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ELRCDismissedNot stated in judgment· [2025] KEELRC 1944 (KLR)

Alubale & another (Suing for and behalf of the Estate of Silvano Okili Mbandi - Deceased) v Samumu Construction Services Limited & another (Miscellaneous Application E013 of 2025) [2025] KEELRC 1944 (KLR)

Employment and Labour Relations Court
30 June 2025
MMM. Mbarũ
682 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to let an insurer undo orders issued in its absence because it gave no convincing reason for missing the hearing.

What this practically means

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Executive summary

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This was a ruling on an application dated 3 April 2025 by the 2nd respondent, Kenya Orient Insurance Company Limited, seeking to set aside the judgment/ruling entered against it on 27 March 2025 and for leave to file its response with a draft preliminary objection. The background was an application by the Estate of Silvano Okili Mbandi (Deceased) to enforce an award by the Director for work injury, in which the 1st respondent, the deceased's insured employer, sought joinder of the insurer. That joinder application was heard on 27 March 2025 in the insurer's absence and allowed, with the court ordering the 2nd respondent to pay Ksh. 1,152,000 plus burial costs of Ksh. 654,200. The insurer asserted that its non-attendance was due to factors beyond its control and that it had insufficient time to respond. The applicants, through Linstone John Alubale, opposed the application as an abuse of process, citing a return of service and the absence of any reasonable cause for non-attendance. The court held that the obligation to attend court is not negotiable, following John Mukuha Mburu v Charles Mwenga Mburu [2019] KEELC 4676 (KLR), and that a party seeking relief from non-attendance must give convincing and satisfactory reasons. The insurer's affidavit did not particularise the alleged factors outside its control. Finding proper service, no attendance and no reasonable cause established, and no diligence until the draft decree for Ksh. 2,059,068 was served, the court dismissed the application with costs to the applicant. Judgment was delivered in open court at Mombasa on 30 June 2025.

Key legal issues

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Whether the orders of 27 March 2025 should be set aside and the 2nd respondent granted leave to file a response

Holding

The application was dismissed because the 2nd respondent was properly served, failed to attend court, and failed to establish reasonable cause for the non-attendance

Reasoning

The court found that the 2nd respondent admitted service of the application scheduled for hearing on 27 March 2025. Service was properly effected with returns of service on record. The applicant bore the burden of providing convincing and satisfactory reasons for non-attendance, but only vaguely asserted factors outside its control without particularising them. The supporting affidavit left the case bare, and no diligence was shown until the draft decree was served on 3 April 2025. The application was therefore without merit and was dismissed with costs to the applicant.

p. 2

Legal principles established

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  • The obligation to attend court is not negotiable, and a party seeking to set aside orders for non-attendance must provide convincing and satisfactory reasons for the non-attendance

Court orders

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  1. 1.The application dated 3 April 2025 is dismissed
  2. 2.Costs to the applicant

Authorities

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Cases cited (1)

  • John Mukuha Mburu v Charles Mwenga Mburu
    [2019] KEELC 4676 (KLR)
Jurisdiction invoked
Not stated in judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Alubale & another (Suing for and behalf of the Estate of Silvano Okili Mbandi - Deceased) v Samumu Construction Services Limited & another (Miscellaneous Application E013 of 2025) [2025] KEELRC 1944 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1944/eng@2025-06-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.