Ndiga v Said & another (Environment and Land Case E018 of 2024) [2026] KEELC 4555 (KLR)
The bottom line
#The Environment and Land Court allowed a defendant to appeal a judge's refusal to step aside, pausing the case for 60 days.
What this practically means
#Executive summary
#Key legal issues
#Leave to appeal against a recusal ruling
Leave granted; a recusal ruling is not appealable as of right under Order 43 Rule 1, so leave is a prerequisite, and the intended appeal raising Article 50(1) fair hearing questions was arguable
Section 75 and Order 43 list orders appealable as of right; a recusal refusal is not among them. Leave is therefore a jurisdictional prerequisite. Authorities hold one bona fide arguable ground suffices. The Applicant raised Article 50(1) issues in the supporting affidavit, which suffices in lieu of a draft memorandum, and filed promptly 13 days after the ruling.
Stay of proceedings pending intended appeal
Conditional stay granted; the appeal attacks the impartiality of the trial tribunal itself, and failing to stay risks vitiating the entire trial
Stay of proceedings is drastic and exercised sparingly, weighing expeditious disposal, arguability, judicial time and expedition. Where the intended appeal challenges the court's own impartiality, conducting the trial under a cloud risks a de novo trial. A conditional stay compelling expeditious prosecution of the appeal balances Article 50(1) against Article 159(2)(b).
Costs
Costs abide the outcome of the intended appeal
Costs follow the event under Section 27(1) of the Civil Procedure Act, exercised judicially; here the fair order was that costs await the appeal's outcome.
Legal principles established
#- An order declining an application for the recusal of a judge is not appealable as of right; leave is a jurisdictional prerequisite to the intended appeal
- A single arguable ground suffices for leave to appeal; the appeal need not ultimately succeed
Court orders
#- 1.Leave granted to the 1st Defendant/Applicant to appeal to the Court of Appeal against the ruling and order delivered on 25th September 2025
- 2.Stay of further proceedings in this suit pending the hearing and determination of the intended appeal, on condition that the Applicant files the appeal within 60 days from the date of the ruling
- 3.In default of compliance, the stay shall automatically lapse and stand discharged, and the suit shall proceed to hearing on priority basis, with liberty to the Plaintiff/Respondent to apply
- 4.Costs of the application to abide the outcome of the intended appeal
- Jurisdiction invoked
- Section 75 of the Civil Procedure Act and Order 43 Rule 1(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndiga v Said & another (Environment and Land Case E018 of 2024) [2026] KEELC 4555 (KLR)", Case Analysis (2026). ELC E018 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4555/eng@2026-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.