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Court of AppealStruck OutNot stated in judgment (Civil Application, Court of Appeal, Mombasa)

Kenya Orient Insurance Company Ltd v Alubale & another (Suing for and on Behalf of Silvano Okili Mbandu (Deceased)) & another (Civil Application E093 of 2025) [2026] KECA 907 (KLR)

Court of Appeal of Kenya
15 May 2026
1,080 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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The Court of Appeal struck out a stay application because the applicant never filed a notice of appeal against the specific ruling it wanted stayed.

What this practically means

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Executive summary

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This is a single-judgment-of-the-court ruling of the Court of Appeal at Mombasa (Murgor, Laibuta and Ngenye-Macharia, JJA) on the applicant's Notice of Motion dated 29th October 2025 seeking stay of a ruling and orders of the Employment and Labour Relations Court at Mombasa dated 27th March 2025. Those orders, made in the 1st respondents' suit arising from a Director of Occupational Safety and Health Services award for the death of Silvano Okili Mbandu, had joined the applicant to the 1st respondents' application and directed it to satisfy the assessed sums. The ELRC (Monica Mbaru, J.) later dismissed, by ruling dated 30th June 2025, the applicant's application to set aside those orders. The applicant filed a Notice of Appeal dated 2nd July 2025 against the 30th June 2025 ruling, but no notice of appeal against the 27th March 2025 orders it sought to stay. The Court held that a notice of appeal is a jurisdictional prerequisite, following the Supreme Court's decisions in University of Eldoret v Sitienei and Salat v IEBC as applied in Apungu Arthur Kibira v IEBC. Since no notice of appeal existed against the orders of 27th March 2025, the applicant had not expressed any intention to appeal against them and had not invoked the Court's jurisdiction. The Court struck out the Motion as incompetent and, as no respondent responded to the Motion, made no orders as to costs. The judgment is dated 15th May 2026.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant had validly invoked the Court's jurisdiction by lodging a notice of appeal against the ruling and orders of 27th March 2025 sought to be stayed
  2. 2.Whether stay of the ELRC ruling of 27th March 2025 pending appeal could be granted in the absence of such a notice of appeal

Key legal issues

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01

Whether the Court's jurisdiction was properly invoked in respect of the orders of 27th March 2025

Holding

It was not; the only notice of appeal on record related to the ruling of 30th June 2025, not to the orders of 27th March 2025 sought to be stayed, so the Motion was incompetent

Reasoning

The Court distinguished between the two ELRC decisions: the Notice of Appeal dated 2nd July 2025 challenged the ruling of 30th June 2025 dismissing the applicant's application to set aside, whereas the stay was sought against the orders of 27th March 2025 joining the applicant and directing it to satisfy the award. Relying on Supreme Court and Court of Appeal authority that a notice of appeal is a jurisdictional prerequisite, the Court held that in the absence of a notice of appeal against the 27th March 2025 orders, the applicant had not expressed any intention to appeal against them, and the Motion could not stand.

p. 3

Legal principles established

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  • A notice of appeal is a jurisdictional prerequisite to the Court of Appeal entertaining an application or appeal; absent a notice of appeal against the decision sought to be impugned or stayed, the Court's jurisdiction is not invoked
  • The filing of a notice of appeal is unconditional and signifies the intention to appeal

Court orders

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  1. 1.The applicant's Notice of Motion dated 29th October 2025 was struck out as incompetent
  2. 2.No orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
On appeal from
Employment and Labour Relations Court at Mombasa
Misc. ruling in ELRC Misc. App. No. E013 of 2025
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over ELRC decisions; invocation of jurisdiction premised on a valid notice of appeal

Relief refused

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Stay of the ELRC ruling and orders dated 27th March 2025 pending hearing and determination of the intended appeal

No notice of appeal was lodged against the ruling and orders of 27th March 2025; a notice of appeal is a jurisdictional prerequisite, so the Court's jurisdiction was never invoked

p. 3

Costs

No orders as to costs, since none of the respondents responded to or submitted on the Motion: "we make no orders as to costs"

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

“ A notice of appeal is a primary document to be filed outright whether or not the subject matter under appeal is that which requires leave or not. It is a jurisdictional pre-requisite.
p. 3Notice of appeal as jurisdictional prerequisite
“The filing of a notice of appeal is not premised on any occurrence or condition to be fulfilled by the appellant. The filing of a notice of appeal signifies the intention to appeal.”
p. 2Unconditional nature of the notice of appeal
we reach the inescapable conclusion that the applicant’s Motion is incompetent and is hereby struck out
p. 3Final orders - striking out of the Motion
we make no orders as to costs. Orders accordingly.
p. 3Final orders - costs

Issues in the judgment

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minor

The name of the applicant before the Court is never stated in the judgment; the judgment refers only to 'the applicant' throughout

minor

The judgment spells the ELRC Judge's name inconsistently as 'Monica Mbaru' and 'Monica Mvaru'

minor

The case number of the application before the Court of Appeal is not stated in the 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, "Kenya Orient Insurance Company Ltd v Alubale & another (Suing for and on Behalf of Silvano Okili Mbandu (Deceased)) & another (Civil Application E093 of 2025) [2026] KECA 907 (KLR)", Case Analysis (2026). Not stated in judgment (Civil Application, Court of Appeal, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/907/eng@2026-05-15

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