High Court at Mukono Declines to Permanently Stay Re-Taxation of Advocate's Fees, Holds That Work Done Before a Practising Certificate Is Issued Is Irrecoverable Under Section 75 of the Advocates Act
Before :Hon. Lady Justice Rosemary N. Bareebe, AG. Judge
Facts
The Applicant, Kiiza James, practised under the first Respondent, then known as Mugisa, Namutale & Co. Advocates. He conducted proceedings for the late Haji Muhamad Katimbo in Civil Suit No. 124 of 2019, Civil Suits Nos. 69 to 73 of 2020, Miscellaneous Cause No. 7 of 2021, Miscellaneous Application No. 82 of 2022 and related matters. He drew and signed pleadings, appeared in court and dealt directly with the deceased.
After the death of Haji Muhamad Katimbo and a change of advocates by his estate, the first Respondent presented advocate-client bills of costs against the estate in Taxation Applications Nos. 94 to 114 of 2024. The bills were taxed and certificates issued for a cumulative sum said to exceed UGX 1.5 billion.
The estate's administrators successfully challenged that taxation. In Taxation Appeal No. 1 of 2025, the Court set aside the taxation decisions and remitted the bills for fresh taxation before another judicial officer.
Before the fresh taxation concluded, the Applicant brought this application by Notice of Motion under section 98 of the Civil Procedure Act, section 66 of the Advocates Act and Order 52 rules 1, 2 and 3 of the Civil Procedure Rules. He sought declarations that the deceased fully paid him all legal fees and disbursements, that Taxation Applications Nos. 94 to 114 of 2024 and the related Miscellaneous Applications Nos. 304 to 311 of 2024 stood moot, and that the re-taxation ordered in Taxation Appeal No. 1 of 2025 be permanently stayed.
The Applicant admitted that he drew, signed and filed specified pleadings on 18 June 2020, before the Law Council issued his practising certificate for that year on 25 June 2020.
The first Respondent maintained that the deceased retained the firm and that the Applicant performed the work as its employee or assigned advocate. It denied authorising him to receive or waive the firm's fees and pointed to affidavits he had previously sworn in the taxation dispute, in which he stated that no payment had been received.
The second, third and fourth Respondents, as administrators of the deceased's estate, supported the application. They maintained that the deceased paid for the services during his lifetime, that the estate should not pay twice, and that Section 75 of the Advocates Act bars recovery of fees for work performed without a valid practising certificate.
LEGAL REPRESENTATION
For the Applicant
M/s Adalet Advocates.
For the Second, Third and Fourth Respondents
Mr Derrick Bazekuketta of M/s Olympia Advocates.
For the First Respondent
M/s Nsubuga K's & Co. Advocates.
Submissions of the Parties
The Applicant's Submissions
Counsel for the Applicant submitted that the first Respondent's affidavit in reply was verbose and argumentative and should be struck out under Order 19 rule 3 of the Civil Procedure Rules, relying on Life Insurance Corporation of India v Panesar [1967] EA 614 and Nakiridde Namwandu v Hotel International Ltd [1987] HCB 85.
Counsel submitted that the deceased instructed and paid the Applicant directly, that his relationship with the first Respondent was merely "of counsel", and that the firm served only as an address through which his practising certificate was processed.
He argued that Taxation Applications Nos. 94 to 114 of 2024 and the related Miscellaneous Applications were consequently moot, and that the re-taxation ordered in Taxation Appeal No. 1 of 2025 should be permanently stayed under section 98 of the Civil Procedure Act and section 66 of the Advocates Act.
The First Respondent's Submissions
Counsel for the first Respondent, relying on the affidavit of its Managing Partner, Mr Wadembere Nuhu, submitted that the application was incompetent because the provisions cited did not confer the relief sought.
Counsel argued that the deceased retained the firm and that the Applicant performed the disputed work as its employee or assigned advocate. She submitted that the firm never authorised the Applicant to receive or waive its fees, and that his present position directly contradicted affidavits he had previously sworn in Miscellaneous Application Nos. 34 and 35 of 2025, where he stated that no fee note had been issued and no payment received.
Counsel further submitted that the question of the Applicant's practising certificate fell exclusively within the jurisdiction of the Law Council.
The Second, Third and Fourth Respondents' Submissions
Counsel for the administrators supported the application. He submitted that the deceased paid for the legal services during his lifetime, and that compelling the estate to pay again would be unjust.
He argued that Section 75 of the Advocates Act barred recovery of fees for professional work performed without a valid practising certificate, and that this bar applied to the pleadings the Applicant admitted signing and filing on 18 June 2020.
Court's Findings
On the Preliminary Objection
The Court held that an affidavit does not become defective merely because it is lengthy. Applying Order 19 rule 3 of the Civil Procedure Rules, the Court disregarded paragraphs containing legal argument or speculation on motive, but found no basis to strike out the entire affidavit. The preliminary objection was overruled.
On the Competence of the Application
The Court held that citing an incorrect provision is not necessarily fatal where the Court otherwise has jurisdiction to grant the relief sought, citing Saggu v Roadmaster Cycles (U) Ltd, Court of Appeal Civil Appeal No. 46 of 2000, [2002] 1 EA 258. The Court found that the application sought to render the bills moot and permanently stay an order the Court had already made in Taxation Appeal No. 1 of 2025, a step properly pursued through review under section 82 of the Civil Procedure Act and Order 46 rule 1 of the Civil Procedure Rules, citing Mohamed Alibhai v W.E. Bukenya Mukasa and Another, Supreme Court Civil Appeal No. 56 of 1996.
The Court found the application procedurally misconceived to the extent that it sought to reverse or neutralise the re-taxation order. Citing Makula International Ltd v His Eminence Cardinal Nsubuga and Another, Court of Appeal Civil Appeal No. 4 of 1981, [1982] HCB 11, the Court held that this finding did not permit it to overlook the statutory illegality disclosed in the application.
On Locus Standi
The Court held that the Applicant, though not a party to the taxation proceedings, had a direct interest in the dispute because his work founded the first Respondent's claim to fees. Citing Regulation 17 of the Advocates (Professional Conduct) Regulations, the Court held that he bore a professional duty to disclose the alleged payment and the illegality. It held that this standing to disclose facts did not, without proof of the retainer, authority and payment, entitle him to extinguish the bills.
On the Retainer and the Applicant's Authority
The Court found that the Applicant had not proved a personal retainer or ownership of the bills, given the absence of any personal fee note, receipt or correspondence, and given his earlier sworn affidavits in Miscellaneous Application Nos. 34 and 35 of 2025 stating the opposite. Applying Freeman & Lockyer (A Firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480, the Court held that the first Respondent, by letting the Applicant practise under its name and deal directly with the deceased, represented him as its agent with actual or apparent authority. Under section 106 of the Evidence Act, the evidential burden to prove any limitation on that authority rested on the firm, which it failed to discharge.
On Proof of Payment
Citing sections 101 to 103 of the Evidence Act and Senkungu and Others v Mukasa, Supreme Court Civil Appeal No. 17 of 2014, [2017] UGSC 14, the Court held that the burden of proving payment rested on the party asserting it. The Court found the Applicant's acknowledgment of receiving payments material and adverse to his own interest, but held that he had not identified the amounts, dates or matters for every payment. The Court found the administrators' payment inventory only partly corroborative, since it did not clearly separate payments to the Applicant from payments to a third party, Mr Kinsambwe Harouna Kagodo. The Court ordered that every payment proved or specifically acknowledged must be credited against the appropriate bill at re-taxation.
On the Purported Forfeiture of Fees
The Court held that the Applicant's purported forfeiture of the fees carried no independent legal effect, since a person can waive only a right that belongs to him, and the Applicant had not proved ownership of the bills.
On Work Performed Without a Practising Certificate
The Court found that the Applicant admittedly drew, signed and filed pleadings on 18 June 2020, six days before his practising certificate issued on 25 June 2020. Applying Section 75 of the Advocates Act and Alfred Olwora v Uganda Central Co-operative Union, Supreme Court Civil Appeal No. 25 of 1992, the Court held that the fees for that work were irrecoverable by operation of law, regardless of which party presented the bill. The Court held that the Law Council's disciplinary jurisdiction over the Applicant's conduct was distinct from the Court's duty to determine whether the billed items were legally recoverable.
On the Stay of Re-Taxation
The Court held that a permanent stay was a grave remedy that could not be granted merely because part of the claim might fail. It found no basis to declare the bills moot or to stay the re-taxation permanently, and directed that the re-taxation proceed before the designated taxing officer.
On Collusion and Improper Motive
The Court declined to make findings of fraud, collusion or conspiracy on the affidavit evidence before it, holding that such findings required strict proof.
HOLDING
The High Court at Mukono made the following orders:
Under Section 75 of the Advocates Act, no costs are recoverable by the Applicant, the first Respondent or any other person for professional work the Applicant performed before his practising certificate issued on 25 June 2020. Every item tied to that work stands disallowed upon re-taxation.
Every payment proved or specifically acknowledged by the Applicant as received from the late Haji Muhamad Katimbo binds the first Respondent and must be credited against the appropriate bill. Any failure by the Applicant to remit or account for that money does not revive liability against the estate.
The re-taxation ordered in Taxation Appeal No. 1 of 2025 shall proceed before the designated taxing officer, who shall determine the lawful balance after disallowing prohibited items and crediting all proved payments.
The taxing officer shall consider the Applicant's acknowledgments, the payment inventory, oral testimony, mobile-money records, contemporaneous accounts and the parties' course of dealing. No payment shall be rejected solely because it was made in cash or without a formal receipt.
The prayers to declare Taxation Applications Nos. 94 to 114 of 2024 and Miscellaneous Applications Nos. 304 to 311 of 2024 moot, and to permanently stay the re-taxation, are refused.
Any dispute between the Applicant and the first Respondent over accounting, ownership or division of fees may be pursued separately and shall not be visited upon the deceased's estate.
Each party shall bear its own costs.
Key Takeaways
Law firms cannot claim the benefit of an advocate's work for billing purposes and disown the advocate's lack of qualification when the practising certificate bar arises.
A client's payment to an advocate within his actual or apparent authority discharges the client's debt to the firm, even where the advocate fails to remit the money internally.
Advocates and firms should keep fee notes, ledgers and receipts. Informal cash dealings do not bar proof of payment, but they raise the evidentiary burden at taxation.
A party aggrieved by a taxation order should pursue review under section 82 of the Civil Procedure Act rather than a fresh application that seeks the same practical result.
Work performed before a practising certificate issues carries a real risk of disallowance at taxation, regardless of the quality of the work or the client's willingness to pay.
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