Bakery, Confectionery, Food Manufacturing and Allied Workers’ Union (KENYA) v Premier Cookies Limited [2014] KEELRC 557 (KLR)
The bottom line
#Kenya's Employment Court declined to protect 39 employees from termination, ruling that expired fixed-term contracts cannot be extended through interim orders.
What this practically means
#Executive summary
#Key legal issues
#Interim relief under the Giela v Cassman Brown principles
Although an apparent infringement of a right calling for rebuttal was shown, the absence of irreparable harm and the balance of convenience defeated the application
The court applied the three-part Giela v Cassman Brown test. It found an apparent infringement warranting explanation, but held damages would adequately compensate the Grievants since their memorandum of claim includes a claim for damages, and that convenience did not lie in imposing an employment contract on an employer where the existence of the contract is disputed.
Effect of fixed term contracts on conservatory orders
The court cannot impose or extend employment beyond expired fixed term contracts at the interlocutory stage
The Respondent demonstrated that the 39 Grievants were on fixed term contracts expiring 30th November 2013, a fact allegedly not disclosed when the ex parte orders issued. The court held that its role is to enforce contractual obligations, not to impose a new contract on parties, and that interim orders would have that impermissible effect.
Abuse of process by serial urgent applications
Filing a fresh application before a different judge rather than responding to a pending application is an abuse of process that courts should refuse to entertain
The court criticised the Respondent for filing a fresh application on 26th November 2013 to set aside the ex parte orders instead of responding to the initial application, and criticised the second court for entertaining it, noting this caused proliferation of urgent applications on the same subject matter.
Legal principles established
#- A court cannot extend employment beyond the terms of fixed term contracts of service
- Filing a fresh application before a different judge instead of responding to a pending application is an abuse of court process
- At interlocutory stage the court refrains from determining the merits
Court orders
#- 1.The application for interim orders pending the hearing of the main suit is dismissed
- 2.The matter to proceed on the merits
- 3.Costs in the cause
- Jurisdiction invoked
- Not expressly stated; Employment and Labour Relations Court acting under the Labour Relations Act, 2007 and Article 41 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bakery, Confectionery, Food Manufacturing and Allied Workers’ Union (KENYA) v Premier Cookies Limited [2014] KEELRC 557 (KLR)", Case Analysis (2014). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/557/eng@2014-03-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.