Bakery, Confectionery, Food Manufacturing & Allied Workers Union [K] v Sameer Agriculture and Livestock Limited & another (Cause 149 of 2018) [2025] KEELRC 191 (KLR)
The bottom line
#A Kenyan court ruled that a company using outsourced workers is a co-employer and must share liability when those workers are unfairly terminated.
What this practically means
#Executive summary
#Key legal issues
#Identity of the employer in an outsourcing arrangement
Both Respondents were Co-Employers of the Grievant; liability is joint.
The Court applied its earlier decision in Maundu & 40 Others v. Beirsdorf, holding that where the outsourcing agreement obliges the recipient of labour services to set recruitment standards, provide working conditions, and discipline workers, the recipient exercises a large and direct degree of control, making it a Co-Employer. The Grievant worked at the 1st Respondent's premises, under its supervision, performing a core invoicing function in its supply chain, and the agreement was used to dissimulate the employment relationship.
Fairness and lawfulness of termination
Termination was unfair and unlawful under Sections 40, 41, 43 and 45 of the Employment Act.
The Grievant was told there was no more work and was never returned to work, entitling him to believe his position was declared redundant. Neither Respondent took him through the redundancy process prescribed by Section 40. The 2nd Respondent, a Co-Employer, filed no response and gave no evidence justifying the termination, and the 1st Respondent offered no facts demonstrating a fair process.
Remedies for unfair termination
Compensation of 4½ months' salary, one month's notice pay, annual leave, severance pay, and a certificate of service awarded; reinstatement and duplicative declarations refused.
Compensation was assessed at 4½ months given the Grievant's two years of service, lack of contribution to the termination, and non-disclosure of mitigation. Notice pay and severance were granted as prayed. Annual leave was allowed because the Respondents failed to produce leave records as required by Section 74(1)(f) and Section 10(3)(a) of the Employment Act. Reinstatement was time-barred under Section 12 of the E&LRC Act.
Legal principles established
#- Where an outsourcing agreement gives the recipient of labour services a large and direct degree of control over outsourced employees, the recipient becomes a Co-Employer with the supplier, with joint liability to the employees.
- An outsourcing arrangement intended to disguise an employment relationship does not defeat the true employment relationship where the employee renders labour under the direction, supervision and subordination of the recipient.
- An employer who asserts that termination complied with the law must justify the process; failure by a co-employer to respond to the claim or give evidence leaves termination unjustified under Sections 40, 41, 43 and 45 of the Employment Act.
- Where the employer fails to produce annual leave records as required under Section 74(1)(f) of the Employment Act, the Court may accept the employee's oral evidence of leave entitlement.
Court orders
#- 1.It is declared that termination of the Grievant's employment by the Respondents was unfair and unlawful
- 2.The Respondents shall pay to the Grievant through the Claimant the equivalent of 4 ½ months' salary in compensation for unfair termination at Kshs. 81,000; 1-month salary in lieu of notice at Kshs. 18,000; annual leave at Kshs. 29,077; and severance at Kshs. 18,000 – total Kshs. 146,077
- 3.Certificate of Service to issue
- 4.Costs to the Claimant
- 5.The Judgment is executable against the Respondents, jointly and severally
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the E&LRC Act, Section 12 (reference to remedies; statutory limit on reinstatement)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bakery, Confectionery, Food Manufacturing & Allied Workers Union [K] v Sameer Agriculture and Livestock Limited & another (Cause 149 of 2018) [2025] KEELRC 191 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/191/eng@2025-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.