Reference filed on: 18th December 2019. 

Rules: 114, 84(1) & (2) and 85 of the East African Court of Justice (EACJ) Rules of Procedure, 2013.

Subject matter: Instruction fees awarded to the Respondent allegedly excessive.

The Applicant, Secretary General of the East African Community (EAC) contests against instruction fees of USD 328,900 awarded to the Respondent (Hon. Margaret Zziwa) on 4th June 2019 in Taxation Cause No. 1 & No. 2 of 2019. The Applicant challenges the fees for allegedly being unreasonable, excessive and unprecedented in the history of this Court and if allowed to stand will have grave repercussions against the financial affairs of the Community and prospective litigants. The challenged Taxation rulings arose from Appeal No. 7 of 2015 where Hon. Margaret Zziwa successfully appealed aganuuuuinst a decision of the First Instance Division in Reference No. 17 of 2014 and was awarded cost for two Counsels. 

The Applicant further alleges that, the taxing officer in awarding such excessive fees acted contrary to Rule 9(1) & (2) of the Court Rules of Procedure of 2013 in the third schedule and failed to appreciate the Applicant’s submission, the difficult financial circumstances of the Community that is to bear the costs, the effect of such unprecedented award on the affairs of the Community and other poor litigants, high costs that would flow from such high instruction fees, the relevant circumstances that show clearly that the Respondent had already been paid special damages of USD 140,000 and the fact that the instruction fees are meant to compensate and not advance unjust enrichment. 

It is the Applicant’s submission that the Reference is competent before the Court having been filed in accordance to the relevant rules and requests the Court in the interest of justice to revise downwards the challenged instruction fees and all items that flow from it to an amount of USD 3000 or at most not exceeding USD 10,000. Since upholding the award will cause injustice to the Applicant and believe the Court is clothed with power and discretion to interfere with the award by the taxing officer.  

The Respondent opposes the Reference for being incompetent and invites the Court not to interfere with the award as the taxing officer took into account all factors that existed in the case before him and acted judiciously in considering the relevant legal principles to the matter so as to award the appropriate amount. Further submits inter alia that, the case attracted high fees due to the nature of the issues raised which were of great importance, complex and aroused a lot of public interest. The complexity demanded extensive research, skills, plenty of time, hard work and engagement of lawyers from two law firms. Further, for five years this matter was under constant litigation and it cut a new path in the Treaty interpretation, application and compliance and for the first time the Court affirmed the remedy of damages and legal consequences of breach of international law obligations. The Respondent prays for dismissal of the Reference with further costs and upholding of the decision of the taxing officer. 

During a hearing held on 19th February 2020, it was noted that the bill of costs that was taxed was construed under the third schedule and not eighth schedule as required under rule 9(3) and 113 (3) of the Court Rules of Procedure of 2013. The provisions require costs to be taxed in accordance with the rules and the scales set out in the third schedule for the First Instance Division and eighth schedule for the Appellate Division. Following a lacuna in the Court rules of Procedure of 2013 of not providing for the eighth schedule which was to be the proper rule to constitute a legal basis for taxation in the Appellate Division, the taxation was thus done under with the third schedule.  

Parties were thus allowed to file written submission and submit on how should the bill of cost be drawn taking into account rule 113(3) and in the absence of the eighth schedule in the rules, how should the taxation be done. Should the taxing officer apply any schedule or no schedule? The matter is therefore coming up for hearing of the additional written submission on this specific issue.

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