Court rejects Makerere alumnus’ bid to halt sh10m costs
Justice Collins Acellam dismissed Rutaro’s application for a stay of execution, declaring that he had failed to prove that enforcement of the costs award would cause him substantial loss or render his pending appeal nugatory.
Court rejects Makerere alumnus’ bid to halt sh10m costs
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The High Court has dismissed an application by Makerere University alumnus Robert Rutaro seeking to stop execution of a judgment in which he was ordered to pay Sh10.6m in costs to Makerere University.
Justice Collins Acellam dismissed Rutaro’s application for a stay of execution, declaring that he had failed to prove that enforcement of the costs award would cause him substantial loss or render his pending appeal nugatory.
Rutaro had sought an order staying execution of the judgment and decree in High Court Miscellaneous Cause Number 023 of 2023 until the Court of Appeal determines his Civil Appeal Number 0448 of 2024.
The application arose from a dispute concerning the Makerere University Convocation annual general meeting held on December 30, 2022.
Rutaro had earlier challenged the legality, rationality and procedural propriety of the meeting and sought several judicial review remedies, orders and declarations.
The case was before Justice Lydia Wamala, who dismissed the application on May 15, 2024, with costs to Makerere University and the Board of Trustees of Makerere University Convocation.
Rutaro subsequently lodged a notice of appeal and filed an appeal before the Court of Appeal, challenging the High Court decision.
While the appeal was pending, Makerere presented a bill of costs for taxation.
The bill, which was initially drawn at sh18.3m, was taxed on May 19, 2025, and allowed at sh10.6m.
Rutaro then returned to the High Court, this time before Justice Acellam, arguing that Makerere’s move to tax the costs showed that it was taking steps to enforce the judgment.
He argued that unless execution was stayed pending determination of his appeal, he would suffer substantial loss and the appeal could be rendered nugatory.
Rutaro also told court that his appeal raised serious and arguable questions of law and that he had taken steps to prosecute it by writing to the Registrar of the Court of Appeal seeking a hearing date.
However, Makerere opposed the application.
Through its University Secretary and accounting officer, Yusuf Kiranda, the university said the application had been overtaken by events because the bill of costs had already been taxed.
Kiranda told court that although the costs had been taxed, Makerere had not commenced execution proceedings against Rutaro.
He further stated that the university had no intention of taking execution proceedings against Rutaro in the near future.
Justice Acellam rejected Makerere’s argument that the application had become entirely moot following taxation of the bill of costs.
He said Rutaro’s main prayer was for a stay of execution of the judgment and decree, and was not limited to stopping the taxation process.
The judge said although completion of taxation had rendered any attempt to stop the taxation futile, it did not extinguish the broader prayer for a stay of execution.
He noted that the costs liability had now been ascertained and remained capable of enforcement.
However, the judge said taxation and execution were legally distinct processes.
“Taxation serves to ascertain the amount recoverable pursuant to an award of costs. It places the successful party in a position from which enforcement may subsequently be pursued, but taxation and execution remain legally distinct processes,” he ruled.
Acellam said although Rutaro was not required to wait until actual attachment or other coercive measures had commenced before seeking protection from court, he still had to demonstrate that the threat of execution was real rather than speculative.
He found that the evidence before him did not show an immediate threat of execution because Makerere had expressly stated that it had not commenced execution and had no immediate intention of doing so.
The judge said the biggest problem with Rutaro’s application was his failure to provide evidence showing how payment of the sh10.6m would cause him substantial loss.
He said Rutaro repeatedly used the expression “substantial loss” but did not provide facts to support the claim.
According to Acellam, Rutaro did not disclose his financial circumstances, demonstrate that he would be unable to recover the money if his appeal succeeded, or point to any other special consequence that would make the loss irreversible.
“Substantial loss is not established using the expression itself. It is a matter of evidence,” Acellam said.
He added that payment of the taxed costs would not, by itself, extinguish Rutaro’s appeal or prevent the Court of Appeal from reversing the High Court decision and making consequential orders if the appeal succeeded.
The judge distinguished Rutaro’s case from cases where execution could permanently alter the subject matter of a dispute, transfer property beyond recovery, remove a person from office, destroy a business or create circumstances that could not be reversed by an appellate court.
On the prospects of the appeal, Acellam said he would not determine whether Rutaro was likely to win because the same High Court had already made the decision being challenged.
The judge nevertheless found that Rutaro had demonstrated that an appeal existed and that he had taken steps towards its prosecution.
Justice Acellam said he was not prepared, on the material before him, to describe the appeal as frivolous.
However, the judge stressed that the existence of an appeal alone does not automatically result in a stay of execution.
The judge also faulted Rutaro for failing to offer security for the due performance of the decree.
He noted that Rutaro had neither offered to deposit the Sh10.633m, provide a bank guarantee nor furnish security in another form.
Acellam said security is meant to balance the interests of an appellant seeking to postpone enforcement with those of a successful litigant who is entitled to enjoy the fruits of a valid judgment.
The judge said the failure to offer security was particularly significant because Rutaro had also failed to prove substantial loss.
Makerere had also argued that Rutaro filed the application after an unreasonable delay, pointing out that the High Court judgment was delivered on May 15, 2024, while the stay application was filed on February 20, 2025.
However, Acellam declined to reject the application solely on the basis of delay.
He noted that Rutaro had lodged his notice of appeal shortly after the judgment and that the immediate event giving rise to the stay of the application was Makerere’s subsequent move towards taxation of its costs.
The judge said it would, therefore, be inappropriate to determine delay simply by counting the period between the judgment and filing of the application.
Acellam said Rutaro had established the existence of a pending appeal and had shown that the application remained competent despite completion of taxation.
However, he said these factors were outweighed by the failure to prove substantial loss, the absence of evidence that payment of the costs would render the appeal nugatory, the lack of formal execution proceedings and Rutaro’s failure to offer security.
“The discretion to grant stay must be exercised upon sufficient cause demonstrated by evidence. It cannot rest upon apprehension alone,” the judge ruled.
He consequently dismissed Rutaro’s application for stay of execution of the judgment and decree in Miscellaneous Cause Number 023 of 2023 pending determination of Civil Appeal Number 0448 of 2024.
The judge ordered that costs of the application would be in the cause.