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ELRCStruck OutELRC Appeal No. 4 of 2018· [2018] KEELRC 1577 (KLR)

Unilever (K) Limited v Richard Ombati Kiboma [2018] KEELRC 1577 (KLR)

Employment & Labour Relations Court of Kenya
29 June 2018
DMD. K. Njagi Marete
597 words in judgment
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The bottom line

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Unilever's appeal was struck out because the former employee was never served with court documents, so the magistrate's wrongful termination awards stood.

What this practically means

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Executive summary

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The appellant, Unilever (K) Limited, appealed against a magistrate's decision finding wrongful termination of the respondent, Richard Ombati Kiboma, and awarding him gratuity of Kshs.90,640, salary for December 2005 and pro-rata leave totalling Kshs.16,480, one-way fare of Kshs.1,380, and costs. The appeal had a troubled history: the respondent's original advocate, Mrs. Alice Oange of Oange & Company Advocates, died and her firm ceased to exist. The court allowed an application deeming the firm no longer on record and permitted personal service, later substituting service by registered post when personal service failed. A process server's Affidavit of Service sworn on 8th June 2018 showed he could not trace the respondent at Jamji Factory, his last known workplace, and returned the documents unserved. Despite this, the appellant asserted on 22nd June 2018 that service had been effected and filed written submissions. Marete J found, on the affidavit evidence, that no service of process had been effected on the respondent, rendering the assertion of service baseless. The court held the appeal could not stand or proceed to judgment and struck it out, ordering each party to bear their own costs. No determination was made on the merits of the termination or the quantum of the awards.

Key legal issues

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01

Whether service of process on the respondent was effected

Holding

The court held that no service was effected, as confirmed by the process server's Affidavit of Service showing the documents were returned unserved.

Reasoning

The process server, Erick Vickson Kimutai, swore that he was unable to trace the plaintiff at his last known workplace, Jamji Factory, and that his contact was unknown, returning the documents unserved. The court therefore found the appellant's claim of service on 22nd June 2018 unfounded.

p. 2
02

Whether the appeal could proceed to judgment without service on the respondent

Holding

The appeal could not stand or proceed to judgment in the absence of service.

Reasoning

Given the sworn evidence that the respondent was never served, the appellant's assertion of service lacked foundation. Proceeding to judgment without service on the respondent would offend fair hearing requirements, so the court struck out the appeal.

p. 2

Legal principles established

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  • An appeal cannot proceed to judgment where no service of process has been effected on the respondent.

Court orders

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  1. 1.Appeal struck out
  2. 2.Each party to bear their own costs of the appeal
On appeal from
Magistrates' Court
Jurisdiction invoked
Appellate jurisdiction of the Employment & Labour Relations Court over appeals from the magistrates' court (Memorandum of Appeal dated 23rd April, 2009)

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, "Unilever (K) Limited v Richard Ombati Kiboma [2018] KEELRC 1577 (KLR)", Case Analysis (2018). ELRC Appeal No. 4 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1577/eng@2018-06-29

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