https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4555

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT SIAYA** **ELC CASE NO. E018 0F 2024** **CHARLES OCHIENG NDIGA .......................................................PLAINTIFF** **-VERSUS-** **NEREAH MICHAEL SAID ............................... 1ST DEFENDANT/APPLICANT** **KENYA COMMERCIAL BANK …………………………...…… 2ND DEFENDANT** **RULING** **Introduction** 1 The subject of this ruling is the Notice of Motion application dated **8th October 2025** by the 1st Defendant/Applicant. The Applicant principally seeks leave of this Court to appeal against the Ruling delivered on **25th September 2025** dismissing her application for recusal of the trial Judge and, pending the hearing and determination of the intended appeal, an order staying all further proceedings in this suit. 2 The application is premised on the grounds on its face, the Supporting Affidavit sworn by the Applicant on 8th October 2025, and the Further Affidavit sworn on 29th May 2026. 3 The Applicant seeks the following orders 1. THAT out of abundance of caution, the Honourable Court be pleased to grant leave to the 1st Defendant/Applicant to appeal against the ruling and order made on 25th September, 2025. 2. THAT upon grant of prayer (1) above, this Honourable Court be pleased to order stay of further proceeding in this matter pending the hearing and determination of the intended appeal. 3. THAT the costs of the application be provided. **Background** 4 The Plaintiff instituted the present proceedings against the 1st Defendant and the 2nd Defendant, Kenya Commercial Bank, seeking various reliefs relating to ownership and interests over the suit property. During the pendency of the proceedings, the 1st Defendant developed apprehension regarding the continued participation of the trial Judge in the proceedings. Consequently, she filed an application dated 10th February 2025 seeking the recusal of the Court from hearing and determining the suit. 5 The recusal application was founded upon apprehension that previous interaction by the Court with documents filed *in* ***Kwale ELC No. E144 of 2021*** had created circumstances giving rise to a reasonable apprehension of bias, conflict of interest and lack of impartiality. The Applicant maintained that those circumstances undermined public confidence in the fairness of the proceedings. 6 Upon hearing the parties, this Court delivered a ruling on the same on 25th September 2025 dismissing the application for recusal after finding that the Applicant had failed to establish sufficient grounds warranting the disqualification of the Court. 7 Dissatisfied with that determination, the Applicant filed a Notice of Appeal within the required statutory period of 14 days. However, out of abundance of caution the applicant has considered it prudent to seek leave of this Court thus the present application. 8 In the affidavits sworn on **8th October 2025** and 29**th May 2026** the applicant avers that she remains dissatisfied with the ruling dismissing her recusal application and believes that the intended appeal raises substantial constitutional and legal questions deserving consideration by the Court of Appeal. 9 The Applicant depones that the impugned ruling failed to appreciate the constitutional threshold governing reasonable apprehension of bias and judicial impartiality. She contends that the Court erred in concluding that no sufficient evidence existed demonstrating conflict of interest despite acknowledging prior interaction with documents arising from **Kwale ELC No. E144 of 2021**. 10 The Applicant further avers that immediately after delivery of the ruling, she instructed her advocates to pursue an appeal. A Notice of Appeal was subsequently filed within the prescribed period. However, acting out of abundant of caution and upon legal advice, she now seeks leave of this Court because the impugned order is not among those appealable as of right under ***Order 43 Rule 1 of the Civil Procedure Rules****.* 11 The Applicant maintains that the intended appeal is arguable and raises weighty constitutional questions touching on Article 50(1) of the Constitution, judicial independence, judicial impartiality and public confidence in the administration of justice. She insists that these issues cannot properly be described as frivolous or vexatious. 12 Regarding the prayer for stay of proceedings, the Applicant contends that unless the proceedings are halted, the intended appeal will be rendered nugatory because the trial will continue before the very judicial officer whose continued participation forms the subject of the appeal. She argues that should the Court of Appeal ultimately reverse the ruling on recusal, any proceedings conducted in the meantime may become futile, thereby occasioning unnecessary expenditure of judicial time and resources. 13 The Applicant further avers that the present application was filed promptly, within approximately two weeks after delivery of the impugned ruling, thereby demonstrating diligence and good faith. She emphasizes that the Respondent has not identified any specific prejudice incapable of compensation by an award of costs should the orders sought be granted. 14 The Applicant therefore urges this Court to exercise its discretion in her favour and allow the application. **The Respondent's Case** 15 The Plaintiff/Respondent opposes the application through the Replying Affidavit sworn on **20th April 2026**. The Respondent states the application is incompetent, misconceived, devoid of merit and amounts to an abuse of the court process. 16 The Respondent avers that the present application is nothing more than an attempt by the Applicant to delay the hearing and determination of the substantive suit. He contends that the Applicant has consistently engaged in interlocutory applications whose effect has been to postpone the hearing of the dispute instead of allowing the Court to determine the issues on their merits. 17 The Respondent further depones that immediately after the delivery of the ruling on **25th September 2025**, the Applicant proceeded to file a Notice of Appeal. According to the Respondent, having already invoked the appellate process, the Applicant cannot subsequently return to this Court seeking leave to appeal. He maintains that the Applicant has fundamentally misconceived the applicable appellate procedure and that the application is therefore legally untenable. 18 It is further the Respondent's position that the Applicant has failed to annex a draft Memorandum of Appeal or otherwise to demonstrate that the intended appeal raises serious or arguable questions deserving consideration by the Court of Appeal. In his view, the allegations concerning judicial bias, conflict of interest and impartiality were comprehensively considered and determined by this Court and the Applicant merely seeks to reopen matters already conclusively decided. 19 On the prayer for stay of proceedings, the Respondent submits that such an order constitutes an extraordinary remedy which should only be granted in exceptional circumstances. He argues that the Applicant has neither demonstrated substantial prejudice nor shown that continuation of the proceedings would render the intended appeal nugatory. 20 The Respondent further avers that the Constitution guarantees every litigant the right to expeditious disposal of disputes under **Article 159(2)(b)** and that granting the orders sought would unnecessarily prolong litigation to his detriment. He therefore urges this Court to safeguard the constitutional imperative against delay by declining the prayer for stay of proceedings. 21 Finally, the Respondent submits that the Applicant has failed to demonstrate any exceptional circumstances warranting the exercise of this Court's discretion in her favour and prays that the entire application be dismissed with costs. **SUBMISSIONS** **Applicant's Written Submissions** 22 The Applicant submissions identify two principal issues for determination, namely: - 1. Whether the Applicant has demonstrated an arguable appeal warranting the grant of leave to appeal against the ruling delivered on 25th September 2025. 2. Whether the Applicant has satisfied the legal threshold for the grant of an order staying further proceedings pending the hearing and determination of the intended appeal. 23 On the first issue, it is submitted that the impugned ruling concerns the refusal of an application seeking the recusal of the trial Judge. Counsel argues that such an order is not among those appealable as of right under **Order 43 Rule 1 of the Civil Procedure Rules**, and consequently, leave of the Court is required before an appeal can properly be instituted. Reliance is placed upon **Section 75 of the Civil Procedure Act** and **Order 43 Rule 1(2)** of the Civil Procedure Rules. 24 That the Respondent’s reliance on the Applicant's filing of a Notice of Appeal is misplaced. It is argued that the filing of a Notice of Appeal, undertaken out of caution, cannot oust the jurisdiction of this Court to grant leave where the law requires such leave. According to counsel, the Applicant properly invoked the jurisdiction of this Court and the Respondent's objections are without legal foundation. 25 It is asserted that the intended appeal is plainly arguable because it raises constitutional questions concerning judicial impartiality, conflict of interest, reasonable apprehension of bias and the right to a fair hearing under **Article 50(1)** of the Constitution. Reliance is placed in ***Twaha & Another v Gumo (Civil Appeal E011 of 2023) [2023] KEHC 18625 (KLR)*** for the proposition that an arguable appeal need not ultimately succeed and that even a single bona fide ground of appeal is sufficient to justify leave. 26 Counsel also relies upon ***Trust Bank Limited v Paramount Universal Bank Limited & 2 Others [2009] eKLR***, where the Court held that a litigant should not be unnecessarily denied the opportunity to exercise the statutory right of appeal where leave is required. It is submitted that no prejudice would be suffered by the Respondent if leave were granted. 27 On the prayer for stay of proceedings, learned counsel submits that this Court possesses jurisdiction under **Section 3A of the Civil Procedure Act** and **Order 42 Rule 6 of the Civil Procedure Rules** to stay proceedings pending appeal where the interests of justice so require. 28 It is urged that unless proceedings are stayed, the intended appeal challenging the refusal of recusal will be rendered nugatory because the proceedings will continue before the same judicial officer whose continued participation is the subject of the appeal. Counsel submits that if the Court of Appeal eventually allows the appeal, all proceedings conducted in the interim may have to be nullified, thereby occasioning a substantial waste of judicial time and resources. To buttress this position counsel draws from the case of Attorney ***General v Pascal Barasa Olaimo & 75 Others [2020] KECA 164 (KLR)****,* ***Base Titanium Limited v Jin [2024] KEELC 14019 (KLR)*** *and* ***Global Tours & Travels Limited, Nairobi HCCC Winding Up Cause No. 43 of 2000****,* where courts recognized that stay of proceedings may be appropriate where continuation of proceedings would render an intended appeal academic or lead to unnecessary wastage of judicial resources. **Respondent's Written Submissions** 29 The Respondent submissions identify substantially the same issues for determination. 30 On the prayer for leave to appeal, counsel submits that the Applicant has failed to establish any sufficient basis for the exercise of this Court's discretion. It is argued that the Applicant has already filed a Notice of Appeal and cannot thereafter seek leave to appeal as an afterthought. Counsel maintains that the present application demonstrates a fundamental misunderstanding of the applicable appellate procedure. 31 It is submitted that the intended appeal is frivolous and discloses no arguable question deserving consideration by the Court of Appeal. According to the Respondent, the issues concerning recusal, judicial impartiality and conflict of interest were exhaustively considered by this Court in the ruling delivered on **25th September 2025**, and the Applicant merely seeks to relitigate issues already conclusively determined. 32 Regarding the prayer for stay of proceedings, relying on ***Global Tours & Travels Limited****,* ***Kenya Wildlife Service v James Mutembei [2019] eKLR****,* and **Halsbury's Laws of England**, it is submitted that stay of proceedings constitutes an exceptional remedy which ought only to be granted in the clearest of cases. 33 It is contended that the Applicant has failed to demonstrate that continuation of the proceedings would occasion irreparable prejudice or render the intended appeal nugatory. Instead, granting stay would occasion substantial prejudice to the Respondent by delaying the hearing of the substantive dispute and undermining the constitutional requirement that justice be administered expeditiously. **ANALYSIS AND DETERMINATION** 34 I have considered the application, the Supporting Affidavit, the Replying Affidavit, the Further Affidavit, the rival written submissions filed by learned counsels and , the authorities cited by both parties. 35 Arising from the above it is my view three (3) issues commend for determination: 1. Whether the Applicant has established sufficient grounds to warrant the exercise of this Court's discretion in granting leave to appeal against the ruling delivered on 25th September 2025. 2. Whether the Applicant has satisfied the legal threshold for the grant of an order of stay of proceedings pending the hearing and determination of the intended appeal. 3. Who should bear the costs of the application? **Whether the Applicant has established sufficient grounds to warrant the exercise of this Court's discretion in granting leave to appeal against the ruling delivered on 25th September 2025.** 36 The application is brought under the provisions of Order 43 Rule 1(2) of the Civil Procedure Rules and Section 75 of the Civil Procedure Act, Cap 21. **37 Section 75** reads thus; - ***“An appeal shall lie as of right from the following orders, and shall also lie from any other order with the leave of the court making such order or of the court to which an appeal would lie if leave were granted:*** ***(1)(a) an order superseding an arbitration where the award has not been completed within the period allowed by the court;*** ***(b) an order on an award stated in the form of a special case;*** ***(c) an order modifying or correcting an award;*** ***(d) an order staying or refusing to stay a suit where there is an agreement to refer to arbitration;*** ***(e) an order filing or refusing to file an award in an arbitration without the intervention of the court;*** ***(f) an order under section 64;*** ***(g) an order under any of the provisions of this Act imposing a fine or directing the arrest or detention in prison of any person except where the arrest or detention is in execution of a decree;*** ***(h) any order made under rules from which an appeal is expressly allowed by rules.*** ***(2) No appeal shall lie from any order passed in appeal under this section.”*** 38 Further **Order 43** of the **Civil Procedure Rules** provides as follows: **“1. (1) An appeal shall lie as of right from the following Orders and rules *under the provisions of section 75 (1) (h) of the Act—*** ***(a) Order 1 (parties to suits);*** ***(b) Order 2 (pleadings generally);*** ***(c) Order 3 (frame and institution of suit);*** ***(d) Order 4, rule 9 (return of plaint);*** ***(e) Order 7, rule 12 (exclusion of counterclaim);*** ***(f) Order 8 (amendment of pleadings);*** ***(g) Order 10, rule 11 (setting aside judgment in default of appearance).*** ***(h) Order 12, rule 7 (setting aside judgment or dismissal for non-attendance);*** ***(i) Order 15, rules 10, 12 and 18 (sanctions against witnesses and parties in certain cases);*** ***(j) Order 19 (affidavits);*** ***(k) Order 22, rules 25, 57, 61(3) and 73 (orders in execution);*** ***(l) Order 23, rule 7 (trial of claim of third person in attachment of debts);*** ***(m) Order 24, rules 5, 6 and 7 (legal representatives);*** ***(n) Order 25, rule 5 (compromise of a suit);*** ***(o) Order 26, rules 1 and 5(2) (security for costs);*** ***(p) Order 27, rules 3 and 10 (payment into court and tender);*** ***(q) Order 28, rule 4 (orders in proceedings against the Government);*** ***(r) Order 34 (interpleader);*** ***(s) Order 36, rules 5, 7 and 10 (summary procedure);*** ***(t) Order 39, rules 2, 4 and 6 (furnishing security);*** ***(u) Order 40, rules 1, 2, 3, 7 and 11 (temporary injunctions);*** ***(v) Order 41, rules 1 and 4 (receivers);*** ***(w) Order 42, rules 3, 14, 21, 23 and 35 (appeals);*** ***(x) Order 45, rule 3 (application for review);*** ***(y) Order 50, rule 6 (enlargement of time);*** ***(z) Order 52, rules 4, 5, 6 and 7 (advocates);*** ***(aa) Order 53 (judicial review orders).*** ***a. An Appeal shall lie with the leave of the court from any other order made under these Rules.”*** ***(3) An application for leave to appeal under section 75 of the Act shall in the first instance be made to the court making the order sought to be appealed from, either orally at the time when the order is made, or within fourteen days from the date of such order.*** ***(4) Save where otherwise expressly provided in this rule, “order” includes both an order granting the relief applied for and an order refusing such relief.”*** 39 In the case of **Simon Kalachu v Yuasa International Limited & another [2021] eKLR,** the Court held that: ***“Order 43 of the Civil Procedure Rules gives a long list of orders from which an appeal lies from as of right. It therefore follows that if one wishes to appeal on an order that is not on the list under Order 43 of the Civil Procedure Rules, one must seek leave of court that made that very Order. The said Order 43 is the procedural Order for Section 75 of the Civil Procedure Act”.*** 40 Further, in the case of **Peter Nyaga Muvake V Joseph Mutunga [2015] eKLR**, the Court stated as follows: ***“…Section 75 of the Civil Procedure Act Cap 21, stipulates the thematic orders from which appeals lie as of right. Appeals from other orders lie only with leave of the court. An order made under Order 42 Rule 6 is not exempt from the requirement of leave. It does not lie as of right. In this case, the applicant did not seek or obtain leave to appeal against the decision of Mabeya J. as the effect of this is that no appeal lies without such leave, this Court would have no jurisdiction to entertain, hear or determine the applicant’s appeal. Without leave of the High Court, the applicant was not entitled to give notice of appeal. Where, as in this case, leave to appeal is necessary by dint of Section 75 of the Civil Procedure Act and Order 42 of the Civil Procedure Rules, the procurement of leave to appeal is a sine qua non to the lodging of the notice of appeal. Without leave, there can be no valid notice of appeal. And without a valid notice of appeal, the jurisdiction of this court is not properly invoked.”*** 41Further, in the case of***Direct line Insurance Co. Ltd v Onyango (Civil Appeal E345 of 2022) [2022],***the Court declared as follows: ***“It is then clear that under order 43(2) an appeal shall lie with the leave of the court from any other order made under the rules. This means that unless the order sought to be appealed against falls under the orders which are appealable as of right under order 43(1) leave to appeal must be obtained before such an appeal can be preferred. (See Mutungi J in Serephen Nyasani Menge v Rispah Onsase [2018] eKLR) ... The appellants ought to have sought leave before filing this appeal. In Stephen Omondi Juma v Sprocer Awuor Rabote [2022] eKLR, Aburili J was faced with a similar issue as the issue before me. She cited a Court of Appeal decision and stated that: “As was emphatically stated in Nyutu Agrovet Ltd vs Airtel Networks Ltd [2015] eKLR, a right of appeal only lies where the law specifically provides for such right to accrue and where no such right is automatic, then a party seeking to appeal must first obtain leave of court. Further, that the right of appeal is conferred by statute and cannot be inferred. It follows that where a right of appeal does not lie automatically, a party can only invoke the provisions of section 75 of the Civil Procedure Act and order 43 of the Civil Procedure Rules, to seek and obtain leave from the lower court to appeal to this court.”*** 42 The Court whose leave is sought to file an Appeal is required to satisfy itself that the prospective appeal raises issues worthy of judicial consideration. (See the holding in the case of **Sango Bay Estates and Another V Dresdner Bank [1971] EA 17).** 43 The courts have consistently held that one arguable issue is sufficient, and the issue does not need to succeed on Appeal as illustrated herebelow; - 44 In ***Ahmed Musa Ismael v Kumba Ole Ntamorua & 4 others [2014] eKLR,*** the Court reasoned as follows: ***“An arguable appeal need not raise a multiplicity of explorable points, a single one would suffice. That point or points need not be such as must necessarily succeed on full consideration of the appeal – it is enough that it is a point on which there can be a bona fide question to be explored and answered within the context of an appellate adjudication.”*** 45 In the case of **Cabinet Secretary Ministry of Health v Aura & 13 others (Civil Application E583 of 2023) [2024] KECA 2 (KLR),** the Court held as follows: ***“An arguable appeal was not one that must succeed and an applicant need not proffer a multiplicity of arguable points. One was sufficient. For a point to be arguable it needed merely to raise a bona fide point of law or fact sufficient to call for an answer from the respondent and was worthy of the court’s consideration. Moreover, whereas such arguable points should ideally and conveniently be expressed in the form of a draft memorandum of appeal, there was no rule that it must be so. One could raise such grounds on the face of the motion and even in the supporting affidavit. The appeal was eminently arguable.”*** 46 An order declining an application for the disqualification and/or recusal of a Judge is not among the orders enumerated as appealable as of right. It follows, and I so find, that the Applicant correctly apprehended that leave of this Court is a jurisdictional prerequisite to her intended appeal. The applicant is not seeking extension of time. The application concerns whether the Applicant should be granted an opportunity to challenge that decision before the Court of Appeal which leave will validate the notice. 47 That being the position, the Respondent’s contention anchored on Rule 61 of the Court of Appeal Rules and the decision in ***Kiiru – Versus - Mugiyu (Supra)*** is, with respect, misconceived. For the same reason, the conditions enunciated in ***Leo Sila Mutiso – Versus - Hellen Wangari Mwangi (Supra),*** which govern applications for extension of time, are inapplicable to the application before me. 48 It is contended by the Respondent that the lodging of the Notice of Appeal rendered the present application incompetent or otiose. I will respectfully differ with this position. What is important in my view is that leave is a pre-requisite, it must be sought. In this case it could only be sought by way of application. I therefore find that the application as framed is properly before this Court. 49 Having settled the question of leave to appeal, I will now consider the intended appeal. We have seen from precedents cited an arguable appeal need not be one that will succeed; it suffices that it is arguable and not frivolous, that is to say, that it raises at least one bona fide point deserving of the consideration of the appellate court. This was the holding in ***Twaha & Another – Versus - Gumo (Supra***) relied upon by the Applicant, where the court underscored that a single prima facie arguable ground is sufficient. Similarly, in ***Trust Bank Limited – Versus - Paramount Universal Bank Limited & 2 Others (Supra)***, the court observed that a party’s right of appeal ought not to be clogged or taken away where no real reason exists to withhold leave and no prejudice would be suffered by the opposite party. 50 The application is impugned for absence of a Memorandum of Appeal. However guidance is drawn from **Cabinet Secretary Ministry of Health v Aura & 13 others (Civil Application E583 of 2023) (supra)** where the court affirmed that grounds listed in the supporting affidavit or face of the application would suffice. The Applicant’s draft grounds of appeal, are set out at paragraph 6 of the Supporting Affidavit. I think the invocation of Article 50(1) of the Constitution of Kenya, 2010 could merit consideration by the Appellate Court. Whether or not those grounds will ultimately commend themselves to the Court of Appeal is not for me to deduce or pronounce. 51 I further take into account that the Notice of Motion is dated 8th October, 2025, a mere thirteen (13) days after the delivery of the impugned ruling. The Applicant cannot, on that chronology, fairly be accused of indolence in seeking leave. 52 I think I have said enough to show why I should exercise the discretion donated by Section 75(1)(h) of the Civil Procedure Act and Order 43 Rule 1(2) of the Civil Procedure Rules, I find and hold that the Applicant has made out a case for the grant of leave to appeal. **Whether the Applicant has satisfied the legal threshold for the grant of an order of stay of proceedings pending the hearing and determination of the intended appeal.** 53 The power of this Court to grant an order for stay of proceedings pending appeal is not in dispute. Such jurisdiction is derived from Section 6 of the Civil Procedure Act, Cap. 21, Order 42 Rule 6 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act and is further anchored in this Court’s inherent jurisdiction to make such orders as may be necessary for the ends of justice. 54 The principles that guide a court in determining whether to grant a stay of proceedings are now well settled. Indeed, stay of proceedings is a drastic remedy and must be exercised sparingly and judiciously. The Court must weigh competing interests and determine whether it is in the interests of justice to halt the proceedings. 55 In the case of ***Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000,***the court held as follows; ***“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice …... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.”*** 56 Arising from the above therefore the court must consider Whether the Applicant has established that he/she has a prima facie arguable appeal; Whether the application was filed expeditiously and Whether the Applicant has established sufficient cause to the satisfaction of the Court that it is in the interest of justice to grant the orders sought. 57 In the case of ***“Christopher Ndolo Mutuku & Another -Verusu - CFC Stanbic Bank Limited (2015) eKLR****,* the Court observed that; ***“…what matters in an application for stay of proceedings pending appeal is the overall impression the Court makes out of the total sum of the circumstances of each case, which should arouse almost a compulsion that the proceedings should be stayed in the interest of justice…”*** 58 The Halsbury’s Law of England 4th Edition Vol. 37 pages 330 and 332 states that; ***“The stay of proceedings is a serious, grave, and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.”*** ***This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.*** ***“It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the Plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.”*** 59 What then are the peculiar circumstances of the present case? The intended appeal does not attack some peripheral interlocutory order; it attacks the refusal of this Court to disqualify itself. Its subject matter is the very composition and impartiality of the tribunal that would conduct the trial. The issues require this Court to undertake a delicate balancing exercise between two equally protected constitutional values. On the one hand lies the Applicant's constitutional right to a fair hearing before an independent and impartial court guaranteed under **Article 50(1)** of the Constitution, together with the right to pursue an appeal where the law permits. On the other hand, lies the Respondent's equally protected right to have his dispute determined expeditiously without undue delay as required under **Article 159(2)(b)** of the Constitution. 60 Should this Court decline a stay, proceed to hear the suit to conclusion, and should the Court of Appeal thereafter hold that the recusal application ought to have been allowed, the entirety of the trial and any resultant judgment would stand vitiated, the proceedings would have to be taken de novo and most likely before another Judge, and the scarce judicial time expended would have been irretrievably wasted. Conversely, should the stay be granted and the appeal ultimately fail, the Respondent’s principal loss is one of time, which is capable of mitigation through conditions on the conduct of the substantive proceedings and, compensation by way of costs. I would still be guided by the holding in ***Kavii – Versus - Base Titanium Limited & 2 Others (Supra).*** 61 With regard to optimum utilization of time in the instant case, the determination of the intended appeal will conclusively lay to rest the question of whether this Court should continue presiding over the suit – a question which, if left hanging over the proceedings, would cast a lingering shadow over whatever outcome the trial presided by this court yields. 62 I have weighed the Respondent’s anxiety over delay, and contention that the Applicant has filed application after application. This suit was filed in the year 2024 and is yet to proceed to hearing. The apprehension in my view could be real but I think at the end of the day justice must not only be done but seen to be done. Therefore, the answer lies not in declining the stay and pressing on with a trial conducted under a cloud, but in granting the stay on terms that compel the expeditious prosecution of the intended appeal, and in reserving to the Respondent the liberty to move the Court should the Applicant fail to prosecute the appeal with diligence. On a weighing of the pros and cons, the scales tilt in favour of the grant of a conditional stay. **Who bears the costs of the Notice of Motion application?** 63 It is now well established that the issue of costs is a matter within the discretion of the Court, exercised judicially and guided by the principle that costs follow the event. This principle is firmly anchored in Section 27(1) of the Civil Procedure Act, Cap. 21, Laws of Kenya. Also see the decision of the Supreme Court in ***Jasbir Rai Singh v Tarchalan Singh, eKLR (2014)*** *and* ***Cecilia Karuru Ngayo v Barclays Bank of Kenya Limited, eKLR (2014)***. 64 In the circumstances, I find that the fair and just order is that the costs of the application do abide the outcome of the intended appeal. 65 The upshot of the foregoing is that the Notice of Motion application dated 8th October, 2025 by the 1st Defendant/Applicant is disposed in the following terms; - 1. **THAT leave be and is hereby granted to the 1st Defendant/Applicant to appeal to the Court of Appeal against the ruling and order of this Honorable Court delivered on 25th September, 2025;** 2. **THAT there be and is hereby ordered a stay of further proceedings in this suit pending the hearing and determination of the intended appeal, on condition that the 1st Defendant/Applicant files the appeal within 60 days from the date of this ruling;** 3. **THAT in default of compliance with order (2) above, the stay of proceedings 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. **THAT the costs of the application shall abide the outcome of the intended appeal.** **Delivered** and **Dated** This **16th Day** of **July 2026** **HON. LADY JUSTICE A.E. DENA** **JUDGE** **16/7/2026** **Ruling delivered virtually through Microsoft teams Video Conferencing Platform in the presence of:** Mr. Abidha for the Applicant/1st Defendant Mr. Ogola Holding brief for Mr Otieno for the Respondent/Plaintiff Court Assistant – Abiud Wekesa