Mohamed Juma Nyuni (Suing on behalf of himself and 20 other residents of Mwaembe Village) v Rojo Kassim, Flavio Sogno & Enrico Sogno

1. This Honourable Court is called upon to determine the Further Amended Notice of Motion application dated 25 th July, 2025 filed by Mohamed Juma Nyuni (suing on behalf of himself and 20 Others residents of Mwaembe Village), the Plaintiff/Applicant herein. It was brought under the provisions of Articles 40, 50(1), and 159 of the Constitution of Kenya, 2010, together with Sections 1A, 1B, 3A, 63(e), and 80 of the Civil Procedure Act, Cap. 21, and Order 12 Rule 7, Order 22 Rules 22 & 25, and Order 45 Rule 1 of the Civil Procedure Rules, 2010. The Applicant sought, inter alia, orders for re - instatement of the suit dismissed on 20th March 2025, review of the dismissal orders, and leave to file supplementary documents to prosecute the matter on its merits. 2. Equally before the Court was the Replying Affidavit sworn on 9 th June, 2025 by Enrico Sogno, the 3rd Defendant, opposing the application on grounds that it was misconceived, dilatory, procedurally incompetent, and an abuse of the process of this Honourable Court. The Defendants contend that the Applicants have been indolent, failed to file supporting documents despite numerous opportunities, and are intent on frustrating the Respondents through repeated applications. RULING: ELCLC CASE NO. E024 OF 2024 Page 2 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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3. In addition, the Court is seized of the Supporting Affidavit sworn on 10th April, 2025 and Supplementary Affidavit sworn on 25 th July 2025 by Mohamed Juma Nyuni, annexing draft supplementary documents and asserting that the dismissal was occasioned by mistake and negligence of former counsel, and that new evidence has been obtained showing the suit land is subject to other litigation, thereby implicating the Plaintiffs’ constitutional right to property under the provision of Article 40. 4. Upon service of the Plaintiff’s application, the Defendants opposed it through the said Replying Affidavit and submissions, while the Plaintiff relied on his Supporting and Supplementary Affidavits, asserting that reinstatement is necessary to protect proprietary interests of the residents of Mwaembe Village and to ensure the matter is adjudicated on its merits. 5. Therefore, this ruling addresses the merits of the Plaintiff’s motion for reinstatement, being the pith and substance of the matter herein, the Replying Affidavit filed by the Defendants, and the rival submissions of both parties, guided by the applicable statutory provisions and judicial precedents. II. The case by the Plaintiff/Applicant 6. The Plaintiff/Applicant sought the following orders: - RULING: ELCLC CASE NO. E024 OF 2024 Page 3 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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a) Spent. b) Spent. c) That the Law firm of Messrs. B. MAITHA & Co. Advocates be allowed by an order of this court to come on record for the Plaintiff/Applicant. d) That the court be pleased to stay the taxation of the Bill of costs dated 3rd April, 2025 filed by 1st and 3rd Defendants pending before the Deputy Registrar Kwale ELC temporarily until this Application is heard and determined. e) That the Honourable Court be pleased to grant Orders in the realm and nature of reinstatement of the Plaintiff's Suit in essence the Plaint filed pending any further before directions the Honourable as scheduled Court by the Honourable Court. f) That upon grant of prayer (2) herein above the Honourable Court be pleased to grant Orders in the realm and nature of substantive review of the Orders issued on the 20 th March, 2025 and substitute the same with an Order reopening the Plaintiff's Case for the said Plaintiff to prosecute his case, there being an error apparent on the face of the Honourable Court record, further new evidence that would permit the grant of an Order of Review and that costs of the suit to abide the outcome of the reinstated suit. g) That upon reinstatement of the suit, the court be pleased to issue strict timelines for the Plaintiff to file additional documents and prepare for the hearing. h) That the Honourable Court be pleased to issue such further Orders in the interest of justice and pertinent to the suit herewith i) That the costs of this application be provided for. 7. The application by the Applicants was premised on the grounds, facts and testimony on the face of the application and further RULING: ELCLC CASE NO. E024 OF 2024 Page 4 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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supported by the 15 paragraphed annexed affidavit of MOHAMED JUMA NYUNI, the Plaintiff/ Applicant herein. The Affiant averred that:i. He was aware of the proceedings herein which had been scheduled for main hearing on the 20th day of March, 2025, but the same did not proceed due to lack of preparation by his former Advocates. ii. On the very day as scheduled by the Honourable Court, he was not aware that the matter had been slated for hearing since his then Advocate had not briefed him of the same. iii. He later learnt of the dismissal of his Co-Plaintiffs’ and his own case without being granted audience by the Honourable Court. iv. He had been informed by his Advocates on record, whose advice he verily believed to be true, that there was an error apparent on the face of the Honourable Court record which had been occasioned by mistake of Counsel who had failed to keep him appraised of the proceedings of the suit. v. Taking cue from the aforesaid, he remained steadfast that he had been turned away from the seat of justice through no fault of his own, and he beseeched the Honourable Court to reconsider its stance since atHere’s your passage transposed RULING: ELCLC CASE NO. E024 OF 2024 Page 5 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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into past tense, maintaining the masculine gender and the affidavit style you use in your pleadings: vi. It had been of concern that the matters before the Honourable Court were weighty, and that there had been need for examination and possibly cross-examination of the evidence tendered before the Honourable Court, which opportune moment had been denied by the stroke of the pen due to mistake of Counsel inadvertently visited upon an innocent litigant desirous of having his case heard. vii. Further the disenfranchisement of rights over the suit property resultant from the dismissal order far outweighed the consideration of the urgent need, and with tremendous respect he had urged the Honourable Court to reopen the case and by every means readmit the Plaint as part of the Honourable Court’s record, which would then allow that of his Co-Plaintiffs/Applicants and his participation in the present suit. viii. He had been confident and upon advice of Counsel, which he verily believed to be true, that there had been sufficient cause to warrant the Honourable Court to review its Orders as duly issued, and that the sufficient cause had been overwhelmingly RULING: ELCLC CASE NO. E024 OF 2024 Page 6 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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enough to invoke the Honourable Court’s discretion to grant the Co-Plaintiffs and himself audience before the Honourable Court. ix. Without mincing words, the prior Advocates on record had done a lot of harm to his cause, which had been substantial enough to warrant the Honourable Court to make inference to the honesty and sincerity that the litigants herein had a good case prosecutable when given the chance. x. He had humbly urged the Honourable Court not to turn its back on his Co-Plaintiffs and himself and drive the whole lot of the litigants empty-handed from the seat of justice, which had been the only shield and defender known, especially as related to matters of land which were highly emotive. xi. The present suit had been the only arena and avenue available to ventilate the case beforehand and prosecute the same on merits, and as further advised by Counsel, whose advice he verily believed to be true, he had urged the Honourable Court to invoke the broader equity approach, and should need so require, a condemnation of costs would suffice. RULING: ELCLC CASE NO. E024 OF 2024 Page 7 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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xii. He had reiterated that the damage to be suffered had been immense, the consequence dire to a multitude of persons and their immediate families. xiii. The Affiant averred that he had sworn the affidavit in support of the application filed herein. xiv. What had been deponed to herein had been true to the best of his knowledge save where sources thereof had been disclosed. III. The Replying Affidavit by the 3rd Defendant 8. The 3rd Defendant/ Respondent raised a 17 paragraphed Replying Affidavit sworn on 9 th June, 2025 sworn by ENRICO SOGNO, herein who opposed the Application and stated as follows:a) Save as had been expressly stated, the matters deponed therein were within the Affiant’s knowledge or derived from documents within his possession. In so far as the matters deponed to had been within his knowledge they were true, and insofar as they had been derived from documents which he had read, he verily believed them to have been true to the best of his knowledge and belief. RULING: ELCLC CASE NO. E024 OF 2024 Page 8 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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b) There had been shown to the Affiant a paginated bundle marked as “ES - 1” which consisted of true copies of documents to which he had occasion to refer in the matter. c) The Affiant had read and understood the Applicant’s Notice of Motion application dated 10 th April, 2025 together with the Supporting Affidavit of Mohamed Juma Nyuni sworn on the 10th April, 2025, as explained to him by his Advocates on record, Collette Akwana, and he then made the Affidavit in reply thereto. d) The Applicant had filed the suit on the 10 th April, 2024 and on the same date filed an application seeking injunctive orders against the Defendants herein. On the 11 th June, 2024, this Court had heard the said application ex parte and granted the injunctive orders while also expressly indicating that the injunctive orders would remain in place until 30th April, 2024. [Annexed at page 1 of “ES - 1” had been an Order of the Court given on 11 th June, 2024]. e) On the 30th April, 2024, when the matter came up for mention, the Applicant had withdrawn their application, RULING: ELCLC CASE NO. E024 OF 2024 Page 9 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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as a result of which there had been no injunctive orders in place. f) The Applicant had had on numerous occasions, being the 30th April, 2025, 6th June, 2024, 25th July, 2024, 6th February, 2025 and 20th March, 2025, had the opportunities to ensure that they filed documents to support their claim, but to date they had not done so. g) On 6th June, 2024 the Applicants had requested the Court to grant them a two-month grace period to enable them to engage with the Respondents. Such grace period had been granted but the Applicants had not engaged with the Respondents in any manner. The fact that the Applicants later claimed reinstatement of the case, a year thereafter, to enable them to file documents they had yet to disclose, was a clear indication that they had purely used every excuse to delay the case and cause harm to the Respondents. h) It had been evident that the Applicant had come to Court unprepared and with malicious intentions to obtain injunctive orders against the Respondents knowing very RULING: ELCLC CASE NO. E024 OF 2024 Page 10 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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well that they did not have any supporting documents to anchor their claim. i) The continuation and/or re - instatement of the suit had been extremely expensive both financially and in time, as the Affiant had had to engage the County Land Surveyor, the County Valuer and a private surveyor in undertaking boundary surveys, as well as following up on the criminal case against one of the offending villagers for malicious damage to property and the boundary wall which had been valued at a sum of Kenya Shillings One Million One Fourty Eight Thousand Four Sixty Three Hundred and Fourty Two cents (Kshs. 1,148,463.42/=). He had also had to pay for significant travel expenses to Kenya on the last hearing date, when the matter had come up for hearing, for reasons that he had not wanted to occasion an adjournment. [Annexed at pages 2 to 5 of “ES-1” had been a Charge Sheet and flight ticket payment]. j) The Applicants had not detailed the specific negligence and/or mistake of their previous firm of Advocates and as such, the Applicants had failed to show diligence in their RULING: ELCLC CASE NO. E024 OF 2024 Page 11 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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own cause and hence had not been entitled to the orders sought. k) The previous Advocates for the Applicants had made the same request to the Court claiming they would file further documents, but nonetheless failed to file any, which had been further evidence that there had been no basis for the subject application to be granted, the end result being frustration of the progress of the matter through the newly appointed firm of Advocates. l) The Affiant had been diligent in providing ample and conclusive evidence to refute the Applicants’ claims beyond any doubt and had acted in good faith by attending the hearings remotely or in person to determine the case and put an end to the injustice. m) Justice had been a double-edged sword which could not only favour an undeserving party but which favoured a party whose conduct had been ready for determination of the real issues with diligence, as had been the Respondents’ position. n) From the Applicant’s application, they had seemed to be seeking entitlement to the orders prayed for and not for RULING: ELCLC CASE NO. E024 OF 2024 Page 12 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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this Honourable Court’s discretion in granting the same. As such, if this Honourable Court had allowed the subject application (which the Affiant objected to), he prayed that the Applicant be ordered to repay his airfare for attendance of the last hearing date within strict timelines, failure to which the suit would have stood dismissed. o) This Honourable Court had wide discretion in considering the subject application, and the condition precedent deponed to hereinabove would have served the ends of justice for his airfare to be refunded so that the Applicants could not continue causing the Respondents considerable injury by pursuing a malicious case with no basis in this Honourable Court. p) In view of the above, the Affiant prayed that this Honourable Court to dismiss the Applicant’s application dated 10th April, 2025 with costs to the Respondents. IV. The Supplementary Affidavit by the Plaintiff/Applicant 9. The Plaintiff/Applicant responded to Replying Affidavit by the 3 rd Defendant through an 11th Paragraphed Supplementary affidavit sworn on 25th July, 2025 by MOHAMED JUMA NYUNI, the Plaintiff where he deponed:- RULING: ELCLC CASE NO. E024 OF 2024 Page 13 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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a) He had been shown the Defendants’ Replying Affidavit dated 9th June, 2025 to which he wished to respond as below. b) Failure to turn up on the date slated for the hearing had been caused by laxity on the part of his former Advocates. c) He had further obtained crucial documents indicating that the land in dispute had been involved in another case and as such the Defendants could not purport to own that parcel of land. d) He had already compiled the evidence obtained which he prayed the Honourable Court had permitted him to file so that the suit proceeded to a full trial and a verdict be made upon hearing both sides on merit. (He annexed the draft supplementary documents that he had intended to file in his suit and marked them as annexture “MJ - 1”). e) There had been high chances that their suit would succeed and as such he had humbly prayed that the Honourable Court reinstated the same. f) The only reason the Defendants had opposed the suit being heard on its merits had been because they were fully aware that they did not own the suit land and RULING: ELCLC CASE NO. E024 OF 2024 Page 14 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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therefore had been bent on taking unfair advantage of the orders issued by Court to oppose the suit from proceeding to a full trial on its merits. g) The right to a fair trial had been one of the cornerstones of the Constitution, 2010 which he had prayed that the Honourable Court protected by all means. h) There had been no known prejudice that would have been suffered by the Defendants if the suit had proceeded to full trial and both sides had had their day in Court. i) He had made the affidavit in support of the application filed therein. j) What had been deponed to therein had been true to the best of his knowledge save where sources thereof had been disclosed. V. Submissions 10. While all the parties were present in Court, they were directed to have the Notice of Motion application dated 25 th July, 2025, the Replying Affidavit sworn on 9th June, 2025, and the supplementary affidavit sworn on 25 th June, 2025 be disposed of by way of written submissions. RULING: ELCLC CASE NO. E024 OF 2024 Page 15 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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11. Pursuant to that, all the parties duly complied with the Court’s directions. A ruling date was accordingly reserved on notice. Eventually, it was delivered on 29th September, 2026 accordingly. A. The Written Submissions of the Plaintiff/Applicant 12. The Plaintiff through the Law firm of Messrs. B. Maitha & Co. Advocates filed their written submissions dated 4 th October, 2025. Mr. Yose Advocate submitted from the opening remarks that the right to a fair trial was a norm of international human rights law designed to protect individuals from the unlawful and arbitrary curtailment or deprivation of other basic rights and freedoms, the most prominent of which were the right to life and liberty of the person. It was guaranteed under the provision of Article 14 of the International Covenant on Civil and Political Rights (ICCPR). The fundamental importance of this right is illustrated not only by the extensive body of interpretation it has generated worldwide but, by the fact that under Article 25 (c) of their constitution, was among the fundamental rights and freedoms that may not be limited. ( “Republic – Versus - Director of Public Prosecutions & 2 others; Evanson Muriuki Kariuki (Interested Party); Ex - Parte James M. Kahumbura [2019] eKLR” ). RULING: ELCLC CASE NO. E024 OF 2024 Page 16 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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13. The Learned Counsel submitted that the before Court for determination was the Plaintiffs' further amended Application dated 25th July, 2025. In total, the Plaintiff filed three Applications due to the need to make some amendments on the earlier Application that had been filed. The court in its wisdom asked parties to reply on all the Applications and that the Applications would be determined concurrently. The Application was brought under the provision of Order 22 Rules 22 & 25, Order 9 Rule 9, Order 12 Rule 7, Order 45 Rule 1 of the Civil Procedure Rules, 2010 Sections 1, 1A, 3A, 63 (e) and 80 of the Civil Procedure Act, Cap. 21 of the Laws of Kenya, Articles, 40, 50 (e) and 159 of the Constitution of the republic of Kenya, inherent power and jurisdiction of the Honourable court and all other enabling provisions of the law). The Application sought the above stated reliefs. 14. According to the Learned Counsel, this was a simple application of seeking re - instatement of a suit that was dismissed for want of prosecution on the grounds that:a) the Proceedings, Orders/Ruling issued by the Honourable Court on the 20th day of March, 2025 had the import and effect of the under-mentioned:RULING: ELCLC CASE NO. E024 OF 2024 Page 17 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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b) The suit to wit; the Plaint, Summons to Enter Appearance and all consequent pleadings filed by the Plaintiff/Applicant had been dismissed. c) The main Plaintiff had an irreversible communication breakdown with his then Advocates until recently when he learned that the suit herein had been dismissed by an order of this Honourable Court. d) It was manifestly clear that the then Advocates on record did not did not prosecute the suit herein with the desired diligence leading to its dismissal and the Orders of court as issued on the 20th March, 2025. e) It followed without doubt, that the Honourable Court has inherent unrestricted jurisdiction to vary, set-aside and/or review its own orders where sufficient grounds such as the case-in-point herewith have been established sufficiently so to warrant setting aside of the Orders issued herewith to avert a grave miscarriage of justice. f) It was manifestly clear that the rules of natural justice were on trial in the present circumstances, denial of audience before a seat of justice ought to be a circumstance of last resort especially on such emotive RULING: ELCLC CASE NO. E024 OF 2024 Page 18 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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issues as that of Land which is a scarce commodity, an economic enterprise in the present circumstance it was the only known home of the Plaintiffs/Applicants. g) There were good and sufficient grounds to warrant grant of the Orders sought herewith. h) The merits of the suit as progressed by the Plaintiff/Applicant had not been heard by the Honourable Court which was not only afoul of the land regime, statute but clear transgressions as against the proprietary rights of the Plaintiff/Applicant, a Constitutional protected right. i) This application obliged the Honourable Court to suo motto reinstate the Plaintiffs/Applicant's herewith having been Plaintiff's/applicant's misinformation, committed own further the suit, the mistake not out of making Oxygen but the a clear principles as progressed by the Civil Procedure Rules envisaged a scenario where the Honourable Court can heave off the burden of being dismissed unheard by clear mistake of Counsel. j) The Defendant/Respondent would very well proceed to issue threats, RULING: ELCLC CASE NO. E024 OF 2024 and actually Page 19 of 55 violently bar the HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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Plaintiffs/Applicants from using the access road consequent to the said Proceedings, and Orders issued on 20th March, 2025 herewith which disenfranchises the Plaintiffs/Applicants of the interest herewith, without being afforded the sacrosanct “right to be heard prior to being condemned”. k) The parameters and realm of setting aside and review had duly been satisfied hence the Honourable Court divested of the authority herewith ought to immediately converge and avoid a miscarriage of justice being permeated herewith. l) The Defendant/Respondent would not suffer any prejudice in the event the Orders sought herein were granted as prayed. m) The damage to be suffered by the Plaintiff/Applicant on a balance of scale outweighs that of the Defendant/Respondent. n) It was in the larger interest of justice that the Honourable Court does grant the Orders sought herein. 15. The title to the suit land was involved in a vicious suit at Kwale ELC. Therefore it would be extremely unfair for the Court to RULING: ELCLC CASE NO. E024 OF 2024 Page 20 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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enter Judgment favouring the Defendants without getting an opportunity to examine that evidence. The Learned Counsel submitted that the reason why the suit never proceeded on the date it came up for hearing was because, the Plaintiffs had obtained evidence to prove that title to the suit land was under vicious litigation being fought for by several parties. It was therefore crucial that the court re-instated the suit so that that evidence was presented before it for analysis. 16. On law. The Learned Counsel averred that the instant Application sought re - instatement of a matter that was dismissed for want of prosecution and court addressed the position of natural justice and fair hearing. In the case of:“Murtaza Hassan & Another – Versus - Ahmed Slad Kulmiye [2020] eKLR” court held that:“The principle obviously is that unless and until the court has provided a Judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power, where that has only been observed by a failure to follow any of the rules of procedure........” 17. The right to a fair hearing is a creature of the Constitution. Under the provision of Articles 25 (c) and 50(1):i) Article 50 (1) provides thus:- RULING: ELCLC CASE NO. E024 OF 2024 Page 21 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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‘(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body’ (ii)Whereas Article 25 (c) provides:Fundamental Rights and freedoms that may not be limited Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited— (c) the right to a fair trial- 18. In the above case of “Murtaza Hassan & Another (Supra)” court cited with approval the case of “Ridge – Versus - Baldinn {1964} AC 40 (1963) 2 ALL ER 66”: in which it was held that:“The principle of fairness has an important place in the administration of justice and is also a good ground upon which courts ordinarily exercise discretion to intervene and quash the decisions of a tribunal or subordinate court made in violations of right to a fair hearing and due process.” 19. Indeed, it was only fair that court sets the matter down for hearing inter parties so that a determination is made on merit. In the case of:- “Jeremiah Mghanga Msafari – Versus - Millicent Zighe Mwachala& 3 others [2021] eKLR” , court cited with approval the case of “Elton Homes – Versus - Davis & others (2019) eKLR” in which court observed that:“The constitution of Kenya is very clear on the right to protection of one’s property and the said property cannot be RULING: ELCLC CASE NO. E024 OF 2024 Page 22 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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arbitrary(sic) be taken away from such an owner without being heard or accorded an opportunity to ventilate his case.” 20. In the above case of “Jeremiah Mghanga Msafiri (Supra)”, Court weighed the likely prejudice to be suffered by the unheard appellant and the Respondent who was to enjoy fruits of the suit and proceeded to hold that:“There is no greater prejudice in starting the case de novo than denying the appellant the right to be heard.” 21. The Counsel stated that in the case of “Republic – Versus Director of Public Prosecutions & 2 others; Evanson Muriuki Kariuki (Interested Party); Ex parte James M. Kahumbura [2019] eKLR” Court considered the right to a fair trial in the following terms:“44. Fundamentally, a fair and impartial trial or investigation has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial or an investigation is required to be conducted in such a manner which would totally ostracize injustice, prejudice, dishonesty and favoritism. And again decidedly, there has to be a fair investigation process and a fair trial and no miscarriage of justice and under no circumstances, prejudice should be caused to the accused.[30] 45. The right to a fair trial is a norm of international human rights law designed to protect individuals from the unlawful and arbitrary curtailment or deprivation of other basic rights and freedoms, the most prominent of which are the right to life and liberty of the person. It is guaranteed under Article 14 RULING: ELCLC CASE NO. E024 OF 2024 Page 23 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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of the International Covenant on Civil and Political Rights (ICCPR).[31] The fundamental importance of this right is illustrated not only by the extensive body of interpretation it has generated worldwide but, by the fact that under article 25(c) of our constitution, it is among the fundamental rights and freedoms that may not be limited. A criminal trial premised on unfair and questionable partisan investigations or a decision to charge arrived at unfairly and without any reasonable basis would in my view open the door to an unfair trial.” 22. In conclusion, the Learned Counsel submitted that it was imperative that the court reinstated the suit and allowed the Plaintiff to file documents which will prove that the indeed ownership of the suit land is a matter pending determination by Court. The Defendant cannot purport to claim that they own that parcel of land, yet it is under a vicious litigation at Kwale Law Courts. B. The Written Submissions by the 1st and 3rd Defendant/Respondents 23. The 1st and 3rd Defendants/Respondents through the Law firm of Messrs. Daly Inamdar Advocates LLP filed their written submissions dated 14th October, 2025. M/s. Akwana Advocate provided Court with a brief background of the matter. She submitted that the Plaintiffs/Applicants filed a Notice of Motion RULING: ELCLC CASE NO. E024 OF 2024 Page 24 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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application dated 10th April, 2025 which was amended on 27 th May, 2025 and further amended on 25th July, 2025. The 1st and 3rd Defendants/Respondents had already filed a Replying Affidavit sworn by the 3rd Respondent on 9th June, 2025 and Grounds of Opposition of even date in respect of the application dated 10th April, 2025 and without any hinderances of procedural technicality, wished to rely on the said Replying Affidavit and Grounds of Opposition in opposition to the Further Amended Notice of Motion application dated 25 th July, 2025(hereinafter “the subject application”). 24. The Learned Counsel asserted that Prayers 1, 2, 3, 3a and 4 of the subject application had already either been spent or overtaken by events as in the case of staying taxation of the Bill of Costs dated 3rd April, 2025. The Bill of Costs, as evidenced by the court records was already taxed and a Certificate of Taxation for the sum of Kenya Shillings Two Thousand and Three Five Eighty Nine Hundred and Three Cents (Kshs. 203,589.03/=) was issued on the 28th August, 2025. The Applicants’ main prayer in the subject application was for an order of review on grounds that there was an error apparent on the face of the record and discovery of new evidence. The RULING: ELCLC CASE NO. E024 OF 2024 Page 25 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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Applicants state that there was an irreversible communication breakdown with their then Advocates on record and as such they had neither filed any case supporting documentation and/or attended Court on the occasions the matter came up for hearing. As such, the Advocates' mistake should not be visited upon them hence the prayers sought for in the subject application. 25. The Learned Counsel on the other hand submitted that the Applicants came to this court by way of an injunction application, sought orders, were directed to prosecute their suit and have since then been disinterested in having this suit heard on merits. Further, that the allegations that there was a communication breakdown by their then previous advocates on record, was a smoke screen that was not supported by any evidence that their then Advocate on record was negligent. 26. The Learned Counsel further stated that the Applicants had never been keen on prosecuting the matter on merits. This was for reasons that they had no evidence that there was a public access road through the suit property. They had continuously engaged in vandalizing the boundary wall of the suit property. They did this knowing too well that there was no public road of RULING: ELCLC CASE NO. E024 OF 2024 Page 26 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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access through the same. Further that the 3 rd Respondent had incurred travel expenses for the attendance of the hearing which he prayed to be refunded at the least, by this Honourable Court as thrown away costs. 27. The Learned Counsel relied on the following issues for ease of tractability arranged these submission. On the grounds of review, the Learned Counsel submitted that the provision of Order 45 Rule 1 of the Civil Procedure Rules:“1. Application for review of decree or order [Order 45, rule 1] (1) Any person considering himself aggrieved:(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within bis knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.” 28. According to the Learned Counsel, the Applicant stated that they never attended Court for hearing of the matter and failed to prosecute their suit for reasons that they had experienced RULING: ELCLC CASE NO. E024 OF 2024 Page 27 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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irreversible communication breakdown with their then Advocates on record, Khaminwa & Khaminwa, Advocates. The provision of Order 45 Rule 1 never provided for “mistake of Counsel” as a ground for review. In any event, while the Applicants’ subject application enlisted mistake of Counsel as the main reason for non-prosecution of the suit. Yet, none of the Affidavits filed in Court attached any documents which made reference to such mistake; for instance screenshots of text or Whatsapp messages or email correspondence evidencing that the Applicants’ made active follow up of their matter with the Advocates. There had been no explanation of the times and dates they requested to meet with their advocates and how their requests were never honoured despite their desire to do so. 29. Certainly, without any evidence of action from the Applicants to whom the case belonged, no liability could attach to their Advocates. In the attached cases of “Habo Agencies Limited – Versus - Wilfred Odhiambo Musingo [2015] eKLR LOA 1” , “Tana & Athi Rivers Development Authority – Versus - Jeremiah Kimingho Mwakio and 3 Others [2015] eKLR LOA2” and “Rajesh Rughani – RULING: ELCLC CASE NO. E024 OF 2024 Page 28 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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Versus - Fifty Investments Limited and Another [2016] eKLR LOA 3”, the Court of Appeal in the 3 authorities held that:“it is not enough for a party in litigation to simply blame the Advocate on record for all manner of transgressions in the conduct of litigation, without an explanation as to the action taken by the litigant to show that he did not condone or collude in the delay.” 30. Additionally, in order for the court to a review its order/s on the ground of an error apparent on the fact of the record, the error or omission must be self-evident and should not require an elaborate argument to be established. In the case of “Ouko – Versus - Ogochi and 2 Others [2023] KEELC” LOA 4, “Ngotho Architects – Versus - P.S. Ministry of Education, Science and Technology [2025] KEHC” LOA 5, “Republic – Versus - Reuben Kandugu Kahihania and 2 Others [2020] KEELC” LOA 6, “Wanjiru Mururi Nduati – Versus - Erastus Ndungu Thungu [2019] KEELC” LOA 7 and “Mburu Gitimu – Versus - Daniel Kamau Muiruri [2019] KEELC” LOA 8, the Courts have held that:“the term mistake or error apparent by its very connotation signifies an error which is evidence per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error on the fact of the record for purposes of review.” RULING: ELCLC CASE NO. E024 OF 2024 Page 29 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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31. According to the Learned Counsel, there was no demonstration of a self-explanatory error that existed on the face of the court records in respect to the orders issued on the 20 th March, 2025. A review of the order on the ground of error apparent on the face of the record must therefore fail. While the Applicants additionally state that they would wish for the orders to be reviewed on the grounds of new evidence, they do not demonstrate what due diligence they had earlier carried out and any prevailing circumstances which prohibited them from obtaining such evidence. On the issue of discovery of new evidence, Mativo J. (as he then was) in the case of “Republic – Versus - Advocates Disciplinary Tribunal Ex-parte Apollo Mboya [2019 KEHC” LOA 9 stated that:“For material to qualify to be new and important evidence or matter, it must be of such a nature that it could not have been discovered had the applicant exercised due diligence. It must be evidence or material that was not available to the applicant or the Court.” 32. There had been no explanation of why public documents accessible to the public in the nature of Court pleadings had not been discovered or even the due diligence exercised by the Plaintiffs to access the same. In any event, the documents referred to as “new evidence” attached in the Applicants’ List of RULING: ELCLC CASE NO. E024 OF 2024 Page 30 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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Documents made no reference to a public road which existed as passing through the suit property herein, which was the sole reason for the Applicants’ case. The Applicants, who had sued the Respondents in their capacity as proprietors of the suit property, could now not claim that there were other parties who owned the suit property. If it was their position that there existed other parties who owned the suit property, nothing would have been easier to join them in these proceedings. As such, any such reference made in in any pleadings by third parties who themselves have not made a claim for proprietorship was misplaced and misleading and was evidence that the Applicants had filed a frivolous and scandalous case. 33. In view of the above, the Learned Counsel submitted that the Applicants had not demonstrated any justification for review of the said orders on either grounds of error on the face of the record or on the discovery of new evidence. 34. In the alternative – on costs for reinstatement of the suit. The Learned Counsel submitted that the 3 rd Respondent had attached to his Replying Affidavit at pages 4 - 5 being the air tickets expenses he incurred for travel to Kenya for the physical hearing of the matter scheduled for the 20 th March 2025. This RULING: ELCLC CASE NO. E024 OF 2024 Page 31 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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hearing never proceeded at the behest of the Applicants who never turned up for the hearing. Without prejudice to the submissions made under Part 2 hereinabove, if the Honourable Court reinstated the suit (which it was urged not to), then in order for justice to be dispensed without the prejudice of the Respondents, they humbly submitted that the Honourable Court do direct for reimbursement of the sum total of Kenya Shillings One Thirty Five Thousand Eight Fourty Two Hundred (Kshs. 135,842.00/=) to be paid equally among all the Applicants herein. 35. This would, in the circumstances cushion the 3 rd Respondent from incurring unnecessary hefty expenses at the behest of the Applicants in defending his interests in the suit property without infringement thereof. It would also ensure fairness of the justice system by protecting the Respondents from frivolous, drawnout proceedings and enhanced litigation costs which would otherwise financially strain the Respondents. 36. They submitted that these costs be directed as payable within seven (7) days from the date of the reinstatement order (if any), failure to which the orders of the 20 th March, 2025 would remain on record. In doing so, the Court would ensure that the RULING: ELCLC CASE NO. E024 OF 2024 Page 32 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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Respondents were not prejudiced by the prayers sought for in the subject application. 37. In conclusion, the Learned Counsel submitted that the subject application was not merited and that the grounds therein pleaded. That the Applicants had not established any anchor to review the Court’s orders of the 20 th March, 2025 as would be applicable under the provision of Order 45 Rule 1 of the Civil Procedure Rules, 2020. As such, the Respondents prayed that the Further Amended Notice of Motion application dated 25 th July, 2025 be dismissed with costs to the Respondents herein. VI. Analysis and Determination 38. The Honourable Court has carefully read and considered the Further Amended Notice of Motion application dated 25 th July, 2025 and amended on 25th July, 2025 filed by the Plaintiff/Applicant, Mohamed Juma Nyuni (suing on behalf of himself and 20 other residents of Mwaembe Village), the Replying Affidavit sworn on 9 th June, 2025 filed by the 3rd Defendant, Enrico Sogno, and the Plaintiff’s Written Submissions dated July, 2025 filed on behalf of the Plaintiff. 39. The Court also considered the Supporting Affidavit sworn on 10th April, 2025 and the Supplementary Affidavit sworn on 25 th RULING: ELCLC CASE NO. E024 OF 2024 Page 33 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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July, 2025 by Mohamed Juma Nyuni, together with the annexures thereto, the objections raised by the Defendants, the relevant statutory provisions and authorities cited. 40. In order to arrive at an informed, fair, reasonable and Equitable decision, the Court framed the following four (4) key issues for determination:a) Whether the Plaintiff has established grounds warranting the re instatement of the suit it instated but dismissed on 20 th March, 2025; b) 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, 2010 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; c) Whether the Court should impose conditions, including the payment of thrown-away costs, upon any order of reinstatement; and d) What orders should be made as to the costs of the application 41. Before addressing the issues for determination, for ease of reference and information, it is apposite to set out the relevant legal framework. The jurisdiction of this Court to entertain the application is anchored, first and foremost, in the Constitution of Kenya, 2010. The provision of Article 50 (1) guarantees that:“every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent RULING: ELCLC CASE NO. E024 OF 2024 Page 34 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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and impartial tribunal or body.” While the provision of Article 25(c) provides that the right to a fair trial is among the fundamental rights and freedoms that shall not be limited. The provision of Article 159(2)(b) & (d) holds the “Justice shall not be delayed” and that it enjoins courts and tribunals to administer justice “without undue regard to procedural technicalities,” while the provision of Article 40 protects the right to acquire and own property. 42. At the statutory level, the provision of Sections 1 & 1A of the Civil Procedure Act, Cap. 21 and Section 3 of the Environment & Land Court Act, No. 19 of 2011, provides that the Overriding Objective of the Act and the Rules made thereunder is “to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.” Section 1B elaborates on the duty of the Court in furthering the overriding objective. Section 3A preserves the inherent power of the Court “to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” 43. The provision of Section 63(e) of the Civil Procedure Act empowers the Court to make such interlocutory orders as may appear to the Court to be just and convenient. The provision of Section 80 of the Act, Cap. 21 read together with Order 45 of RULING: ELCLC CASE NO. E024 OF 2024 Page 35 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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the Rules provides that any person who considers himself aggrieved by a decree or order from which an appeal is allowed but from which no appeal has been preferred, or by a decree or order from which no appeal is allowed, may apply for a review of judgment to the Court which passed the decree or made the order, on grounds specified in the Rules. 44. The provision of Order 12 Rule 7 of the Civil Procedure Rules provides that: “Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.” 45. Order 45 Rule 1 of the Civil Procedure Rules provides that: “(1) Any person considering himself aggrieved — (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.” RULING: ELCLC CASE NO. E024 OF 2024 Page 36 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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ISSUE No. a). Whether the Plaintiff has established grounds warranting the re - instatement of the suit – filed by it but dismissed on 20th March, 2025. 46. Under this sub - title, the Honourable Court shall examine whether the Plaintiff has established grounds warranting the re - instatement of the suit dismissed on 20 th March, 2025 for want of prosecution and non – attendance by the Plaintiff when it was already set down for hearing by the consensus and ewith proper notice to the parties. The law on re - instatement of suits dismissed is settled. As held in the case of:- “John Nahashon Mwangi – Versus - Kenya Finance Bank (In Liquidation) [2015] eKLR”, the fundamental principles of justice are enshrined in the entire Constitution and specifically in the provision of Article 159 thereof. Article 50, coupled with Article 159, underscores the right to be heard and the imperative of serving substantive justice to all. Those principles ought to be factored when considering the reinstatement of dismissed suits, bearing in mind that dismissal of suits is a draconian measure which ought to be resorted to only in the clearest of cases. 47. The discretion conferred upon the Court under the provision of Order 12 Rule 7 is wide and unfettered, but it must be exercised RULING: ELCLC CASE NO. E024 OF 2024 Page 37 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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judicially and upon settled principles. In the now celebrated case of:- “Shah – Versus - Mbogo [1967] EA 116” , Harris J. held that the Court’s discretion to set aside an ex parte judgment or dismissal order: “is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.” 48. The Court of Appeal has, in a long line of authorities, affirmed that the mistake of counsel should not, in appropriate circumstances, be visited upon an innocent litigant. In the case of:- “Philip Keipto Chemwolo & Another – Versus - Augustine Kubende [1986] KLR 492”, Apaloo JA (as he then was) observed that: “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.” 49. Similarly, in the case of:- “Belinda Murai & 9 Others – Versus Amos Wainaina [1982] KLR 38”, Madan JA (as he then was) memorably observed that: “A mistake is a mistake. It is no less a mistake because it is an unfortunate slip. It is no less pardonable because it is committed by senior counsel. Though in the case of junior counsel the court may feel compassionate more readily. A RULING: ELCLC CASE NO. E024 OF 2024 Page 38 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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blunder on a point of law can be a mistake. The door of justice is not closed because a mistake has been made by a lawyer of experience who ought to have known better.” 50. However, the Court of Appeal has equally cautioned that the principle that a litigant should not suffer for the mistakes of counsel is not absolute, and does not avail a litigant who has himself been indolent or who has not demonstrated diligence in the prosecution of his own cause. In the case of:- “Habo Agencies Ltd – Versus - Wilfred Odhiambo Musingo [2015] eKLR” , the Court of Appeal held that: “It is not enough for a party in litigation to simply blame the Advocate on record for all manner of transgressions in the conduct of litigation, without an explanation as to the action taken by the litigant to show that he did not condone or collude in the delay.” 51. This principle was affirmed and applied by the Court of Appeal in the case of:- “Tana & Athi Rivers Development Authority – Versus - Jeremiah Kimingho Mwakio & 3 Others [2015] eKLR” and “Rajesh Rughani – Versus - Fifty Investments Limited & Another [2016] eKLR”, in which the Court observed that: “It is insufficient to blame previous counsel on record without an explanation as to the action taken by the litigant to show he did not condone or collude in the delay.” 52. The thread running through these authorities is that the Court, in exercising its discretion whether to reinstate a dismissed suit, RULING: ELCLC CASE NO. E024 OF 2024 Page 39 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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must balance two competing imperatives: on the one hand, the constitutional right of a litigant to be heard and to have his dispute determined on its merits; and, on the other hand, the public interest in the expeditious disposal of litigation and the protection of the opposite party from prejudice occasioned by inordinate and unexplained delay. ISSUE No. b). Whether the Plaintiff has established grounds for review of the orders of 20 th 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. 53. Under this sub-title, the main issue here is whether the Plaintiff has established grounds for review of the orders of 20 th March, 2025 under the provision of 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 RULING: ELCLC CASE NO. E024 OF 2024 Page 40 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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evidence, or any other sufficient reason. I now turn to apply the foregoing principles to the facts of the present case. The Plaintiff’s explanation for the failure to prosecute the suit and for non-attendance on 20th March, 2025 is that he experienced an “irreversible communication breakdown” with his former advocates, who failed to keep him apprised of the proceedings and failed to file documents in support of his claim. He contends that the mistake of his former advocates should not be visited upon him. 54. The Defendants, on the other hand, contend that the Plaintiff has not adduced any evidence of the alleged negligence of his former advocates, and that the Plaintiff has not demonstrated that he was diligent in his own cause. Indeed they term this as mere “smoke screen” and lame excuses. They point to the numerous occasions on which the matter was listed before this Court and the Plaintiff failed to take steps to prosecute the suit, and to the fact that the Plaintiff's former advocates themselves requested and were granted a grace period which they did not utilize. 55. I have carefully considered the respective positions of the parties. It is undoubtedly true, as the Defendants submit, that RULING: ELCLC CASE NO. E024 OF 2024 Page 41 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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the Plaintiff has not placed before this Court any documentary evidence — such as correspondence, emails, or records of attendance — to substantiate the allegation of a communication breakdown with his former advocates. It is also true that the suit was dismissed only after the Plaintiff had been afforded multiple opportunities to take steps to prosecute it, and that the Plaintiff's former advocates were themselves granted a grace period which they did not utilize. 56. It is equally true, however, that this is not a case in which the Plaintiff has been wholly indolent or has sought to obstruct or delay the course of justice. The Plaintiff moved expeditiously to challenge the dismissal, filing the application for reinstatement within a relatively short period of the dismissal order of 20th March 2025. He has since changed advocates and now expresses a clear and unequivocal desire to prosecute his suit to its conclusion. He has further deposed that he has obtained documents which he considers material to his claim, and which he wishes to place before the Court. 57. The subject matter of the suit is land — a highly emotive and constitutionally protected resource. The Plaintiff sues not only on his own behalf but on behalf of twenty (20) other residents RULING: ELCLC CASE NO. E024 OF 2024 Page 42 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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of Mwaembe Village. The dispute touches upon questions of proprietary rights and, on the Plaintiff's case, the existence of a public right of way or access road. These are matters of considerable consequence to the community the Plaintiff represents, and they cry out for determination on their merits rather than on the basis of procedural default. 58. I am guided by the observation of this Court (differently constituted) in “Jeremiah Mghanga Msafari – Versus - Millicent Zighe Mwachala & 3 others [2021] eKLR” that “there is no greater prejudice in starting the case de novo than denying the appellant the right to be heard.” The right to be heard is an inalienable right which cannot be taken away, and any decision which purports to take it away without just cause is a denial of the constitutional guarantee under the provision of Article 50(1) of the Constitution. 59. In the circumstances, and balancing the competing considerations, I am persuaded that this is a proper case in which the Court ought to exercise its discretion in favour of reinstating the suit, so that the same may be heard and determined on its merits. The dismissal of a suit is a draconian measure, and the Court ought not to shut out a litigant from the RULING: ELCLC CASE NO. E024 OF 2024 Page 43 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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seat of justice where, as here, there is an arguable claim touching upon constitutionally protected rights, and where the default, though not wholly excusable, is not shown to have been deliberate or contumelious. 60. I am fortified in this conclusion by the imperative under the provision of Article 159(2) (b) & (d) of the Constitution and the overriding objective under the provision of Sections 1A and 1B of the Civil Procedure Act, Cap. 21 and Section 3 of the Environment & Land Court Act, No. 19 of 2011 which require the Court to administer justice without undue regard to procedural technicalities and to facilitate the just, expeditious, proportionate and affordable resolution of disputes. ISSUE No. c). Whether the Court should impose conditions, including the payment of thrown-away costs, upon any order of reinstatement. 61. Under this sub-title, the main issue here is whether the Court should impose conditions, including the payment of thrownaway costs, upon any order of reinstatement. Having found that the suit ought to be reinstated under the provision of Order 12 RULING: ELCLC CASE NO. E024 OF 2024 Page 44 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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Rule 7 of the Rules, it is strictly unnecessary to determine the alternative prayer for review under Order 45 Rule 1. Nevertheless, in deference to the extensive submissions of counsel, I shall briefly address the grounds upon which the prayer for review is founded. The Plaintiff seeks review on two grounds: first, that there is an error apparent on the face of the record; and secondly, that there has been discovery of new and important evidence. 62. The test for an error apparent on the face of the record is well settled. In the case of: “National Bank of Kenya Limited – Versus Ndungu Njau [1997] eKLR”, the Court of Appeal held that: “A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law.” 63. This principle was reiterated in the case of:- “Nyamogo & Nyamogo Advocates – Versus - Kogo [2001] 1 EA 173” , in which the Court of Appeal observed that an error apparent on the face of the record cannot be defined precisely or exhaustively, and RULING: ELCLC CASE NO. E024 OF 2024 Page 45 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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that there is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions about it, a case for review exists. Applying this test, I am unable to discern any error apparent on the face of the record in the orders of 20 th March, 2025. The dismissal of the suit for want of prosecution, in the face of the Plaintiff's repeated failure to take steps to prosecute the same, was a proper exercise of the Court's discretion. There is no self-evident error or omission on the face of the record which would warrant a review on that ground. 64. As regards the ground of discovery of new and important evidence, the test was articulated by Mativo J. (as he then was) in the case of:- “Republic – Versus - Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR” , where it was held that, for material to qualify as new and important evidence or matter, it must be of such a nature that it could not have been discovered had the applicant exercised due diligence, and it must be evidence or material that was not available to the applicant or the Court at the material time. RULING: ELCLC CASE NO. E024 OF 2024 Page 46 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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65. The Plaintiff has not demonstrated what due diligence he exercised prior to the dismissal of the suit, or why the documents he now seeks to introduce could not have been obtained and filed earlier. The documents in question, being court pleadings and other public records, would appear to have been accessible to the Plaintiff had he exercised reasonable diligence. In the premises, the ground of discovery of new and important evidence is not established. It follows that the Plaintiff has not made out a case for review under the provision of Order 45 Rule 1 of the Civil Procedure Rules. However, as I have already found that the suit ought to be reinstated under Order 12 Rule 7, the failure of the review grounds does not preclude the grant of the primary relief sought. 66. The provision of Order 12 Rule 7 empowers the Court to set aside a dismissal order “upon such terms as may be just.” The power to impose conditions upon reinstatement is therefore expressly conferred by the Rules. The 3 rd Defendant has deposed, and it is not seriously contested, that he incurred substantial expenses in travelling to Kenya for the physical hearing scheduled for 20th March 2025, which did not proceed at the behest of the Plaintiff. He has annexed evidence of the RULING: ELCLC CASE NO. E024 OF 2024 Page 47 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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airfare expenses, which he quantifies at a sum of Kenya Shillings One Thirty Five Thousand Eight Fourty Two Hundred (Kshs. 135,842.00/=), and prays that, in the event of reinstatement, the Plaintiff be ordered to reimburse the same as thrown-away costs. 67. The principle that a party whose default has occasioned the adjournment or vacation of a hearing date ought to bear the thrown-away costs of the opposite party is well established in our jurisprudence. It is a principle grounded in fairness and in the imperative of ensuring that litigation is conducted with diligence and that parties are not made to bear the financial consequences of the default of their adversaries. In the present case, the 3rd Defendant’s travel expenses and subsistence for the aborted hearing of 20th March, 2025 were incurred as a direct consequence of the Plaintiff's failure to attend Court and to prosecute the suit. It is only just and equitable that, as a condition of the reinstatement of the suit, the Plaintiff should bear those costs. 68. I am, however, mindful that the Plaintiff sues on behalf of himself and twenty (20) other residents of Mwaembe Village, and that the imposition of an unduly onerous condition might RULING: ELCLC CASE NO. E024 OF 2024 Page 48 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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serve to defeat the very purpose of the reinstatement. I shall therefore impose a condition which is fair and proportionate in the circumstances, while ensuring that the Defendants are not left to bear the financial burden of the Plaintiff's default. 69. Having considered the quantum of the airfare expenses claimed a sum of Kenya Shillings One Thirty Five Thousand Eight Fourty Two Hundred (Kshs. 135,842.00) and the totality of the circumstances, I consider it just to order that the Plaintiff do 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, as a condition precedent to the reinstatement of the suit. ISSUE No. d). What orders should be made as to the costs of the application 70. Under this sub-title, the main issue here is who ought to bear the costs of the Plaintiff’s application. It is now well established that the issue of Costs is at the discretion of the Court. Costs mean the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The governing provision is Section 27(1) of the Civil Procedure Act, Cap. 21, which provides:RULING: ELCLC CASE NO. E024 OF 2024 Page 49 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.” 71. Thus, while the general rule is that costs follow the event, the Court retains discretion to depart from this principle where justice so demands. 72. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of “Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR” and “Kenya Union of Commercial, Food and Allied Workers – Versus Bidco Africa Limited & Another [2015] eKLR” , the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of “Hussein Muhumed Sirat – Versus Attorney General & Another [2017] eKLR”, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. RULING: ELCLC CASE NO. E024 OF 2024 Page 50 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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73. Applying these principles, the Honourable Court, having considered the Further Amended Notice of Motion dated 25 th July 2025, the Replying Affidavit sworn on 9th June 2025 by the 3rd Defendant, Enrico Sogno, the Supporting and Supplementary Affidavits sworn by Mohamed Juma Nyuni, together with the rival submissions of both parties, is satisfied that the application raised weighty constitutional and procedural questions deserving judicial determination. 74. In the present case, while the Defendants have demonstrated prejudice in terms of survey expenses, valuations, and travel costs, the Court finds that reinstatement of the suit is necessary to vindicate the Plaintiffs’ constitutional right to a fair hearing under Articles 25 ( c ) & 50(1) of the Constitution of Kenya. The balance of justice therefore requires that costs of the application be held in abeyance until the final determination of the suit. VII. Conclusion and Disposition. 75. Having carefully considered the Further Amended Notice of Motion application dated 25th July, 2025, the Supporting and Supplementary Affidavits sworn by Mohamed Juma Nyuni, the Replying Affidavit sworn on 9th June, 2025 by the 3rd Defendant, RULING: ELCLC CASE NO. E024 OF 2024 Page 51 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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Enrico Sogno, the rival Written Submissions, and the applicable law, the Court finds as follows: a. The Plaintiff/Applicant has demonstrated sufficient cause to warrant reinstatement of the suit dismissed on 20 th March 2025, within the meaning of the provision of Order 12 Rule 7 and Order 45 Rule 1 of the Civil Procedure Rules, 2010, particularly in light of the new evidence tendered and the constitutional right to a fair hearing under Article 50(1). b. The dismissal of the suit was occasioned by mistake and negligence of former counsel, which should not be visited upon an innocent litigant, consistent with the principles enunciated in the case of:- “Philip Chemwolo & Another – Versus -Augustine Kubende [1982-88] KAR 103” and “Belinda Murai & Others – Versus - Amos Wainaina [1979] eKLR”. c. The reinstatement of the suit will occasion no irreparable prejudice to the Defendants, as any inconvenience suffered is compensable by costs, whereas refusal of the application would occasion substantial prejudice to the Plaintiffs, whose proprietary rights under Article 40 of the Constitution stand to be affected. RULING: ELCLC CASE NO. E024 OF 2024 Page 52 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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d. The application is not an abuse of the process of the Court, but rather a genuine attempt to have the matter determined on its merits, in line with the overriding objective in Sections 1A and 1B of the Civil Procedure Act, Cap. 21 and Section 3 of the ELC Act and the constitutional imperative under Article 159(2)(d) to administer justice without undue regard to procedural technicalities. 76. In reaching this conclusion, the Court is guided by the overriding objective to facilitate the just, expeditious, proportionate, and affordable resolution of disputes, and by the constitutional command to uphold the right to a fair trial. Accordingly, the Court makes the following specific orders:a) THAT the Further Amended Notice of Motion application dated 25th July, 2025 be and is hereby partially ALLOWED. b) 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, upon the following conditions:(i) 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; RULING: ELCLC CASE NO. E024 OF 2024 Page 53 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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(ii) The Plaintiff shall file and serve his additional documents, including the supplementary documents referred to in his Supplementary Affidavit sworn on 25th July, 2025, within twenty-one (21) days of the date of this ruling; (iii)The Plaintiff shall take steps to fix the suit for hearing WITHIN SIXTY (60) DAYS of the date of this ruling, failing which the suit shall stand dismissed with costs; c) THAT prayer for review of the orders of 20 th March, 2025 under the provision of Order 45 Rule 1 of the Civil Procedure Rules, 2010 be and is hereby declined. d) THAT the prayer for stay of taxation of the Bill of Costs dated 3rd April, 2025 be and is overtaken by events, the same having since been taxed and a Certificate of Taxation issued. e) THAT the costs of this application shall be costs in the cause. IT IS SO ORDERED ACCORDINGLY. RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS……29TH ..…… DAY OF ……SEPTEMBER…..……..2026. ………………………..……………………. HON. MR. JUSTICE L. L. NAIKUNI, ENVIRONMENT AND LAND COURT AT KWALE Ruling delivered in the presence of: (a) Mr. Daniel Disii, the Court Assistant; (b)Mr. Yose Advocate for the Plaintiff/Applicant; (c) Mr. Wilson Mrima Advocate holding brief for M/s. Akwana Advocates for the 1st & 3rd Defendants. RULING: ELCLC CASE NO. E024 OF 2024 Page 54 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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(d)No appearance for the 2nd Defendant. RULING: ELCLC CASE NO. E024 OF 2024 Page 55 of 55 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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