Analysis And Determination
7.In light of the issues arising from the application, the response thereto and the applicable law, it is clear that the main question calling for the court’s resolution is whether the suit is liable for dismissal for want of prosecution.
10.The import of rule 16(1) of this court’s rules is that a suit that has been inactive or idle for a period of more than one year, is liable for dismissal for want of prosecution. Nevertheless, it is not given that an idleness of one year automatically translates to the dismissal of a suit. Therefore, each case must thus be considered on its own merit and the circumstances leading to the delay in prosecution of a case ought to be given due consideration.
11.Opposing the application for dismissal, the claimant’s advocate exhibited a copy of email correspondence exchanged between himself and the court registry. In an email of July 13, 2020, the claimant’s advocate addressed the court registry requesting for a hearing date. In response, the registry informed the claimant’s advocate to await the diary for 2018 matters to be opened.
12.In another email of May 21, 2021, the claimant’s advocate enquired from the court registry whether the diary for fixing hearing dates for 2018 matters was open or when it was scheduled to be opened.
13.He further exhibited another email of August 23, 2021, to the court seeking for an appropriate date to invite the respondent to pick a hearing date. In response to the said email, the registry advised that priority was being given to 2017 matters and below for hearing. Through an email of August 24, 2021, the claimant’s advocate enquired when the diary for 2018 matters open.
14.Another email of September 17, 2021 was exhibited in which the claimant’s advocate once again enquired from the court registry whether they could initiate the process of fixing a date for the instant matter.
15.On his part, the applicant exhibited a notice from court inviting advocates and litigants that the court was fixing 2019 and 2020 matters for hearing. Notably, the said notice was issued in January, 2023.
16.The factors to be taken into consideration by the courts when determining whether to dismiss a suit for want of prosecution have been settled by case law over time. Case in point is Ivita v Kyumbu (1984) K.LR 441, where it was held as follows;
17.Applying the test set out in the aforementioned authority to the case herein, the question that arises, is whether the claimant herein is guilty of inexcusable and inordinate delay?
18.From the email correspondence exchanged between the court registry and the claimant’s advocate, it is apparent that he made several attempts to have the matter fixed for hearing and the response from the court registry was that the diary for 2018 matters was yet to be opened.
19.Therefore, it is apparent that the delay in prosecution of the matter is not entirely attributable to the claimant. The delay cannot therefore be termed as inordinate and inexcusable.
20.It is also notable that the notice for fixing of the 2019 and 2020 matters was issued in January, 2023. It is not clear whether a similar notice was issued for 2018 matters. Noting the email correspondence between the court registry and the claimant’s advocate, that as at 2021, the court registry was yet to open the diary for 2018 matters, I am minded to give the claimant benefit of doubt in this regard.
21.Besides, the court takes judicial notice of the Covid 19 pandemic which interfered with normal court operations for the better part of 2020 and sometimes in 2021. Accordingly, the claimant’s delay in prosecuting the matter cannot be deemed as inexcusable.
22.The court further notes that dismissal of a suit is a draconian act as it drives a litigant away from the seat of justice and as such, discretion ought to be exercised judiciously. This position was amplified in the case of John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation)  eKLR where the court held that:
23.In the circumstances, I will not allow the application as prayed and instead, I will direct that the matter be listed for hearing on a priority basis noting that it is a 2018 matter.
24.Costs shall be in the cause.