a. Whether or not this suit ought to be reinstated.
24.This suit was dismissed on 20th September, 2022 by an order of the court for want of prosecution.
25.The dismissal was pursuant to the provisions of Order 17 Rule 2 of the Civil Procedure Rules, which provides as follows;1.In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.2.If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit.3.Any party to the suit may apply for its dismissal as provided in sub-rule 1.4.The court may dismiss the suit for non-compliance with any direction given under this Order.
26.The power to dismiss a suit for want of prosecution is at the court’s discretion. In the judicial decision in Nilesh Premchand Mulji Shah & Another t/a Ketan Emporium v M.D. Popat and others & another  eKLR, the court stated as follows:
27.The Learned Judge in Kestem Company Ltd v Ndala Shop Limited & 2 others  eKLR was of the view that dismissal for want of prosecution does not require service of notice. It was stated thus;
28.In the instant case, it is not in dispute that the last time the matter was in court was on 6th February, 2020. This is when the court referred the matter to mediation and ordered that it be mentioned before the mediation Deputy Registrar in 19th February, 2020
29.The court record shows that on 19th February, 2020 the matter was placed before the mediation Deputy Registrar but both parties failed to attend. The mediation Deputy Registrar ordered that parties be served with a mention notice for 16th March, 2020.
30.The record also shows that previously a notice to show cause dated 27th December, 2019 had been issued in this suit. Both counsels received it on 14th February, 2020.
31.It is not disputed that both parties were served with the notice to show cause dated 25th May, 2022. The advocates received them same on 13th and 14th June, 2022.
32.The matter came up for hearing and only the Defendant’s advocate was present. He informed the court that the Plaintiff did nothing for almost 8 years except fixing the suit for mention for pretrial directions.
33.The court proceeded to dismiss the suit for want of prosecution.
34.The Plaintiff has attempted to blame the delay in prosecuting this matter on the Covid-19 Pandemic, ill health of his counsel and the mediation process , which I note he never attended. There is no evidence of illness of himself or his Counsel.
35.The judicial decisions cited above offer guidance on factors that need to be taken into consideration in allowing or disallowing an application for dismissal for want of prosecution. They are as follow;a.Whether the delay is prolonged and inexcusable.b.Whether justice can be done despite the prolonged delay, if the court is satisfied with the Plaintiff’s excuse for the delay, and that justice can still be done to the parties.In the event of (a) above, the suit shall be dismissed but in the event of (b) above, the suit shall not be dismissed but it shall be ordered that it be set down for hearing.
36.In dismissing this suit, this court took into consideration the fact that the suit had been filed in 2014 and that no steps had been taken to set it down for hearing since 6th February, 2020.
37.The Plaintiff despite being served with the notice to show cause, failed to attend court or file an affidavit in response of the notice to show cause. No explanation has been offered on the to failure to attend court to answer to the notice to show cause. It is also not true that this suit stalled on account of the mediation process. As shown earlier, the Plaintiff did not attend mediation.
38.It has been stated on numerous occasions and I do so again; justice delayed without explanation is justice denied and delay defeats equity - Nilesh Premchand Mulji Shah & Another t/a Ketan Emporium vs. MD Popat and others & another (Supra)