Ssekabaziga v Matovu & 5 Others (Miscellaneous Application 230 of 2024) [2025] UGHC 155 (17 March 2025)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KIBOGA MISCELLANEOUS APPLICATION NO. 0230 OF 2024. (ARISING OUT OF TAXATION APPLICATION NO. 004 OF 2024) (ARISING OUT OF CIVIL APPEAL NO. 043 OF 2023) (ARISING FROM MISC. APPLICATION NO. 0053 OF 2022) (Arising from Civil Suit No. 0038 OF 2021 at Chief Magistrates Court Kiboqa)

SSEKABAZIGA GEORGE WILLIAM::::::::::::::::::::::::::::::::::

(Administrator of the estate of the late Namutebi Solome)

VERSUS


BEFORE: HON. MR. JUSTICE KAREMANI JAMSON. K

RULING

Introduction

Ssekabaziga George William (hereinafter referred to as the applicant) brought this application under section 62 (1) (now section 68(1) of the Advocates Act, Section 33 (now

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Wam

section 37) of the Judicature Act, Sections 76(1)(h), 96 & 98 of the Civil Procedure Act (CPA), Order 50 Rules 8 and Order 52 Rules 1,2 and 3 of the Civil Procedure Rules (CPR) against the respondents jointly seeking the following orders;

- a) The applicant be granted an extension of time within which to file a taxation appeal against the taxation of the respondents' bill of costs by the Deputy Registrar vide taxation application no. 04 of 2024 and the resultant orders thereto allowing the respondents' bill of costs at Shs.5,990,000/ $=$ . - b) A consequential order be issued that the applicant's appeal filed out of time be validated. - c) Consequential orders be issued.

Background

The respondents filed misc. application no .053 of 2022 against the applicant seeking a temporary injunction before the Chief Magistrate's Court of Kiboga. The said application was granted and the applicant appealed to this court against the same vide civil appeal no. 043 of 2023. The appeal was dismissed with costs to the respondents. The respondents' bill of costs was taxed ex parte by the learned Deputy Registrar and allowed at shs. $5,990,000$ /=vide taxation application no. 04 of 2024. The applicant then filed misc. application no.184 of 2024 seeking to review and set aside the costs awarded to the respondent upon taxation. By consent of both parties, it was concluded that the costs which were awarded by the learned Deputy Registrar be maintained and that execution proceeds. The matter proceeded for execution vide execution misc. application no. 006 of 2024. On $19/9/2024$ , both parties entered into a consent execution and it was agreed that the applicant (judgment debtor) pays only Shs. $5,000,000/$ = in total settlement of the costs.

The applicant has since then filed taxation appeal no. 229 of 2024 in this court seeking to set aside the orders of the learned Deputy Registrar in taxation application no. 04/2024 and has also brought this application seeking validation of the same the taxation appeal.

Mam

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Grounds

The grounds of the application are set out in the affidavit in support sworn by the applicant stating several grounds but briefly that taxation application no. 004 of 2024 was heard ex parte without notice to the applicant. That the applicant was only called and informed about the results of the taxation and as a result of fear, coercion, undue influence and threats of arrest and commitment to civil prison, he executed the consent to pay Shs. $5,000,000/=$ . That a result of not being heard in taxation application no. 04 of 2024, the applicant has since filed a taxation appeal before this honorable court. However, the time within which to file the appeal has since lapsed hence this application for extension of time to appeal.

The $2^nd$ respondent swore an affidavit in reply on behalf of other respondents opposing this application. He deponed that whereas the taxation was first done ex parte, it was again done inter party in the presence of the applicant and his counsel and the results were the same. That the applicant has not shown any sufficient cause for extension of time to appeal against the taxed bill of costs which is an agreement between the parties.

Representation

The applicant was represented by Mr. Sserunkuma Bruno of M/S GW Bwanika and Co. Advocates while the respondents were represented by Mr. Bikadho Fahad of M/S Bikadho & Co. Advocates.

Both counsel made submissions for consideration by this court.

The Law

Order 50 Rule 8 of the CPR provides that any person aggrieved by any order of the Registrar may appeal from the order to the High Court and the appeal shall be by motion on notice.

Main

Section 68(1) of the Advocates act cap 295 provides that any person affected by the order or decision of the taxing officer may appeal within 30 days to the High Court Judge.

From the proceedings before the Deputy Registrar of this court I noticed that the applicant and the respondents entered into a 'Consent at Execution' on $19/9/2024$ vide Execution Miscellaneous Application No. 006 of 2024. (hereinafter referred to as the consent)

In that consent the parties agreed that the judgment debtor (applicant) shall pay only shs. $5,000,000/$ = as total costs instead of the earlier taxed costs of shs. 5,990,000/=. The consent was executed by both parties and their respective counsel and further endorsed by court.

The said consent order entered on 19^th September 2024 in my view replaced the earlier order of the learned Deputy Registrar passed in taxation application no. 04 of 2024.

This implies that at this stage, there are no enforceable orders from taxation application no. 4 of 2024 as the orders there in were overtaken by the orders in the consent order in EMA No. 006 of $2024$ .

It is therefore my considered position that the parties themselves agreed on the amount of costs to be paid i.e. $shs5.000.000 =$ and therefore can not appeal against the same.

From the above reasoning, it is again my conclusion that the order in taxation application no. 004 of 2024 which the applicant herein seeks to appeal against and has filed this application for validation was reached out of consent and therefore not appealable.

Secondly, the applicant who was involved in execution of the same order on the 19^th September 2024 and did not appeal or apply to set aside the same consent order doesn't have any sufficient reason to justify why he did not appeal or apply before three months lapsed. There is no justification for that delay.

Mam

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Finally, this application lacks merit and is dismissed with costs.

I so order. Mam

KAREMANI JAMSON. K JUDGE $17/3/2025.$

Court: Subsequently Misc. Application No. 229 of 2024 which is the appeal filed out of time without leave is also dismissed with costs.

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$\mathbf{k}$ Man $($ $\omega$ $\omega$ KAREMANI JAMSON. K

JUDGE $17/3/2025$ .