2.The Applicant’s application was supported by an affidavit sworn by his advocate, Kevin Seda who averred that an order of dismissal of the suit was made without notice to the Applicant/ Claimant or his advocate hence no cause was shown why the court should not dismiss the suit for want of prosecution.
3.That before dismissal of the suit, the Claimant was done with the hearing and was to file the summary of the case to take a judgment date. Further, the Claimant is keen on the suit being determined on merit as he has real chances of being paid on delivery of the judgment.
4.That denial of this Application will greatly prejudice the Claimant while the Respondent and its insurer will not suffer any prejudice if its allowed.
7.The Respondent submitted that the Applicant has not demonstrated any fresh evidence or any error on the face of the record to justify the review of the orders of this court dismissing the suit. The Respondent further submitted it is trite law that an application for review is strictly limited to correction of patent errors of law and fact relied on Sergii Gergel v ARFA AFRA LTD t/a IMAX Africa Ltd  eKLR which relied on the Indian Supreme Court decision in Ajit Kumar Rath –Versus- State of Orisa and Others on 02.11.1999 thus:-
8.It was submitted for the Respondent that the Claimant is guilty of laches as he has failed to demonstrate his reasons in prosecuting this suit or filing this application. It is said the Claimant has only relied on the assertion that they have a high chance of being paid once the judgment is delivered in his favour and this is not sufficient cause or an explanation of the delay.
Analysis and determination
9.Having considered the motion, supporting affidavit, grounds of opposition and submissions made by the parties, the first issue for determination by this court is whether the application to review, set aside and vary orders issued on 28th September 2021 is merited.
10.As submitted by the Respondent, the threshold for granting review by this court is provided by Rule 33(1) of the ELRC Rules, thus:-
11.In Elosy Murugi Nyaga vs Tharaka Nithi County Government & Another  eKLR the court when determining the merits of an application for review of its orders to dismiss the suit for want of prosecution stated: -
12.The Claimant brought this application for review of this court’s order of dismissal on 28th September 2021 based on rule 33 (1) (d) of the ELRC Rules. The Claimant avers that he did not receive notice from the court to show cause, however, this court has on record an affidavit of service sworn by the court’s process server confirming that indeed the notice to show cause was served to both the Claimant’s and Respondent’s advocates via email on 17th June 2021. Further, the Applicant has not provided this court with any evidence that during the past 2 years, he took any reasonable steps since the dismissal of his suit to ascertain the status of the case. In view of the foregoing, the Applicant has failed to justify the reason for review hence this application lacks merit.
13.The second issue for determination, is whether the application was filed after inordinate delay. From the face of the record the Claimant lodged this suit vide a memorandum of claim dated 11th August 2016, the matter was referred to Court annexed mediation on 24th July 2019. The parties vide the mediation report dated 24th September 2019 did not reach a settlement agreement and the matter was referred back to this court and placed for directions. On 28th September 2021, the matter was before this court to show cause, however, only the Respondent’s advocate attended court, further the Claimant did not put an affidavit to demonstrate any effort made to conclude the matter. There is evidence on record the Applicant’s former advocate on record was duly served with the notice to show cause on 17th June 2021.
14.The Court of Appeal in Patrick Wanyonyi Khaemba vs Teachers Service Commission & 2 others  eKLR held: -
15.It is not in dispute that this application was lodged 2 years after this court dismissed this suit for want of prosecution, the Claimant has not justified the reasons why he did not lodge the application earlier, therefore this court holds the delay is unreasonable and inordinate delay and it will be difficult to extend its discretion to vary its orders for dismissal of the suit.
16.Having found that the application lacks merit and that it has been made after an inordinate delay, and that there is no justifiable reason to review the courts order of 28th September 2021, the application is dismissed.
17.Each party will meet its costs.Orders accordingly.