Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedNotice of Motion dated 12th October 2023 in the main suit· [2023] KEELRC 3250 (KLR)

Bakery Confectionery Food Manufacturing & Allied Workers Union (K) v Sunveat Foods Limited; Temo Trading Services (Interested Party) (Cause 375 of 2019) [2023] KEELRC 3250 (KLR)

Employment and Labour Relations Court
7 December 2023
LNLINNET NDOLO
1,242 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan employment court ruled that an outsourcing company must join a union dispute over workers, even though its contract had ended.

What this practically means

#

Executive summary

#
By Notice of Motion dated 12th October 2023, the Claimant trade union sought to join Temo Trading Services as an interested party or co-respondent and to amend its Statement of Claim accordingly. The main suit seeks orders compelling the Respondent to remit trade union dues and execute a Recognition Agreement. The Respondent's amended Statement of Defence avers that some employees recruited by the Claimant were outsourced from Temo Trading Services, but no employment records were attached. Temo opposed the application through a replying affidavit of its proprietor, Ezekiel Adagi, deponing that its Labour Outsourcing Agreement of 28th May 2013 (varied on 1st February 2017) was terminated with effect from 2022 and that it had no outsourced employees with the Respondent. The court, per Linnet Ndolo J, applied Order 1 Rule 15(1) of the Civil Procedure Rules and the authorities in Interactive Advertising Limited and Gachago v Attorney General, holding that third party joinder does not depend on a subsisting contract. Since the number of employees recruited by the Claimant is central to the dispute, and Temo is custodian of the records of the outsourced employees, Temo was a necessary party. The court ordered joinder, allowed the Claimant to amend its claim within 21 days with 21 days for response, and directed that costs of the application be in the cause.

Key legal issues

#
01

Whether joinder of Temo Trading Services is warranted where the outsourcing agreement has been terminated

Holding

Joinder was ordered because the question whether some employees were outsourced from Temo Trading Services is central to the dispute, regardless of termination of the contract

Reasoning

The court relied on Gachago v Attorney General to hold that third party joinder does not depend on a subsisting contract. Determination of the dispute will turn on the number of employees recruited by the Claimant, and whether some were outsourced from Temo. As custodian of the outsourced employees' records, Temo is a necessary party enabling discovery and full adjudication of all issues.

p. 3

Legal principles established

#
  • Third party proceedings are not dependent on the existence of a contract binding on the third party
  • A party who is custodian of records central to the dispute is a necessary party

Court orders

#
  1. 1.Order for joinder of the Intended Interested Party (Temo Trading Services) in the proceedings
  2. 2.Leave for the Claimant to amend its claim within 21 days
  3. 3.Respondent and Third Party to respond within 21 days of the amendment
  4. 4.Costs of the application in the cause

Authorities

#

Legislation

  • Civil Procedure RulesOrder 1 Rule 15(1)
  • Constitution of Kenya, 2010Article 41(2)(c)

Cases cited (2)

  • Interactive Advertising Limited & Another v Equity Bank Limited & 2 others
    [2016] eKLR
  • Gachago v. Attorney General
    [1981] KLR 232
Jurisdiction invoked
Order 1 Rule 15(1) of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Bakery Confectionery Food Manufacturing & Allied Workers Union (K) v Sunveat Foods Limited; Temo Trading Services (Interested Party) (Cause 375 of 2019) [2023] KEELRC 3250 (KLR)", Case Analysis (2023). Notice of Motion dated 12th October 2023 in the main suit. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3250/eng@2023-12-07

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