IN THE EAST AFRICAN COURT OF JUSTICE

APPELLATE DIVISION AT KAMPALA

(Coram: Nestor Kayobera, P; Sauda Mjasiri, VP and Anita Mugeni, JA)

APPEAL No. 4 OF 2020

BETWEEN
ERIC KA BALI SA MAKALA ... .................................... APPELLANT

VERSUS

THE ATTORNEY GENERAL

OF THE REPUBLIC OF RWANDA ............................ RESPONDENT

[Appeal from the Judgement of the First Instance Division of the East African
Court of Justice at Arusha by Hon. Lady Justice Monica K. Mugenyi
(Principal Judge); Hon. Dr. Faustin Nteziryayo (Deputy Principal Judge);
Hon. Audace Ngiye and Hon. Charles Nyawello, JJ.) dated 18th June 2020
in Reference No.1 of 2017].

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 JUDGMENT OF THE COURT

A. INTRODUCTION
1. This is an appeal by Kabalisa Makala Eric (Appellant) against the
Judgement of the First Instance Division of this Court (hereinafter referred
to as the "Trial Court"), in Reference No.1 of 2017 dated 18th June, 2020
which dismissed the Reference.
2. The Appellant is a citizen of the Republic of Rwanda resident in Kigali
City, Nyarugenge District, Nyamirambo Sector, Cyivugiza Cell, Karisimbi
village. He was self-represented.
3. The Respondent is the Attorney General of the Republic of Rwanda, who
was sued on behalf of the Government of Rwanda as its Legal Advisor.
4. The Respondent opposed the Appeal and filed a cross-appeal under
Rule 102(3) of the East African Court of Justice Rules of the Court, 2019
(hereafter "the Court Rules") challenging the Court's decision of granting
the Appellant one-third (1 /3) of the costs on dismissing the Reference.
5. In this Appeal, the Appellant is self-represented whereas the Respondent
is represented by Mr. Ntwali Emile, Principal State Attorney, Mr. Nicolas
Ntarugera, Senior State Attorney, and Mr. Timothy Gaseswa, State
Attorney.

B. BACKGROUND.
6. This appeal originates from Reference No.1 of 2017 which was brought
before the Trial Court under Articles 6(d) and 9(e) of the Treaty for the
Establishment of the East African Community (hereinafter "the Treaty"),
challenging the termination of the Appellant's services with Rwanda
Utilities Regulatory Authority (RURA) in the process of the restructuring
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 and downsizing of the institution in accordance with the policy of the
Government of the Republic of Rwanda.
The Reference.
7. The Reference hinged on the allegation that the termination process
violated the Rwandan law, the Treaty, and other international
conventions.
8. The Appellant was employed by RURA (Rwanda Utilities Regulatory
Authority) since April 27 th , 2009.
9. Around 2013 and under the new Prime Minister's order No. 139 of
19/10/2011 in determining the organisational structure and summary of
job positions for the Rwanda Utilities Regulatory Authority and following
the re-organization and downsizing through the reduction of a number of
its employees' positions, the Appellant was suspended from his services
for six months and thereafter he was dismissed for the same reasons
indicated in the suspension letter that he was provided.
10. Subsequently after the dismissal by RURA, the Appellant felt that he
was unlawfully dismissed and lodged Case No. RAD 0153/12/HC/KIG
before the High Court of Rwanda based on the fact that RURA has a legal
personality to sue and/or be sued in the courts of justice. The Appellant
lost the case on the grounds that RURA had followed all the required
procedures for dismissing an employee. Therefore, the Court rejected
all the prayers sought in his claim.
11. The Appellant filed Appeal No. RADA 0034/13/CS of 11 th October,
2013 to the Supreme Court of Rwanda which in turn held that the appeal
filed by Kabalisa Makala Eric had no merit thus the Court upheld the
decision of case No. RAD 0153/12/HC/KIG of 26th April 2013.

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12. Dissatisfied with the Supreme Court's Ruling in Case No. RADA
0034/13/CS, the Appellant sought to have the decision reviewed by the
same court and was unsuccessful. He subsequently lodged the
Reference No.1 of 2017 challenging the legality thereof.
13. During the scheduling conference, in the Trial Court, the following
issues were agreed upon by the parties: -
1. Whether this Honourable Court has jurisdiction over the
matter before it for determination.
11. Whether or not the acts complained of by the Applicant are in
contravention of article 6 of the Treaty.
111. Whether or not the Applicant is entitled to remedies.

14. On 18th January, 2020 in its judgment, the Trial Court dismissed the
Reference and awarded one-third ( 1/3) of the costs to the Appellant.

C. THE APPEAL.
15. Aggrieved with the Judgment of the Trial Court, on 25 th June 2020, the
Appellant filed a notice of appeal against the said decision, based on the
following grounds which are reproduced as under: -
"i. The First Instance Division was biased in the manner to be both
judge and judged.
ii. That, the First Instance Division made the final verdict before
receiving substantial evidence composed of a case No. RADA
0034/13/CS because the evidence they did not see could not
have helped them to make a fair conclusion without bias.
iii. The First Instance Division by rendering the Judgment they did
change his lawsuit where in the article copy of the Judgment
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 copy of Court REFERENCE NO.1 of 2017 stated that "I filed a
lawsuit of being dismissed from my Job by RURA" The case I
submitted to the Honorable Court is: On the 11th November
2016, the government of Rwanda, flouted the laws and ignored
the EAC of which it is the signatory and as a citizen I bear the
brunt"
Iv. In its Judgment, the First Instance Division favoured the
Respondent in a very obvious manner, where I explained that the
laws were flouted by the Government of Rwanda, they said that
the laws were not flouted while it is very visible to everyone.
v. The First Instance Division relied on the document,
Respondent's document that he submitted in the manner that did
not comply with the legal procedures (Affidavit), even the judge
raised the same question on the hearing day on 12/11/2019, if
the defendant should explain the procedure they used while
preparing that document if it is an affidavit".

D. CROSS-APPEAL
16. On 14th August, 2020 the Respondent on his part filed a notice of
Cross-Appeal under Rule 102(2) of the Court Rules challenging the
Court's decision of awarding the Appellant one-third (1/3) of the costs
upon the dismissal of the Reference.

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 E. THE SCHEDULING CONFERENCE.
17. At the scheduling conference of the Appeal held on 08 th February 2022,
the parties, with the assistance of the Court, framed the following issues
for determination: -
1. Whether the First Instance Division exercised its jurisdiction
properly.
ii. Whether the First Instance Division committed a procedural
irregularity by not properly analysing the evidence tendered by
the Appellant.
iii. Whether the First Instance Division of the Court exercised its
discretion judiciously by awarding the Appellant one-third (1/3) of
the costs.
iv. What remedies are the parties entitled to?

F. ISSUES FOR DETERMINATION.

ISSUE NO.1: Whether the First Instance Division exercised its
jurisdiction properly.
a. Appellant's case:
18. In his submissions, the Appellant reiterated at length the facts and
background of the dispute with RURA, an institution in the Respondent
State as earlier highlighted, and lamented about how the courts of the
Respondent's State failed to administer justice to him, the narration of
which we will not repeat because the background of the case has already
been highlighted herein above.
19. On this first issue on whether the First Instance Division exercised its
jurisdiction properly, the Appellant contended that according to Article 35
of the Treaty and Rule 86 of the Court Rules his grounds of appeal are
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 based on points of law, lack of jurisdiction, and procedural irregularities.
He is praying for the Court to review the disputed judgment and to dismiss
it.
20. The Appellant averred that in reaching the verdict, the Trial Court was
biased: - "in a manner to be both judges and judged". The Appellant
contended that despite contesting the illegality of the decisions of the
Rwandan Courts for violation of the Treaty, the Trial Court leaned on the
opponent's side on the RURA, case while RURA is not an institution of
the Community. The Appellant referred this Court to Rule 86 of the Court
Rules as well as to Article 30(1) and 30(3) of the Treaty.
21. The Appellant further submitted that the Trial Court judgment was not
based on his lawsuit as he did not complain for being dismissed from his
job by RURA. According to him the Reference filed to the Court was as
follows: -
"That on the 11 11' November, 2016 the Government of Rwanda
flouted the laws and ignored the EAC agreement of which it is
the signatory and as its citizen I bear the brunt."
Therefore, by doing this, the Trial Court acted contrary to the requirements
of Articles 30(1) and 35(2) of the Treaty.
22. The Appellant argued that the Trial Court reached a decision in the
same way as the High Court in Rwanda when the judgment in respect of
RAD 0153/12/HC/KIG was entered. He reiterated that the East African
Court of Justice (EACJ) has an international jurisdiction, unlike the
defunct East African Court of Appeal which only dealt with Appeals from
National Courts. The major responsibility of the Court is to ensure respect
for the law in the interpretation and application of the EAC Treaty.

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23. To support his case, the Appellant relied on the provisions of Articles
27, 30(1) and (3), 35(1) and (2) of the Treaty.
24. The Appellant further submitted that in paragraph 52 of the Judgment,
the Trial Court upheld the argument of the Respondent based on Article
93(5) of Law No. 86/ 2013 of 11 September 2013 while this law which the
Court relied on was not relevant to his problem since he had been
dismissed from his job in 2011 well before the coming into effect of the
said law. Accordingly, pursuant to Rule 86(b) of the Court Rules, the
Appellant submitted therefore, that the Trial Court lacked jurisdiction.

b. Respondent's case
25. In his response to the entire grounds of Appeal, the Respondent in the
first place objected to the whole substance of the Appeal lodged by the
Appellant and submitted that the Appeal is devoid of merit.
26. The Respondent submitted that the Appeal does not meet the criteria
of an appeal as stipulated under Article 35 A of the Treaty and Rule 86 of
the Court Rules which require that any appeal must demonstrate and
establish grounds of Appeal on either, a point of law, lack of jurisdiction of
the Court or procedural irregularity.
27. The Respondent referred this Court to the case of Simon Peter
Ochieng and Others versus the Attorney General of the Republic of
Uganda, EACJ Appeal No.4 of 2015 where the Court in its Judgement
analysed the question of the propriety of an Appeal for determination
before it, especially in paragraphs 21 and 22 of the Judgment. It was held
that the Appellant must establish either a point of law, lack of jurisdiction
or procedural irregularity.

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28. The Respondent averred that failure to satisfy the mandatory
conditions as set out in Article 35(A) of the EAC Treaty and Rule 86 of the
Court Rules, 2019 automatically renders the Appeal devoid of merit. The
Appellant has failed to establish any error on a point of law, lack of
Jurisdiction, or any procedural irregularity that was committed by the Trial
Court.
Based on the Respondent's submissions, the Appellant has failed to
establish the requirements under Article 35 A of the Treaty and Rule 86
of the Court Rules.

c. Determination by the Court.

29. This Court has carefully reviewed the case, considered the
submissions made by both parties and the relevant laws, and it is now our
duty to assess whether the Trial Court exercised its jurisdiction properly.
30. First and foremost, it is very surprising to note that the Appellant being
a party who brought his claim before the Court, is now challenging its
jurisdiction!
31. In order to determine on this issue, we had to revisit the pleadings in
the Trial Court and we found that it was the Respondent who challenged
the jurisdiction of the Court and it was the Appellant who was the Applicant
and was the one who emphasized that the Court had jurisdiction. The First
Instance Division in paragraph 24 of the Judgment ruled in his favour that
the Court had jurisdiction to entertain the matter.
32. In the impugned Reference No.1 of 2017, in paragraph 24 the Trial
Court held as follows: -
"It does then become abundantly clear that the Respondent's
argument that the Court is not vested with jurisdiction to entertain a
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 matter relating to the violation of the Partner States' domestic laws is
fundamentally flawed. This Court is most evidently adorned with the
ratione materiae to adjudicate the present Reference. Having found
that the Court is similarly vested with ratione personae vis the
Respondent State, we would answer this issue in the affirmative."
33. From the above paragraph, the jurisdiction of the Court was made clear
by the First Instance Division under Articles 27(1) and 30(4) of the Treaty.
34. Therefore, this Court is unable to find any basis from Appellant's
submissions, in what way the Trial Court erred in law while exercising its
jurisdiction. Given the fact that the Appellant failed to point out that the
Trial Court committed an error by entertaining the matter which it found it
had jurisdiction.
35. Consequently, Issue No.1 is answered in the affirmative

ISSUE N0.2: Whether the First Instance Division committed a

procedural irregularity by not properly analysing the
evidence tendered by the Appellant.
a. Appellant's case
36. Regarding this issue, the Appellant submitted that in its Judgment the
Trial Court favoured the Respondent in a very obvious manner and
declared that the organs of the Government of Rwanda did not flout any
laws.
37. In substantiating the above argument, the Appellant averred that the
Trial Court failed to point out how the Rwandan Court reached a decision
based on the Annex of official gazette no.43 of 24/10/2011 at page 69.
That in its Judgment, the same Court relied only on one pay slip for June

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 2009, which had been submitted after the proceedings have been closed
in the case RAD 0153/12/HC/KIG
38. The Appellant also argued that under Rwandan laws of procedure
whenever new evidence is adduced after the proceedings have closed,
the court has the obligation to reopen the proceedings in order to allow
parties to discuss the fresh evidence. This principle was not followed by
High Court of Rwanda and the First Instance Division held that it does not
have jurisdiction to interpret the laws of a Partner State.
39. The Appellant further submitted that the Trial Court ignored the fact
that the verdict of the High Court of Rwanda, was based on the French
Jurisprudence which violated the provisions of Article 6 paragraph 4 of
law no. 21/2012 of 14/06/2012 relating to the Civil, Commercial Labour,
and Administrative Procedure.
40. The Trial Court failed to consider that the High Court of Rwanda stated
that the Respondent had no academic qualifications and ignored the
evidence submitted before it showing that he was dismissed due to poor
performance which was not the case as it was not reflected in the relevant
letters.
41. The Appellant averred that he suffered injustice as the Courts of the
Respondent's State failed to consider that all the other employees of
RURA who were on the same level were retained.
42. He further submitted that in its Judgment the Trial Court ignored the
discrimination that the Appellant was subjected to, ignoring the provisions
of the Constitution of the Republic of Rwanda.
43. The Appellant contended that in paragraph 48 of the Judgement, the
Trial Court mentioned that there is no information indicating that the
judgment in case No. RADA 0034/13/CS was available. He stated further
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 that the Trial Court ignored that Article 148 was not honoured by the
Courts of the Respondent's State, including paragraph 141 (2) of the
Rwandan Constitution.
44. The Appellant also averred that while passing the judgment the Trial
Court ignored the fact that the Courts of the Respondent's State violated
article 186, paragraph 2 of the law relating to Civil, Commercial, Labour
and Administrative Procedures.
45. The Appellant further submitted that the Trial Court entered the
Judgment before receiving the substantive evidence of the case RAD
0034/13/CS which would have helped the Court to make a fair conclusion.
46. The Trial Court did not have the relevant Judgment but rather chose
not to consider it despite having a copy of the said judgment since July
31, 2017. Hence this is a procedural irregularity committed by the court.
In view of this, the Appellant asked the Appellate Court to consider the
said Judgment that the Trial Court claimed that it did not have.
47. The Appellant further argued that the Supreme Court of Rwanda in
paragraph 14 of its Judgment RADA/0034/CS exceeded its jurisdiction
therefore acted contrary to the Article 96 of the 2003 Constitution of the
Republic of Rwanda as amended.
48. Lastly, on this issue, the Appellant requested this Court to take into
consideration the Supplementary Record of Appeal in addition to the
Supreme Court Judgment of Rwanda. He also asked the Court to make
a Ruling on his Assets which were seized by the Respondent's State.

b. Respondent's case.
49. The Respondent submitted that there was no procedural irregularity in
adjudging the case at the Trial Court. Therefore, the Respondent
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 requested this Court to put the Appellant to strict proof thereof to justify
the three legal basis of the appeal as per rule 86 of the Court Rules.
50. The Appellant referred this Court to the Case of Angela Amudo
versus the Secretary General of the East African Community (EACJ)
appeal No.4 of 2014) where the Court defined what constitutes an error
of Law and procedural error by the Court when it: -
a) misapprehends the nature, quality, and substance of the
evidence.
b) draws wrong inferences from the proven facts.
c)acts irregularly in the conduct of a proceeding or hearing
leading to a denial or failure of due process (i.e. fairness) e.g
irregularly admits or denies admission of evidence, denies a
party a hearing, ignores a party's pleadings, etc.
In addition, the Respondent relied on Simon Peter Ochieng Case
(Supra) in paragraph 29 which reiterated that: -
"He who alleges must prove". In that regard, a Party alleging
whatever error must explain what the alleged error is and how it
leads to miscarriage of justice. Equally, in the instant Appeal, it is
up to the Appellant who is alleging an error of Jaw occasioned by
the Trial Court to identify, establish and explain the alleged error of
law and how ii invalidates the impugned decision".
51. Procedural irregularity was defined by this Court in Attorney General
of the United Republic of Tanzania versus the African Network of
Animal Welfare (ANAW), EACJ Appeal No. 3 of 2011 where the Court
held as follows: -
".. .procedural irregularities are "irregularities that attach to the
conduct of a proceeding or trial" such as "the inadmissibility of
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 documents or witnesses, denying a party the opportunity to be
present or to be
heard at all, hearing a matter in camera (where it should be heard
in public and vice versa), failure to serve in time or at all, etc."
52. The Respondent contended that the Appeal did not specify any errors
committed by the Trial Court in the above-mentioned grounds of appeal.
The memorandum of appeal filed by the Appellant raised very general
and vague grounds of appeal. In the premises the Respondent submitted
that the submitted grounds of Appeal by the Appellant constitutes a
general dissatisfaction with the judgment of the Trial Court, but with no
proven facts on non-compliance with Article 35 A of the Treaty and Rule
86 of the Court Rules.
53. The Respondent further submitted that the Appeal and all the
pleadings do not indicate, identify or establish the alleged errors of law, in
the legal arguments and submissions on the Appeal and in all the
documents in support of the Appeal.
54. Finally, the Respondent submitted that the Appeal is without merit and
should be dismissed with costs.

C. Determination by the Court

55. The Court has taken into consideration the parties' submissions as well
as their pleadings filed before this Court. What this Court has to determine
is whether or not the Appellant has satisfied the requirement;; under
Article 35 A of the Treaty as well as Rule 86 of the Court Rules.
56. In addressing this issue, we note that the submissions and pleadings
of the Appellant are very general, speculative, ambiguous to the extent
that this Court is unable to see or find any point of law or errors and/or

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 any procedural irregularity that the Appellant is trying to contend. What
the Court sees is a clear lamentation and a general complaint without any
legal basis.
57. This Court Is of the considered view that the Appellant being
dissatisfied with Trial Court Judgement is introducing the same issues as
per the Reference before the Trial Court to be determined afresh in this
Court which is not possible.
58. Under Article 35 A of the Treaty and Rule 86 of the Court Rules, an
appeal to the Appellate Division may be initiated on the following grounds:

"An appeal from the judgement or any order of the First Instance
Division of the Court shall lie to the to the Appellate Division on:

(a) points of law;

(b) grounds of lack of jurisdiction; or
(c) procedural irregularity".
59. The Court finds that the Appellant has fai-led to meet the requirements
under Article 35 A of the Treaty and Rule 86 of the Court Rules.
60. The Court notes that, in the impugned Judgment, the Trial Court
addressed all the issues complained by the Appellant as procedural
irregularities and found no basis for his claim.
61. Given the above, this Court finds that the Appellant in his appeal failed
to meet the test and indicators as provided for under Article 35 A of the
Treaty as well as Rule 86 (c) on procedural irregularity.
62. The Court is of the view that a procedural error occurs where the Court
acts irregularly in the conduct of a proceeding or hearing leading to a
denial or failure of due process (i.e. fairness) e.g irregularly admits or
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 denies admission of evidence, denies a party a hearing, ignores a party's
pleadings, etc.
63. This Court has in its various decisions repeatedly defined in detail what
constitutes a procedural irregularity. In the case of Angela Amudo
(Supra), the Court by defining what constitutes an error of Law and
procedural error, at paragraph 65, this court held as follows:
"We are fully aware that a court commits an error of law or a procedural
error when it: -
(a) misapprehends the nature, quality, and substance of
the
evidence: See, for instance, Peters v. Sunday Post (1958)
EA 424, Ludovick Sebastian v. R, (CAT) Criminal Appeal
No. 318 of 2007 (unreported);
(b) draws wrong inferences from the proven facts: see,
Trevor Price & Another vs. Raymond Kelsal [1957] EA 752,
Wynn Jones Mbwambo v. Waadoa Petro Aaron (1966) E.A
241; or
(c) acts irregularly in the conduct of a proceeding or hearing
leading to a denial or failure of due process (i.e. fairness)
e.g irregularly admits or denies admission of evidence,
denies a party a hearing, ignores a party's pleadings, etc:
see, The Hon. Attorney General v. ANAW (supra)".
64. In the case of Attorney General of the United Republic of Tanzania
versus the African Network of Animal Welfare (Supra), at pages 22,
held that:
" ... procedural irregularities are in character, irregularities that
attach to the conduct of a proceeding or trial. It comprises such
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 irregularities as the inadmissibility of documents or witnesses,
denying a party the opportunity to be present or to be heard at
all, hearing a matter in camera (where it should be heard in public
and vice versa), failure to notify or serve in time or at all, etc."
65. In the case of Simon Peter Ochieng'(Supra) this Court held as follows
in paragraph 29: -
" ... he who alleges must prove in regard that "A party alleging
whatever error must explain what the alleged error is and how it
leads to miscarriage of justice".
Therefore, in the instant Appeal, it was the onus of the Appellant who is
alleging an error of law occasioned by the Trial Court to identify, establish
and explain what is the alleged error of law and how it invalidates the
impugned decision.
66. In the same case of Simon Peter Ochieng' (supra) in paragraph 26,
this Court categorically held that: -
"Litigants should bear in mind that this Court is not tasked to
undertake a rehearing de nova of questions of facts and law
examined by the First Instance Division. The right of appeal to the
Appellate Division is restricted to the grounds provided under Article
35 (A) of the Treaty".
67. In the premises, this Court finds that the Appellant failed to
demonstrate and establish proof on the grounds of appeal as required
under Article 35 A of the Treaty and Rule 86 (c) the Court Rules.
68. Consequently, issue No. 2 is answered in the negative.

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ISSUE No.3: Whether the First Instance Division of the Court
exercised its discretion judiciously by awarding the
Appellant one-third (1/3) of the Costs.
Cross Appeal.
69. The Respondent filed under Rule 102(3) of the Court Rules, a cross-
appeal challenging the Court's decision of awarding the Appellant one-
third (1/3) of the costs upon dismissal of the Reference. During the
scheduling conference, parties with the assistance of the Court framed
the above issue which is similar to the cross appeal.

a. Respondent's Submissions on the cross appeal.

70. On this issue, the Respondent referred this Court to Rule 127(1) of the
Court Rules and submitted that according to the said Rule there is no
justifiable ground as to why the Trial Court granted 1/3 of the costs to the
Appellant based on the fact that his conduct both at the Trial Level and even
at the Appellate level regarding his lack of cooperation with the Court.
The Respondent further submitted that the Appellant should not be granted
any costs, as such decision prejudices the Respondent who has incurred
unnecessary expenses in this case from National Courts to the Appellate
Division of EACJ.
71. The Respondent averred that the principle of granting appropriate
remedies to parties was propounded in the case of Attorney General of
the Republic of Burundi and the Secretary General of the EAC,
Appeal No.2 of 2019 where the Court held that: -
"... and we find no reason that the 1st Instance Division would depart
from its established jurisprudence that the Respondent was entitled to
be granted costs of the reference".
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72. The Respondent further contended that there was no justification for the
Court to grant costs to the losing party having dismissed the Appellant's
Reference. That was a clear sign of a violation of the Court's Rules and a
demonstration of sympathy to the Appellant.
73. Therefore, the Respondent prayed for remedies on the ground that the
decision of the Trial Court and the conduct of the Appellant in general was
prejudicial to the Respondent. The Appellant wasted the Respondent's time
and resources unnecessarily while attending to this matter from 2017.

a. Appellant's submissions on the cross appeal.

74.The Appellant referred this court to Rule 104 (1) of the Court Rules 2019
and submitted that the notice of cross appeal should not be taken into
consideration by this Court because he was served with the notice via
email beyond the 7 days period as provided for by this Rule.
75.On this issue, the Appellant referred to Rule 127(1) of the Court Rules
which provides that "Costs in any proceedings shall follow the event
unless the Court shall for good reasons otherwise order''. He contended
that the above Rule gives the Court discretion to determine whether any
party is entitled to costs. He further submitted that the responsibility lies
with the Honourable Court of the East African Community to justify the
reasons for awarding costs.
76. Therefore, the Appellant requested the Court to reject the cross-appeal
which was filed by the Respondent.

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C. Determination by the Court
77.We have carefully considered the submissions from both parties and now
we have to assess and determine whether the Trial Court was right to
award 1/3 of the costs to the Appellant who had lost the case.
78.Before making a determination on this issue, we revisited the impugned
judgment in order to understand the basis of the decision of the Trial Court
to award costs to the losing party.
79.When this Court reviewed paragraphs 57 of the impugned Judgment, the
Trial Court stated that both parties succeeded in one of the substantive
issues that had been framed and that therefore their success in the
Reference is evenly balanced.
SO.The Trial Court further acknowledged and stated that the point of law
raised by the Respondent has been a substantive issue in the Reference
given its vitality to the determination of the parties' respective interests.
81.Given this acknowledgment by the Trial Court it was implied that the
Appellant has lost the case.
82.However, on the contrary, the Trial Court despite this finding went ahead
to award 1/3 of the costs to the Appellant. In paragraph 58 of the
Judgment of the Trial Court held as follows: -
"In terms of hardship, it is not lost upon us that the Applicant
propagated his case personally without the benefit of advocacy
services that, given his circumstances, he was seemingly unable
to afford. Perhaps had he had the benefit of legal advice he
might have forgone the present legal proceedings and spared
himself and the opposite party the costs incurred. It seems to us,
therefore, that the circumstances of this case do warrant a
departure from the general rule as espoused in Rule 127(1) of
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 this Court's Rule. Consequently, we would exercise our
discretion to award one third of the costs hereof to the Applicant".
83.Rule 127(1) of Court Rules provides that: -
"Costs in any proceedings shall follow the event
unless the Court shall for good reasons otherwise
order'.

This is the position of the Court in the case of Mary Ariviza &
Other v. Attorney General. of Kenya & Other, Ref. No. 7 of
2010, at p.29 where the Court held that:-

,, The successful party normally gets costs of the litigation

unless the Court in its discretion, which should be
exercised judicially, directs otherwise".
84.ln general, the principle is that costs follow the event (our emphasis); this
means that the costs of an action are usually awarded to the successful
party. This Court has defined the "evenf' in the case of Secretary
General of EAC v. Rt. Hon. Margaret Zziwa, Appeal No. 7 of 2015, at
23 (May 27, 2016) as follows: -
" ... the outcome of the matter before the Court for
consideration when the order for costs is made." (Emphasis
ours)
This means that in principle, the successful party normally gets costs
of the litigation.
85. However, it should be noted that there is an exception which allows the
Court in its discretion, for good reasons to otherwise order. This means
that a judge at his discretion can depart from this principle and not award
the costs to the winning party but not to a losing party.

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86.ln the case of Hon. Margaret Zziwa v. Secretary General of East
African Community, Appeal No. 2 of 2017, at page 45 (May 25, 2018)
where the Court held that a successful party may only exceptionally be
deprived of costs depending on the particular circumstances as follows: -
"... costs are in the discretion of the court; in exercising
such discretion, the Court bears in mind that costs follow
the event and that a successful party may only exceptionally
be deprived of costs depending on the particular
circumstances of the case such as the conduct of the
parties themselves or their legal representatives, the nature
of the litigants, the nature of the proceedings or the nature
of the success. Those are the guiding principles to the court
deciding at first instance on whether to award costs."
(Emphasis ours)
87.There are by now precedents set by this Court, where in some cases, a
Court for plausible reasons, decided not to award costs to the winning
party and ordered that each party bears its own costs. We would like to
make reference to the following cases: -
1. In the case of Attorney General of Tanzania. v. Africa Network
for Animal Welfare (ANAW), (Supra) at p 31 (July 29, 2014) the
Court held that:-
"Since the Reference was brought in the interest of
conservation and preservation of the Serengeti Park, 'a
gem of a heritage, one-for-a/I-mankind' each patty would
bear its own costs".

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 11. In the case of Attorney General of Tanzania v. Anthony Ca list
Komu, Appeal No. 2 of 2015, at 33-34 (Nov. 25, 2016) the court
ordered that:
"each party bear its own costs as the case raised
'challenging issues' pertinent to the proper interpretation
and application of various Treaty articles"
The above cases provide guidance on the circumstances in which a Court
may depart from the principle of the cost follow the event.
88.We find that much as the Trial Court applied its discretion in the manner
demonstrated above by awarding costs to a losing party, we are of the
considered view that this move is unprecedented (Emphasis ours) and
without any legal basis. It has never happened that a Court would deprive
the winning party of costs and award the losing party costs whatever the
proportion or percentage is. By doing so, the Trial Court misapplied and
misinterpreted Rule 127(1) of Court Rules.
89.ln the circumstances, the Trial Court did not exercise its discretion
judiciously by awarding the Appellant (the losing party) one third (1/3) of
the Costs.
90.Therefore, it follows as night follows day that we answer issue No.3 in the
negative.

Issue No. 4: What remedies are the parties entitled to.

91.The Appellant prayed this Court to find that the First Instance Division
actually violated the provisions of the Treaty. And that the Court should
also finds the Courts of the Republic of Rwanda violated Article 6(d) and
7(2) of the Treaty and should condemn them to pay costs and any other

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 penalties that the Court may deem appropriate and applicable in this
case.
92.As to remedies, the Respondent averred that he is entitled to remedies
on grounds that the decision of the Trial Court and the conduct of the
Appellant in general prejudiced the Respondent and wasted the
Respondent's time and resources unnecessarily while attending to this
matter since 2017.
93.Rule 127(1) of the Court Rules provides that :-
"Costs in any proceedings shall follow the event unless the Court
shall for good reasons otherwise order".
In this appeal, the Appellant lost and the Respondent won on the cross-
appeal. However even if the principle is that cost follows the event,
given the nature of the case this Court is of the view that, each party
bears its own cost both in the Reference and in this Appeal.

CONCLUSION
94.ln the final result: -
(1 )The Appeal is hereby dismissed.
(2)The Cross appeal is hereby allowed.
(3)The Judgment of the First Instance Division is hereby
upheld save for costs.
(4)Each Party shall bear its own costs both in the
Reference and in the Appeal.
It is so ordered.

Dated, Signed and Delivered at Kampala, this 2"d day of December, 2022.
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 . Justice Nestor Kayobera
PRESIDENT

····· ··· ··· ··· ·· ·~ ·

Hon. ady Justice Anita Mugeni
JUSTICE OF APPEAL

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