Mohamed Juma Nyuni (Suing on behalf of himself and 20 other residents of Mwaembe Village) v Rojo Kassim, Flavio Sogno & Enrico Sogno
The bottom line
#Kenya's Environment and Land Court reinstated a dismissed village land suit, but only after the residents pay Kshs. 250,000 in thrown-away costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff has established grounds warranting the reinstatement of the suit dismissed on 20th March 2025
- 2.Whether the Plaintiff has established grounds for review of the orders of 20th March 2025 under Order 45 Rule 1 of the Civil Procedure Rules, whether on the ground of an error apparent on the face of the record, the discovery of new and important evidence, or any other sufficient reason
- 3.Whether the Court should impose conditions, including the payment of thrown-away costs, upon any order of reinstatement
- 4.What orders should be made as to the costs of the application
Key legal issues
#Reinstatement of suit dismissed for want of prosecution
The Court exercised its discretion under Order 12 Rule 7 in favour of reinstatement, finding the plaintiff was not wholly indolent, moved expeditiously, changed advocates, and the suit concerns land and constitutionally protected rights.
The Court balanced the constitutional right to be heard under Article 50(1) against the public interest in expeditious litigation. Although the plaintiff produced no documentary proof of the alleged communication breakdown with former counsel, the application was filed promptly, the dispute touches proprietary and community rights, and the default was not deliberate or contumelious. Guided by Shah v Mbogo, Chemwolo, Belinda Murai and the caution in Habo Agencies, the Court found reinstatement just.
Review under Order 45 Rule 1 - error apparent on the face of the record
Not established; the dismissal was a proper exercise of discretion with no self-evident error or omission.
Applying National Bank of Kenya v Ndungu Njau and Nyamogo & Nyamogo v Kogo, the Court held that an error apparent must be self-evident and need no elaborate argument. The dismissal for want of prosecution, in the face of the plaintiff's repeated failure to prosecute, was a proper exercise of discretion; hence the review ground failed.
Review - discovery of new and important evidence
Not established; due diligence was not demonstrated and the documents were public records accessible earlier.
Applying the Mativo J test in Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya, new material must be such as could not have been discovered with due diligence. The plaintiff did not explain why court pleadings and public records could not have been obtained earlier; the ground of discovery of new and important evidence therefore failed.
Conditions on reinstatement - thrown-away costs
The Court imposed Kshs. 250,000.00 as thrown-away costs payable to the 3rd Defendant within 30 days as a condition precedent to reinstatement.
Order 12 Rule 7 permits setting aside dismissal 'upon such terms as may be just'. The 3rd Defendant's airfare for the aborted 20th March 2025 hearing was a direct consequence of the plaintiff's default. The Court imposed a fair and proportionate condition, tempered because the plaintiff sues on behalf of 21 village residents.
Costs of the application
Costs of the application held in abeyance - costs in the cause.
Although costs follow the event under Section 27(1) of the Civil Procedure Act, the Court found that reinstatement was necessary to vindicate the plaintiffs' constitutional right to a fair hearing under Articles 25(c) and 50(1); the balance of justice required costs to await the suit's final determination.
Legal principles established
#- Dismissal of a suit is a draconian measure to be resorted to only in the clearest of cases; the discretion to reinstate must balance the right to be heard against the public interest in expeditious litigation and protection of the opposite party from prejudice.
- A litigant cannot simply blame counsel without explaining the action the litigant took to show he did not condone or collude in the delay.
- An error apparent on the face of the record must be self-evident and not require elaborate argument to establish.
Court orders
#- 1.The Further Amended Notice of Motion application dated 25th July 2025 partially allowed
- 2.The order of 20th March 2025 dismissing the Plaintiff's suit for want of prosecution set aside and the suit reinstated for hearing on its merits
- 3.Plaintiff to pay the 3rd Defendant Kshs. 250,000.00 as thrown-away costs within 30 days as a condition precedent to reinstatement
- 4.Plaintiff to file and serve additional documents including supplementary documents within 21 days
- 5.Plaintiff to fix the suit for hearing within 60 days failing which the suit shall stand dismissed with costs
- 6.Prayer for review under Order 45 Rule 1 declined
- 7.Prayer for stay of taxation of the Bill of Costs dated 3rd April 2025 overtaken by events, the bill having been taxed and a Certificate of Taxation issued
- 8.Costs of the application to be costs in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 40, 50(1), 159 of the Constitution; Sections 1A, 1B, 3A, 63(e), 80 of the Civil Procedure Act, Cap. 21; Order 12 Rule 7, Order 45 Rule 1 of the Civil Procedure Rules, 2010
Relief refused
#Review of the orders of 20th March 2025 under Order 45 Rule 1
No error apparent on the face of the record; the dismissal was a proper exercise of discretion, and no due diligence shown regarding the purported new evidence
Stay of taxation of the Bill of Costs dated 3rd April 2025
Overtaken by events; the bill had been taxed and a Certificate of Taxation issued on 28th August 2025
Costs
Costs of the application shall be costs in the cause.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
THAT the order of this Court made on 20 th March, 2025 dismissing the Plaintiff's suit for want of prosecution is hereby set aside, and the suit is hereby reinstated for hearing and determination on its merits
The Plaintiff shall pay to the 3rd Defendant the sum of Kenya Shillings Two Fifty Thousand (Kshs. 250,000.00/=) as thrown-away costs, WITHIN THIRTY (30) DAYS of the date of this ruling
THAT the Further Amended Notice of Motion application dated 25th July, 2025 be and is hereby partially ALLOWED.
THAT the costs of this application shall be costs in the cause.
dismissal of suits is a draconian measure which ought to be resorted to only in the clearest of cases
Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on its merits.
There is no greater prejudice in starting the case de novo than denying the appellant the right to be heard.
Issues in the judgment
#Anomalous drafting artifact appears mid-affidavit text
Chronology inconsistent: ruling reserved in 2025 but delivered 2026 while motion is dated 25th July 2025 and submissions dated October 2025
Thrown-away costs awarded (Kshs. 250,000) exceed the pleaded airfare (Kshs. 135,842) without justification
Conclusions attribute reinstatement partly to 'new evidence' despite finding that review ground unestablished
Conclusion cites Chemwolo with wrong citation '[1982-88] KAR 103' differing from the correct citation used earlier
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Juma Nyuni (Suing on behalf of himself and 20 other residents of Mwaembe Village) v Rojo Kassim, Flavio Sogno & Enrico Sogno", Case Analysis (2026). ELCLC Case No. E024 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6198/eng@2026-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.