Nova Realty Group Limited v Tom Brown Limited & 3 others

(An application seeking stay of any further proceedings orders from the ruling and order of the Environment and Land Court of Kenya at Nairobi (O. A. Angote, J.) dated and delivered on 23rd day of October 2025 in ELC Petition No. E053 of 2022) RULING 1. In a ruling dated 23rd October 2025, Angote, J. found that there was no sufficient cause to warrant him to recuse himself from hearing 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 respondents. As a consequence, the learned judge dismissed the notice of motion dated 23rd May 2025 brought by Nova Reality Group Limited (the applicant herein). The applicant is aggrieved by the decision and has lodged a notice of appeal dated 23rd October 2025 evincing its intention to challenge the decision by way of appeal to this Court. The applicant is now before us through a notice of motion dated 25th November 2025 seeking stay of those proceedings. 2. Speaking through an affidavit sworn by Hassan Abdi Mohamed sworn on 25th November 2025, the applicant company asserts that the appeal it intends to file is arguable raising legal grounds including; that the learned judge failed to apply the objective test of reasonable apprehension of bias as set out in the Supreme Court case of Rai & 3 others v Rai & 4 others (Petition 4 of 2012) [2013] KESC 20 (KLR); that the learned judge erred in failing to recuse himself notwithstanding the existence of a petition before the Judicial Service Commission (JSC) alleging bias and undisclosed relationship with one of the litigants; and that in dismissing the application contrary to the constitutional principle that justice must not only be done but also be seen to be done. 3. In contending that the appeal will be rendered nugatory if stay is not granted, the applicant argues that the matter will continue to be heard and determined by a judge who faces questions of impartiality against whom the applicant has a reasonable apprehension of bias. 4. John Harum Mwau, the 2nd respondent and a director of the 1st respondent, swore a lengthy replying affidavit on 16th February 2026. The affidavit was however withdrawn by learned Counsel Mr Ouma appearing for both respondents as it was filed late, outside the time given in directions issued by this Court regarding the hearing of the application. 5. The Attorney General did not file a response opting to oppose it by way of submissions. We have considered the material before us, and the submissions filed by the applicant, the 1st and 2nd respondents and the Attorney General. Those submissions received short highlights by learned Counsel Mr Wachira for the applicant, learned Counsel Mr Ouma for the 1st and 2nd respondents and learned State Counsel Mr Kamau representing the 1st and 2nd interested parties (who really should be the 5th and 6th respondents respectively). 6. The applicant seeks stay of proceedings and not stay of execution of the ruling of 23rd October 2025 so that even if the ruling dismissing the application for recusal of the judge was indeed a negative order, as posited by the respondents, it cannot bar the grant of stay of proceedings, if deserved. One consequence of the ruling was that the judge was at liberty to continue with the conduct of the proceedings and the applicant would, no doubt, be entitled to take out an application to freeze the proceedings pending the hearing and determination of the appeal, as it has done. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1219/eng@2026-06-26 2

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7. An application for stay of proceedings under rule 5(2)(b) of The Court of Appeal Rules, must meet twin conjunctive essentials; that the applicant has an arguable appeal; and that the appeal will be rendered nugatory if stay of proceedings is not granted. 8. It has then been emphasised, time without number, that whilst the power to stay proceedings is discretional, it is one to be granted sparely and only in exceptional circumstances. To stay proceedings “impinges on a right of action to justice, right to be heard without delay and overall right to fair trial” (the persuasive High Court decision in Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR)). It is a grave judicial step that should not be imposed “unless the proceeding beyond all reasonable doubt ought not to be allowed to continue” (Halsbury’s Laws of England 4th Edition Vol 37). 9. In Meta Platforms, Inc & another v Samasource Kenya EPZ Limited t/a Sama & 185 others; Central Organization of Trade Unions Kenya & 8 others (Interested Parties) (Civil Application E178 of 2023) [2023] KECA 999 (KLR) this Court gave instances of exceptional circumstances to include: if the impugned order has conclusively determined disputed questions of fact; has resolved questions separate from the merits of the action; and is effectively unreviewable on appeal from the final judgment in the underlying application or proceeding. These are just three examples to a list that is longer. 10. The threshold of arguability in rule 5(2)(b) proceedings is low. It is an appeal, which although not assured of success, deserves further interrogation by a bench at main hearing. A single ground is sufficient. See for example Attorney General and 4 Others (Civil Application Nai 24 of 2014 (unreported). Although the respondents have raised doubts about the prospects of the intended appeal, the contention by the applicant that the judge erred in failing to apply the objective tests of reasonable apprehension of bias in the circumstances of the case is not frivolous. 11. The assertion that unless the order is granted the matter will continue to be heard and determined by the same judge who faces questions of impartiality and against who reasonable apprehension of bias has been made is a proverbial argument made by applicants seeking stay of proceedings so as to challenge an order of a judge declining to recuse himself or herself from proceedings. If this was to be accepted, without more, then all such applications would have to be granted. It should not be so. 12. The applicant must demonstrate that in all probability the allegation of bias or lack of impartiality is true, or that to allow the proceedings to continue is likely to cause prejudice or hardship to the applicant that is irreversible or extremely onerous. These would fall in the category of exceptional circumstances. 13. In seeking the recusal of the judge at the ELC, the applicant asserted that it had been made aware of the JSC petition against the judge in which it was alleged that judge had a personal relationship with the 2nd respondent and had always shown bias in his favour. The apprehension is said to have been heightened because the judge did not disclose the existence of the alleged relationship to the parties in the suit before him. 14. While the applicant may be able to establish those assertions and apprehension at the hearing of the main appeal we find no material before us, at the moment, that demonstrates that in all probability the allegations that the 2nd respondent has a personal relationship with the judge and always leans in his favour is true. Further, we are not told of any irreversible consequence or onerous hardship that may be visited on the applicant if the judge were to entertain the matter to conclusion, and which cannot be remedied by way of an appeal. In a word we are not persuaded that this is one of the rare and exceptional instances when the drastic order of stay of proceedings is deserved. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1219/eng@2026-06-26 3

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15. We find no merit in the notice of motion dated 25th November 2025, which we hereby dismiss with costs to the 1st and 2nd respondents. DATED AND DELIVERED AT NAIROBI THIS 26TH DAY OF JUNE 2026. F. TUIYOTT .................................... JUDGE OF APPEAL NDUMA NDERI .................................... JUDGE OF APPEAL P. LILAN .................................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed Deputy Registrar https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1219/eng@2026-06-26 4

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