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ELRCOtherNot stated in judgment· [2025] KEELRC 889 (KLR)
Bakery Confectionery Food Manufacturing & Allied Workers Union (K) v Sunveat Foods Limited; Temo Trading Services (Interested Party) (Cause 375 of 2019) [2025] KEELRC 889 (KLR)
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·~3 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This ruling by the Employment and Labour Relations Court at Nairobi (Linndolo J) deals with a notice to show cause why the Claimant Union's claim should not be dismissed for want of prosecution. The Claimant, through a replying affidavit sworn by its General Secretary, Danchael Mwangure, explained that by a ruling of 7th December 2023 the Court had joined Temo Trading Services as an Interested Party; during that application it emerged that the employees outsourced to Temo Trading Services Limited had been re-absorbed by the Respondent. This compelled the Union to collect and collate documentary evidence on the employment status of 203 employees, delaying the filing of amended pleadings. A draft Further Amended Memorandum of Claim was ready, and the Claimant also pointed out that the notice to show cause taken out on 7th June 2024 was outside the one-year threshold in the Procedure Rules. The Court set out Rule 43 of the Employment and Labour Relations Court (Procedure) Rules and applied the principles in Ivita v Kyumbu [1984] eKLR 441, namely whether the delay is prolonged and inexcusable and whether justice can nevertheless be done. Holding that the Claimant had duly explained the delay and that it was not inordinate, the Court declined to dismiss the suit and instead directed the Claimant to file and serve its Further Amended Memorandum of Claim within seven days, with the Respondents to respond within fourteen days thereafter. No costs order was made. Delivered virtually at Nairobi on 20th March 2025.
Key legal issues
#01
Whether the suit should be dismissed for want of prosecution under Rule 43 of the ELRC (Procedure) Rules
Holding
Dismissal refused; the delay was explained and not inordinate
Reasoning
Rule 43 permits dismissal where no action is taken within one year of filing unless reasonable cause is shown. The Court applied the Ivita v Kyumbu test. The Claimant explained that after the joinder ruling of 7th December 2023 it emerged the outsourced employees had been re-absorbed by the Respondent, requiring collection and collation of data on 203 employees, which caused the delay. A draft Further Amended Memorandum of Claim was ready. The Court found the delay not inordinate and directed timelines for filing and response rather than dismissal.
p. 2
Legal principles established
#- Test for dismissal for want of prosecution: whether the delay is prolonged and inexcusable and whether justice can still be done despite the delay, with the burden on the party alleging prejudice
Court orders
#- 1.Claimant directed to file and serve its Further Amended Memorandum of Claim within seven (7) days from the date of the ruling
- 2.Respondents to have fourteen (14) days thereafter to respond to the Further Amended Claim
- Jurisdiction invoked
- Employment and Labour Relations Court (Procedure) Rules, Rule 43
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) [2025] KEELRC 889 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/889/eng@2025-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.