The Supreme Court has delivered a major setback to Western Highland Creameries Limited and businessman Lee Ngugi in their long-running legal battle with Stanbic Bank Uganda Limited, upholding a substantial legal-cost award against them and ruling that lawyers can be entitled to significant instruction fees even where a case is thrown out on preliminary points of law.
In a unanimous decision in Civil Appeal No. 16 of 2024, the five-member Supreme Court dismissed the appeal by Western Highland Creameries and Ngugi, leaving the Court of Appeal decision in favour of Stanbic Bank intact.
The judgment, authored by Justice Monica Kalyegira Mugenyi and concurred in by Justices Percy Night Tuhaise, Elizabeth Musoke, Stephen Musota and Catherine Bamugemereire, also ordered the appellants to meet the costs of the litigation in the Supreme Court and the two lower courts.
The ruling closes another chapter in a dispute that dates back decades and which has involved loans running into billions of shillings, a receiver appointed over the dairy company, contested enforcement of security, sale of property and a protracted fight over lawyers’ fees.
From Shs945 million loan to a multimillion-shilling legal-cost battle
The dispute has its roots in financing extended by Stanbic Bank to Western Highland Creameries and Ngugi in the 1990s.
According to the Supreme Court judgment, Stanbic advanced the appellants UGX945.211 million in 1995, secured by a debenture over the company’s assets and a mortgage over land in Mbarara.
Two years later, in February 1997, the bank extended additional credit facilities amounting to UGX1.924 billion, secured by a further charge on the company’s land and a US$600,000 bank guarantee issued by National Bank of Kenya.
The appellants subsequently defaulted on their loan obligations.
Stanbic recalled the US$600,000 guarantee in March 1999, while in June 2001 the bank appointed Michael Mawanda as receiver/manager.
The dispute escalated dramatically when Western Highland Creameries and Ngugi went to court in 2011, challenging the bank’s enforcement of the debenture and mortgage, Mawanda’s appointment as receiver and the eventual sale of the mortgaged property to Alpha Dairy Products Limited.
The appellants alleged that the enforcement process was tainted by fraud and illegality.
But their lawsuit did not proceed to a full trial.
The High Court dismissed Civil Suit No. 462 of 2011 on preliminary legal grounds, finding that it offended the limitation law and the Registration of Titles Act and disclosed no cause of action against Stanbic or Mawanda.
That dismissal triggered another legal battle—this time over how much the successful bank should be paid for defending itself.
The Shs612 million costs bomb
After winning the suit, Stanbic and receiver Mawanda filed a bill of costs.
Among the claims was UGX589.527 million in instruction fees, calculated with reference to the value of the land identified in the plaint.
The Taxing Master initially awarded Stanbic and Mawanda UGX104.867 million in instruction fees, with the total taxed bill standing at UGX146.248 million.
Stanbic challenged that assessment.
The High Court subsequently ordered the Taxing Master to reconsider the instruction fee based on the value of the subject matter pleaded in the lawsuit—identified as US$5 million and UGX38.818 billion.
A revised certificate of taxation followed.
The revised bill put the total costs at UGX612.123 million, including UGX499.676 million in instruction fees and approximately UGX93.375 million in VAT.
That figure became the centre of the latest battle.
Western Highland Creameries and Ngugi described the award as inaccurate, manifestly excessive, highly unconscionable and punitive.
They also challenged the manner in which the taxation proceedings had been conducted, arguing that the Taxing Master had proceeded ex parte and that their constitutional right to a fair hearing had been violated.
Supreme Court rejects “calculator” approach
One of the most consequential aspects of the judgment is the Supreme Court’s clarification of the powers of taxing officers when determining legal costs.
The appellants had argued that the lower courts had effectively reduced the Taxing Master to a “mere calculator”, mechanically applying the formula contained in the Advocates’ Remuneration and Taxation of Costs Rules.
The Supreme Court rejected that approach.
Justice Mugenyi held that taxing officers retain discretion and must consider the actual circumstances of each case, including the skill, labour and responsibility involved in handling the matter.
The Court went further, declaring that any suggestion that a Taxing Master is merely required to calculate percentages under the Sixth Schedule is untenable.
It relied on its recent decision in Sudhir Ruparelia & Another v Bank of Uganda, stressing that each taxation must be decided on its own merits and that complicated matters requiring extensive preparation and research may justify higher fees.
This means that legal costs cannot simply be reduced to a mechanical mathematical exercise.
But the Court simultaneously reaffirmed that the value of the subject matter remains an important factor.
Losing at the preliminary stage does not erase lawyers’ fees
The appellants’ central argument was that because their 2011 lawsuit was dismissed on preliminary points of law without a full trial, Stanbic’s lawyers should not receive instruction fees calculated on the full value of the property and losses claimed in the plaint.
The Supreme Court disagreed.
The Court made a significant distinction between a case where a lawyer’s instructions are terminated before the matter is concluded and a case where the lawyer actually defends the client through to a conclusive determination—even if that determination comes through a preliminary objection.
The Court distinguished the earlier Lumweno & Company Advocates v Transafrica Assurance Company Limited decision, which stated that a case ending on a technicality should not attract the same fees as one proceeding to trial.
Justice Mugenyi explained that Lumweno concerned an advocate-client bill following withdrawal of instructions before trial, while the Stanbic dispute concerned party-to-party costs after the contentious matter had been conclusively determined.
That distinction proved decisive.
The value pleaded in court can drive the legal bill
The Supreme Court also rejected the argument that a case dismissed for limitation or failure to disclose a cause of action has no ascertainable value for purposes of calculating instruction fees.
Justice Mugenyi held that where the value of the subject matter is discernible from the pleadings, it can form the basis of taxation even if the case never reaches a full trial.
The Court expressly stated that it does not matter whether a suit is decided after a full trial or disposed of through preliminary points of law, provided the value of the subject matter can be determined from the pleadings.
That principle could have significant implications for future commercial litigation.
A party that pleads enormous monetary claims or places a high value on property in its lawsuit could potentially face substantial party-to-party legal costs if it loses, even where the case is disposed of at an early stage.
The Supreme Court said the rationale lies in the nature of party-to-party costs, which are intended to indemnify a successful party for expenses incurred in prosecuting or defending litigation.
In the Stanbic case, the bank had been forced to defend itself against allegations concerning the sale of property pleaded to be worth colossal sums.
Court rejects argument for automatic reduction because trial never happened
The judgment is particularly significant because it rejects the assumption that an early legal victory should automatically translate into a dramatically lower legal bill.
The Supreme Court held that instruction fees should not depend solely on whether the matter reaches a full trial.
What matters is whether the advocate was instructed and conclusively prosecuted or defended the case.
Thus, Stanbic could not be penalised merely because its lawyers successfully disposed of the litigation through preliminary points of law.
The Court upheld the lower courts’ conclusion that the value of the subject matter remained ascertainable from the plaint and therefore could be used under the relevant provision of the Sixth Schedule.
But Supreme Court also sends warning to taxing officers
Although Stanbic ultimately prevailed, the judgment is not a blank cheque for lawyers to demand whatever fees they want.
The Supreme Court emphasised that the Taxing Master’s discretion must be exercised judicially rather than whimsically.
The Court cited principles requiring consideration of the work done, the value of the subject matter, the complexity of the case and the need to ensure that legal costs do not rise to unreasonable levels that could undermine access to justice.
It also stressed that there is no “mathematical or magic formula” for arriving at the precise amount of instruction fees. Each matter must be considered according to its own circumstances.
This creates a delicate balance: the value of the claim matters, but so do the actual work and responsibility undertaken by counsel.
Battle over the bank guarantee
The other major issue concerned money already recovered by Stanbic through a bank guarantee provided as security for costs.
After the revised taxation, the respondent successfully called on a bank guarantee issued by NC Bank Uganda Limited.
The appellants argued that because the taxation award was later set aside after the High Court found that their right to be heard had been violated, Stanbic should have been ordered to return the money obtained under the guarantee.
Again, the Supreme Court rejected the argument.
The High Court had not simply declared that the appellants owed nothing.
Instead, it ordered a fresh inter partes taxation to establish the correct amount, particularly after identifying the need to establish the appropriate Uganda shilling equivalent of the foreign currency component.
The Supreme Court agreed that any refund could only be determined after the fresh taxation established whether Stanbic had been overpaid.
Why the bank was allowed to keep the money for now
The Supreme Court gave a practical explanation for refusing to order an immediate refund.
The bank guarantee was specifically intended to meet Stanbic’s taxed costs.
Once the Taxing Master had issued the certificate of taxation, Stanbic was entitled to realise the guarantee.
The later reversal of the certificate did not automatically mean that every shilling obtained under the guarantee had to be returned immediately.
Instead, the money could remain with the intended beneficiary pending determination of the final amount properly payable after fresh taxation.
The Court reasoned that ordering an immediate full refund could trigger another round of litigation over fresh security for costs, unnecessarily prolonging an already protracted dispute.
A decades-long dispute comes back to the bank’s favour
The latest ruling represents a significant victory for Stanbic Bank Uganda.
What began with loans advanced in the 1990s has evolved into a legal contest spanning more than two decades, with the parties fighting over enforcement of securities, receivership, property sales, limitation, taxation of costs, constitutional fair-hearing rights and the treatment of a bank guarantee.
The Supreme Court’s decision effectively brings the latest appeal to an end.
The five Justices unanimously agreed with Justice Mugenyi’s reasoning. Justices Bamugemereire, Musota, Musoke and Tuhaise each concurred with the lead judgment, resulting in dismissal of the appeal.
The final order is blunt: the Court of Appeal’s decision is upheld, the appeal substantially fails, and Stanbic Bank is awarded costs in the Supreme Court and the two lower courts.
The bigger message
The ruling carries a powerful warning for litigants pursuing high-value commercial disputes.
Winning or losing at a preliminary stage does not necessarily determine the size of the eventual legal-cost exposure.
Where a claim places a clearly ascertainable value on property, money or other assets, that value may provide the foundation for calculating instruction fees—even where the court disposes of the case without hearing the substantive evidence at a full trial.
At the same time, the Supreme Court has made clear that taxing officers cannot blindly apply a formula. They must assess the work actually undertaken, the complexity and importance of the matter, the responsibility assumed by advocates and the wider interests of justice.
For Western Highland Creameries and Ngugi, however, the immediate consequence is unequivocal: their latest attempt to overturn the costs consequences of the Stanbic litigation has failed at Uganda’s highest court, with the Supreme Court also ordering them to pay the costs of the appeal and the two courts below.
