein does not extend to Mr. Kandeebe for the 2nd respondent. Kandeebe handled the petition jointly with Christine Ntambirweki who later secured a practicing certificate. The applicant failed to - 12 specify the actual work done by or role played by Christine Ntambirweki or any other advocate in Election Petition No. 004 of 2016 during the period when they had no valid practicing certificates. I therefore find no merit in this point of law - 15 and thus overrule the same.

## **Issue No. 5: Whether the instructions fees awarded to the Respondents is in** 18 **compliance with the law?**

## **Submissions for the Applicant:**

The sum of shs30,000,000/= awarded as instruction fees was excessive, unconscionable and oppressive and based on wrong principles of taxation. Item 6 of the 6th 24 schedule provides that instruction fees to defend should not be less than 5,000,000/= for petitions under the Local Government Act and 10,000,000/= under the Parliamentary Elections Act. It is settled law that an


appellate court does not interfere with the award of the taxing officer unless it is shown that the amount is too low or too high or contrary to the principles of

- 3 taxation. *(See: Bank of Uganda v Banco Arable Espanol SC. Civil Application No. 23 of 2019)*. The amount awarded is high and excessive given the fact that the matter in issue was an election petition which is a public interest issue. - 6

## **Submissions for the Respondents:**

9 The sum of shs 30,000,000/= awarded as costs is fair and just given the nature of dispute from where the petition arises.

## 12 **Consideration by Court:**

**Section 68 (1) of the Advocates Act Cap. 295** provides that: *"Any person* 15 *affected by an order or decision of a taxing officer made under this Part of this Act or any regulations made under this Part of this Act may appeal within thirty days to a judge of the High Court who on that appeal may make any* 18 *order that the taxing officer might have made."* This section allows the trial judge to review an award and where appropriate make an award or decision which would have been otherwise made by the taxing master when considering

21 the bill.

A judge should however not interfere with the assessment of the taxing officer 24 save in exceptional cases. Questions which are solely of quantum of costs are matters with which the taxing officer is particularly fitted to deal, and in which he has more experience than the judge *(Bank of Uganda v.* 27 *BancoArabeEspanol, S. C. Civil Application No. 23 of 1999 and Thomas*


*James Arthur v. Nyeri Electricity Undertaking, [1961] EA 492).* An exceptional case is where it is shown expressly or by inference that in assessing

- 3 and arriving at the quantum of the fee allowed, the taxing officer exercised, or applied a wrong principle. Application of a wrong principle is capable of being inferred from an award of an amount which is manifestly excessive or - 6 manifestly low. *(See Gulu Institute of Health Science versus Bwomu Gerald HCCA No. 163 of 2016).* - 9 Regarding the legal parameters of the taxing master while considering a bill of costs, the Hon. Lady Justice Immaculate Busingye Byaruhanga in *Taxation Appeal No. 003 of 2013, The Administrators of the Estate of the Late Barbara* - 12 *Lakeli Vs. JWB Kiwanuka & 3 others* stated as follows: **"***In this particular case the law granting discretionary power to the taxing master to award costs taking into consideration "all other relevant circumstances" was repealed. It* - 15 *means in my humble view that the taxing master is restricted now only to apply schedule six of the current regulations and award costs only as set out under those regulations. Nothing more nothing less….. In my view a taxing* - 18 *master cannot award costs less than what is stipulated under the rules. What has to be ascertained therefore is the fee chargeable in contentious matters in High Court under the current rules."* Thus, the taxing master must conduct the 21 taxation of a bill of costs in strict compliance with the Advocates (Remuneration and Taxation of Costs) Regulations as amended in 2018. - 24 Regarding how to deal with instruction fees, case law provides guidance. In the case of **Makumbi and another v Sole Electrics (U) Ltd [1990–1994] 1 EA 306,** Justice Manyindo DCJ, JSC as he then was and at pages 310 – 311 stated


as follows: *"The principles governing taxation of costs by a Taxing Master are well settled. First, the instruction fee should cover the advocates' work,*

- 3 *including taking instructions as well as other work necessary for presenting the case for trial or appeal, as the case may be. Second, there is no legal requirement for awarding the Appellant a higher brief fee than the* - 6 *Respondent, but it would be proper to award the Appellant's Counsel a slightly higher fee since he or she has the responsibility to advise his or her client to challenge the decision. Third, there is no mathematical or magic* - 9 *formula to be used by the Taxing Master to arrive at a precise figure. Each case has to be decided on its own merit and circumstances. For example, a lengthy or complicated case involving lengthy preparations and research will* - 12 *attract high fees. In a fourth, variable decree, the amount of the subject matter involved may have a bearing. Fifth, the Taxing Master has discretion in the matter of taxation but he must exercise the discretion judicially and not* - 15 *whimsically. Sixth, while a successful litigant should be fairly reimbursed the costs he has incurred, the Taxing Master owes it to the public to ensure that costs do not rise above a reasonable level so as to deny the poor access to* - 18 *Court. However, the level of remuneration must be such as to attract recruits to the profession. Seventh, so far as practicable there should be consistency in the awards made.* - 21

Specific to this case, Rule 6 of the sixth schedule earlier referred to states thus: *"For instructions to present or oppose an election petition, the fee shall be as* 24 *the taxing officer considers reasonable, taking into consideration the nature, importance, complexity and novelty of the petition, the place where and the*


*circumstances in which work or a part of it was done, the time expended, the public interest and all other relevant circumstances, but the fees shall not be*

- 3 *less than 5,000,000 shillings for petitions under the Local Governments Act and shall not be less than 10,000,000 shillings for petitions under the Parliamentary Elections Act"* - 6

It is clear from the said rule, that the least amount that a taxing officer should award as instruction fees is Ugx 10,000,000 for election petitions under the 9 Parliamentary Elections Act like the one at hand. The Rule further empowers the taxing master to award any amount above 5,000,000/= taking into account the nature, importance, complexity and novelty of the petition, the place where 12 and the circumstances in which work or a part of it was done, the time expended, the public interest and all other relevant circumstances*.* The taxing master has the discretion to set an amount that appears reasonable taking into 15 account those considerations.

It should be noted that election petitions are not routine matters handled on a 18 day to day; they are technical matters that are individualized to the specific case, requiring a lot of research and must be heard and disposed of in a time bound manner. They are also matters of public importance where the public has vested 21 interests therein. Therefore, in assessing the amount payable as instruction fees,

- the taxing master should take into account these considerations. In my view to ensure consistency in the amounts awarded for matters of this nature, the taxing - 24 master may make reference to the range of awards that the judges or the court of


appeal have been awarding to parties with the same claim so as to ensure consistency, while giving allowance for other distinguishing factors.

In *Obiga Kania Vs. Wadri Kassiano Ezati and Anor C. A Civil Reference No. 32 of 2004* the court of appeal upheld a sum of Ugx 8,000,000/= as instructions

- 6 in that election petition. In *Lanyero Sarah Ocheng & Anor Vs. Lanyero Molly, Court of Appeal Ref No, 225 of 2013*, the court of appeal reduced instruction fees of the lead counsel from 50,000,000/= to 15,000,000/= and the assisting - 9 counsel from 35,000,000/= to 8,000,000/=. The Hon. Lady Justice Walayo in *Dr. Isamat Abraham Vs. Dr. Epetait Francis, Misc. Application No. 43 of 2015* reduced instruction fees from 70,000,000/= to 30,000,000/= as being - 12 appropriate. Lady Justice Mulyagonja in *Jinja High Court Misc. Appeals No. 1 of 2009 and 2 of 2010 , Electoral Commission & Anor Vs. Hon Abdu Katuntu* reduced the award of instructions from 60,000,000/= to 25,000,000/-. In - 15 *Taxation Reference No. 7 of 2012, Brenda Nabukenya Vs. Rebecca Nalwanga Balwana***,** the Court of Appeal reduced instructions fees awarded from 120,000,000/= to 15,000,000/=. - 18

In this case, I find the award of shs 30,000,000/= high and excessive and I set it aside. I instead award a sum of *20,000,000/=* which I find appropriate.

**Issue No. 6: Whether the other items of the bill were taxed in accordance with the remuneration rules and principles of taxation.**

Learned counsel for the applicant in his submissions challenged the awards in items 5, 6, 11, 12, 15, 16, 17, 18, 40, 56, 57, 58, 62, 63 and 64 arguing that they


did not comply with the remuneration rules. I have reviewed the said items and found them to be in line with the remuneration rules. I uphold them. This issue

3 is determined in the negative.

This appeal thus partially succeeds with the following orders:

- 6 **1. The award of shs 30,000,000/= (Thirty Million Shillings) as instructions fees is set aside and in lieu thereof the court awards a sum of shs 20,000,000/=.** - 9 **2. The final award of shs 40, 110,000/= is set aside and in lieu thereof, I award a sum of shs 30,110,000/=.** - **3. Each party shall bear its own costs.** - 12 It is so ordered


Vincent Wagona

15 **High Court Judge FORTPORTAL DATE: 21/10/2024**