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ELRCPartially AllowedNot stated in the judgment· [2023] KEELRC 535 (KLR)

Bakery Confectionery Food Manufacturing & Allied Workers Union v Manji Food Industries Ltd (Cause 125 of 2017) [2023] KEELRC 535 (KLR)

Employment and Labour Relations Court
6 March 2023
JGJacob Gakeri
5,254 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled the workers' lock-out unfair because the employer skipped a proper investigation and hearing, awarding compensation, notice pay, costs and interest.

What this practically means

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Executive summary

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The Claimant union sued on behalf of three grievants, Clifie Onganga, Malachi Ogere and Jacob Mbohe, alleging victimization and unlawful lock-out by the Respondent following an incident on 26th February 2016 in which a bolt was found in a moulding machine during the grievants' night shift. The grievants were issued show-cause letters, suspended for 14 days on 4th March 2016 to facilitate investigations, and never recalled to work. The court framed four issues: whether Jacob Mbohe was a casual employee; whether the union had standing to represent the grievants; whether the termination was unfair; and entitlement to reliefs. It held that Mbohe, engaged under renewable three-month contracts and still working after his last contract lapsed, was a term employee under Section 37 of the Employment Act, not a casual. The union had locus standi, as the Respondent had admitted union membership and was estopped to allege otherwise. The lock-out was substantively and procedurally unfair: no investigation report attributed culpability, the grievants were not informed of the outcome, no disciplinary hearing was held under Section 41, and the desertion claim was unsupported. The suit succeeded in part: a declaration of unlawful and unfair lock-out, one month's notice pay and 3 months' (Onganga) and 2 months' (Mbohe) salary as compensation under Section 49(1)(c), with costs and interest from the date of judgment. Claims for severance (no redundancy), pro rata leave, travelling allowances and unpaid days were declined for want of substantiation.

Key legal issues

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01

Whether Jacob Mbohe was a casual employee

Holding

He was not; his employment was a term contract.

Reasoning

Mbohe worked under renewable three-month contracts since 2010, and after his last contract lapsed on 31st January 2016 he continued working pending a new contract and was on duty on 26th February 2016. The Respondent led no evidence that he was paid at the end of each day, which Section 2 requires of a casual employee, and did not controvert his evidence of continuous service from 2010. Section 37 deemed his contract to be one paid monthly.

p. 7
02

Whether the Claimant union had the right to represent the grievants

Holding

Yes; the Respondent had admitted membership, so it was estopped to allege otherwise by submissions.

Reasoning

The Court of Appeal decision in Modern Soap Factory confirms a registered union whose constitution empowers it may sue for its members, per Article 41 of the Constitution and Section 22 of the Employment Act. RWI confirmed in cross-examination that the grievants were union members, and the union's 4th April 2016 letter confirmed involvement. The Respondent could not contradict that admitted fact through submissions.

p. 8
03

Whether the termination (lock out) of the grievants was unfair

Holding

Yes; it was both substantively and procedurally wanting.

Reasoning

The grievants were suspended for 14 days to facilitate investigations into a bolt found in the moulding machine, but no investigation report attributed culpability to them and they were never informed of the outcome. RWI confirmed all post-suspension communication was oral, no disciplinary hearing took place, and the claim of desertion was unsupported by evidence of steps to recall the employees. Section 41 of the Employment Act was not complied with; the termination lacked valid reason and fair procedure.

p. 10
04

Whether the grievants were entitled to the reliefs sought

Holding

Partially; declaration and notice pay plus compensation were awarded, but severance, pro rata leave and unpaid-days claims failed for want of evidence or basis.

Reasoning

The declaration of unlawful lock out and one month's notice pay were merited; compensation under Section 49(1)(c) was assessed at 3 months' salary for Onganga (about 10 years' service, clean record, no contribution) and 2 months for Mbohe (about 6 years' service). Severance failed as there was no redundancy; leave and unpaid-days claims were unsubstantiated.

p. 11

Legal principles established

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  • An employee serving under renewable three-month contracts is not a casual employee within the meaning of Section 2 of the Employment Act; continuous service converts the engagement to a term contract under Section 37.
  • A registered trade union with constitutional mandate has locus standi to sue on behalf of its members.
  • An employer alleging desertion must prove the steps it took to contact the employee to resume duty and any further action, including a notice to show cause.
  • A termination must be both substantively justifiable and procedurally fair to pass the fairness test.

Court orders

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  1. 1.Declaration that the lock out of the grievants by the Respondent was unfair and unlawful.
  2. 2.Clifie Ongaga: one month's salary in lieu of notice.
  3. 3.Clifie Ongaga: the equivalent of 3 months' salary.
  4. 4.Jacob Mbohe: one month's salary in lieu of notice.
  5. 5.Jacob Mbohe: the equivalent of 2 months' salary.
  6. 6.Costs of the suit to the Claimant.
  7. 7.Interest at court rates from date of judgment till payment in full.

Authorities

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Legislation

  • Employment ActSection 37(1)
  • Employment ActSection 2 (definition of casual employee)
  • Employment ActSections 43, 45, 47(5), 41, 49(1)(c), 35(1)(c), 22
  • Constitution of KenyaArticles 41, 258(2)(d), 159(2)(d), 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (15)

  • Bakery Confectionary Food Manufacturing & Allied Workers Union (K) V Kenafric Industries Ltd
    (2018) eKLR
  • Kenyatta University V Esther Njeri Maina
    (2020) eKLR
  • Philip Amwayi Wokinda V Rift Valley Railways Ltd
    (2018) eKLR
  • Peter Wangai V Egerton University
    (2019) eKLR
  • Bakery Confectionary Food Manufacturing and Allied Workers Union (K) V Wrigley Company (EA) Ltd
  • Julius Kyalo Malonza V Ruth Osolo t/a Eraeva Catering Services
    (2021) eKLR
  • Rashid Mazuri Ramadhani & 10 others V Doshi & Company (Hardware) Ltd & another
    (2018) eKLR
  • Modern Soap Factory V Kenya Shoe and Leather Workers Union
    (2020) eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd V West End Distributors Ltd
    (1969) E.A 696
  • Felistas Acheha Ikatwa V Charles Peter Otieno
    (2018) eKLR
  • Simon Mbithi Mbane V Inter Security Services Ltd
    (2018) eKLR
  • Judith Atieno Owuor V Sameer Agriculture and Livestock Ltd
    (2020) eKLR
  • Walter Ogal Anuro V Teachers Service Commission
    (2013) eKLR
  • Naima Khamis V Oxford University Press (EA) Ltd
    (2017) eKLR
  • Pius Machafu Isindu V Lavington Security Guards Ltd
    (2017) eKLR
Jurisdiction invoked
Concurrent jurisdiction under the Employment Act, 2007 and Article 41 of the Constitution on labour relations (first-instance ELRC claim)

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, "Bakery Confectionery Food Manufacturing & Allied Workers Union v Manji Food Industries Ltd (Cause 125 of 2017) [2023] KEELRC 535 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/535/eng@2023-03-06

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