Nova Realty Group Limited v Tom Brown Limited & 3 others
The bottom line
#The Court of Appeal refused to pause a land case because a party challenging a judge's recusal did not prove bias or serious harm.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal on the recusal ruling is arguable
The ground that the judge failed to apply the objective test of reasonable apprehension of bias is not frivolous, satisfying the arguability limb.
The Court accepted that although the respondents questioned the appeal's prospects, the contention that the learned judge erred in failing to apply the objective test of reasonable apprehension of bias deserved further interrogation at a main hearing. The arguability threshold under rule 5(2)(b) is low and a single ground is sufficient, citing prior authority.
Whether the appeal would be rendered nugatory absent stay of proceedings
No: the applicant failed to show exceptional circumstances, as it did not demonstrate probable truth of the bias allegations or irreversible prejudice from the proceedings continuing before the same judge.
The Court held that the argument that proceedings will continue before a judge facing impartiality questions is a proverbial argument in all such applications and cannot, without more, justify stay. The applicant had to show probable truth of the bias allegation or irreversible, extremely onerous prejudice; neither was demonstrated, and any grievance could be remedied on appeal.
Legal principles established
#- An application for stay of proceedings under rule 5(2)(b) of the Court of Appeal Rules must meet twin conjunctive requirements: an arguable appeal and that the appeal will be rendered nugatory absent stay.
- Stay of proceedings is a discretionary power to be granted sparingly and only in exceptional circumstances.
- An applicant seeking stay of proceedings to challenge a judge's refusal to recuse himself must demonstrate that in all probability the bias allegation is true, or that continued proceedings would cause irreversible or extremely onerous prejudice or hardship.
- The threshold of arguability in rule 5(2)(b) applications is low; a single arguable ground suffices.
Court orders
#- 1.Dismissal of the notice of motion dated 25th November 2025 seeking stay of proceedings
- 2.Costs of the application awarded to the 1st and 2nd respondents
- On appeal from
- Environment and Land Court, Nairobi
- Petition No. E053 of 2022
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (stay of proceedings pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nova Realty Group Limited v Tom Brown Limited & 3 others", Case Analysis (2026). Notice of motion dated 25th November 2025 (arising from Nairobi Environment and Land Court Petition No. E053 of 2022 – Tom Brown Limited & another v County Executive Committee Member in Charge of Planning & 2 others). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1219/eng@2026-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.