On 24 March 2023 I observed many lawyers in various chat groups celebrating one decision of the Court of Appeal, only to dismiss it ten days later in favor of another decision from the same court. The two rulings concerned the same legal issue and very similar facts, yet they reached opposite conclusions.
In the first case (CA 43 of 2023, *URA v NSSF*), Justice Oscar John Kihika (JA) held that a single Justice of the Court of Appeal had jurisdiction to hear a substantive interlocutory application. The application, brought by the Uganda Revenue Authority to stay execution and prevent enforcement of a judgment ordering it to pay UGX 25 billion to the National Social Security Fund, was dismissed with costs. Ten days later, in the second case (CA 860 of 2022, *MTN U Ltd v Occur Odwe Julius Peter*), Lady Justice Eva K. Luswata ruled that a single Justice did **not** have jurisdiction to entertain a stay‑of‑execution application filed by MTN to block enforcement of a judgment ordering it to pay more than UGX 500 million to a former deputy Inspector General of Police. That application was referred to a panel of three Justices, which is still awaiting a hearing.
Although the decisions appear contradictory, each was justified by the law and the legal principles applied by the respective judges. Conflicting decisions are not confined to a single court; lower courts sometimes refuse to follow precedents set by higher courts. Such discord undermines many cases and leaves both lawyers and litigants “running on empty.” This article does not aim to debate the merits of either ruling; rather, it seeks to explore the broader phenomenon of conflicting court decisions—a phenomenon that is becoming increasingly common in Uganda.
Conflicting decisions can benefit or harm the legal system, but they inevitably bring pain and anxiety. Even the judges who issue divergent rulings likely agonise over them and yearn for consensus that aligns with the law. In my view, such contradictions damage the court’s conscience and impede judicial economy, contributing to Uganda’s chronic case backlog—reported at roughly 50 000 cases annually. The absence of a policy addressing conflicting decisions prolongs litigation and clogs the courts.
Therefore, temperance and coherence in judicial decisions are essential to preserve the logic and symmetry of the law. Citizens deserve to organise their affairs based on a clear and consistent understanding of legal rules. We delegate the interpretation of law to the courts, and lawyers base their advice on those enforceable interpretations. Yet the arbitrariness of some conflicting decisions blurs the clarity of legal counsel.
A uniform application and interpretation of the law would uphold one of the judiciary’s core values: equal treatment of all persons before the court, regardless of gender, religion, or socio‑economic status. Conflicting decisions often appear to favour certain litigants, undermining this principle. In the cases cited, URA and MTN may feel discriminated against, while NSSF and Mr Odwe may view the outcomes as just. The article recognises that much of today’s law stems from judicial creativity—judges who dared to depart from the norm. The foundations of contract law, for example, are largely judge‑made, thanks to figures such as Lord Mansfield, the 18th‑century Chief Justice of the King’s Bench, whose judgments on contracts, commercial law, insurance, and unjust enrichment are still cited. Creative judges have also shaped the modern tort of negligence (e.g., *Donoghue v Stevenson* 1932) and the rules on remoteness of damage (e.g., *The Wagon Mound (No 2)* 1967).
While judicial innovation can generate conflicting decisions, unchecked judge‑made law threatens the rule of law. The problem is amplified because the boundaries of judge‑made law are inherently fluid, intended to keep the law responsive to socio‑economic change. Nonetheless, the consensus is that judge‑made law will remain a permanent feature of our legal system.
To mitigate the problem, courts should exercise judicial power in conformity with established law, societal values, norms, and aspirations. This approach would uphold legal certainty and the legitimate expectations of the public, promoting justice. It does not mean that every inconsistent decision must stand; decisions that contravene the law or constitution and have outlived their usefulness should be overruled, but only when such a break aligns with parliamentary intent and the will of the people.
The Ugandan judiciary should develop guidelines for when and how decisions may depart from legal precedent. Such a policy could draw on the sentencing guidelines already used in criminal matters. In my humble view, this would help curb the uncoordinated and negative impacts of conflicting court decisions.
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