Where an applicant fails to establish a prima facie case for stay, the balance of convenience will ordinarily tip in favour of the successful party to enjoy the fruits of their judgment. Court Rules

 Facts

The Applicant, Nakamatte Namusisi Justine, acting as the administrator of the estate of the late Edward Nsereko and Akula Ssematimba, filed an application seeking a stay of execution of orders issued in Miscellaneous Application No. 1941 of 2025.

The application was premised on the existence of a pending review application (Misc. Application No. 2504 of 2025), which the Applicant argued had a high likelihood of success. She contended that the Respondents had demonstrated an intention to execute the decree, thereby exposing her to irreparable harm.

The Respondents opposed the application, asserting that there was no competent review application. The Applicant was using review as a substitute for an appeal; The application was frivolous, speculative, and an abuse of court process intended to delay execution.

Issues

The Court identified the following issues for determination;

1. Whether this was a proper case for stay of execution of the orders arising from Misc. Application No. 1941 of 2025.

2. What remedies were available to the parties.

Submissions of the Parties

Applicant’s Submissions (M/s Luzige, Lubega, Kavuma & Co. Advocates)

Counsel for the Applicant submitted that Miscellaneous Application No. 2504 of 2025 was properly instituted under the laws of Uganda and that its competence was a matter to be determined by the Court, not the Respondents. It was further contended that, as an aggrieved party, the Applicant was entitled to seek review before the same court that issued the impugned ruling.

The Applicant argued that the Respondents’ letter dated 4th December 2025, requesting rectification of errors in the ruling, demonstrated a clear intention to proceed with execution, thereby establishing a real and imminent threat. Counsel maintained that if execution were allowed to proceed pending determination of the review application, the application would be rendered nugatory and the Applicant would suffer irreparable harm.

Additionally, it was submitted that the Court possesses discretionary powers to grant a stay of execution in order to prevent injustice and preserve the subject matter of the dispute.

Respondents’ Submissions (M/s Lawgic Advocates)

Counsel for the Respondents submitted that the pending review application lacked merit and did not meet the legal threshold under Order 46 Rule 1 of the Civil Procedure Rules, as no error apparent on the face of the record had been demonstrated.

It was argued that the Applicant’s grievance stemmed merely from dissatisfaction with the Court’s earlier ruling, which does not constitute a valid ground for review.

Counsel further contended that the Applicant was improperly attempting to re-litigate the matter through the review process, effectively using it as a substitute for an appeal, which is impermissible in law.

The Respondents also maintained that no credible or imminent threat of execution had been established to justify the grant of a stay. In their view, the application was brought in bad faith and was a deliberate attempt to delay justice and frustrate the Respondents from enjoying the fruits of their judgment.

 Court’s Findings

The Court applied and reiterated the principles governing stay of execution under Order 22 Rule 23 of the Civil Procedure Rules, noting that the grant of stay is discretionary and contingent upon sufficient cause being shown.

The Court drew guidance from and adopted the four-limb test set out in Mugambe Steven v Ernest Ssensalire Semakade & Anor HCMA No. 2907 of 2023, requiring an applicant to demonstrate:

1. the existence of a pending appeal or substantive application with a likelihood of success;

2. that the appeal or application would be rendered nugatory if stay is not granted;

3. where the foregoing are not established, the balance of convenience; and

4. that the application was filed without unreasonable delay.

   
   

(a) Existence of a Substantive Application

The Court found and acknowledged that a substantive application for review, being Misc. Application No. 2504 of 2025, had indeed been filed and was pending before the Court. It therefore held that the first limb of the test had been satisfied.

(b) Likelihood of Success (Determinative Issue)

The Court identified, emphasised, and treated this as the decisive issue. It reiterated that under Order 46 Rule 1 of the Civil Procedure Rules, review is strictly limited to circumstances involving:

1. discovery of new and important matter or evidence;

2. an error apparent on the face of the record; or

3. any other sufficient reason.

Upon evaluating the material before it, the Court found that the Applicant had failed to satisfy any of these grounds. It observed and agreed with the Respondents’ contention that the review application was, in substance, an attempt to re-open the merits of the case.

The Court therefore held and reaffirmed the settled position that:

review cannot be used as an appeal in disguise.

Relying on Olula & 31 Others v Attorney General HCMA No. 0068 of 2015, the Court reiterated and clarified that review is not available merely because a party is dissatisfied with a decision, but only where a clear and self-evident error exists on the face of the record.

In conclusion, the Court found and held that the review application did not disclose any reasonable likelihood of success.

(c) Nugatory Consideration

The Court acknowledged and clarified that the nugatory principle is a relevant consideration in applications for stay. However, it emphasised that this consideration cannot be assessed in isolation and must be weighed alongside the likelihood of success of the substantive application.

In the circumstances, the Court found that, given the weak prospects of the review application, refusal to grant a stay would not render the application nugatory.

(d) Timeliness

The Court noted and found that the application had been filed promptly and without unreasonable delay, observing that the review application was lodged within seven days of the impugned ruling.

(e) Balance of Convenience

Having found that the Applicant failed to establish a likelihood of success, the Court held that the balance of convenience tilted in favour of the Respondents. The Court reiterated and emphasised the long-standing principle that a successful litigant should not be unjustifiably deprived of the fruits of their judgment.

It observed that litigation must come to an end and that courts should be slow to interfere with the enforcement of valid judgments in the absence of compelling justification.

Holding

The Court dismissed the application for stay of execution and held that:

1. The Applicant failed to establish sufficient cause for grant of stay.

2. The pending review application lacked a likelihood of success.

3. The Respondents were entitled to enjoy the fruits of their judgment.

Orders of the Court

The Court accordingly ordered as follows:

1. The application for stay of execution was dismissed in its entirety;

2. The Respondents were granted liberty to proceed with execution in accordance with the law; and

3. Costs of the application were awarded to the Respondents.

Read the full decision

Nakamatte Namusisi Justine v Stephen Bamwanga and Others 2026 UGHCLD 54 (16 March 2026).pd

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By

Harmony Owomugisha

Legal Scholar at Uganda Pentecostal University Lawpoint Uganda Student Ambassador

Editor’s Key Takeaways

1. Review Is Not a Substitute for Appeal

This decision restates the principle that a party dissatisfied with a court’s ruling cannot invoke review proceedings to re-argue the same issues. Review is confined to three narrow grounds; new evidence, an error apparent on the face of the record, or other sufficient reason. Mere dissatisfaction, however genuine, does not meet this threshold.

2. Likelihood of Success Is Important in Applications for Stay of Execution

In any application for stay of execution, the likelihood of success of the pending application or appeal is the cornerstone criterion. A weak underlying application will fatally undermine a stay application, regardless of whether the other criteria (such as the nugatory effect or timeliness) are satisfied.

3. For an Application to be Rendered "Nugatory," the Criterion Does Not Stand Alone

The Court clarified that the “nugatory” consideration, namely, whether refusal to stay execution would render the pending application pointless, must always be assessed alongside the likelihood of success. Even a potentially irreversible execution will not justify a stay where the pending application lacks reasonable prospects of success.

4. The Balance of Convenience Favours Successful Litigants

Where an applicant fails to establish a prima facie case for stay, the balance of convenience will ordinarily tilt in favour of the successful party, who is entitled to enjoy the fruits of their judgment without undue delay. Courts will not lightly deprive a successful litigant of that entitlement.

5. Stay of Execution Is a Discretionary Remedy

The grant of a stay of execution is never automatic; it is a discretionary remedy that must be justified by sufficient cause. Applicants bear the burden of satisfying each limb of the applicable test. Bare or speculative allegations of threatened execution and irreparable harm are insufficient.

This legal alert is for informational purposes only and does not constitute legal advice. For specific legal advice, consult a qualified legal practitioner.