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ELRCPartially AllowedCause No E693 of 2024· [2025] KEELRC 1787 (KLR)

Bakery Confectionery Food Manufacturing and Alled Workers Union v Capwell Industries Limited (Cause E693 of 2024) [2025] KEELRC 1787 (KLR)

Employment and Labour Relations Court
19 June 2025
CBC. N. Baari
4,345 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that letting workers continue past their contract's end impliedly renews it, making dismissal without reasons unfair.

What this practically means

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Executive summary

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The Claimant union challenged termination notices dated 8th August 2024 issued to its union members, fixed-term casual workers whose contracts began on 1st January 2024. It argued that under Clause 31 of the CBA adopted on 25th January 2024, the longest serving casuals were to be converted to permanent employment in phases, that the contracts had been impliedly renewed after 31st March 2024, and that the terminations violated the CBA and Article 41 of the Constitution. It sought a declaration of unfair termination, quashing of the notices, reinstatement or maximum compensation of 12 months' wages under Section 49 of the Employment Act, interest and costs on a higher scale. The Respondent maintained it had complied with the CBA by converting 20 casuals to permanent employment, that the grievants fell outside the conversion criteria and their contracts lapsed by effluxion of time. It objected that the claim breached the exhaustion doctrine, the parties having gone to conciliation the same day suit was filed, and that it was res judicata given the Conciliator's decision of 5th December 2024. The court held that because the Claimant sought injunctive reliefs unavailable in conciliation, the ADR mechanism was ineffective and exhaustion did not apply; that a Conciliator's recommendation is neither a judgment nor final, so the suit was not res judicata; that continued work past the contract expiry implied renewal and created a legitimate expectation, and termination before the next CBA conversion phase without reasons breached the CBA, rendering the terminations unfair and unlawful. Reinstatement was refused for want of exceptional circumstances; the court awarded each grievant 8 months' salary and made no order on costs in the interest of social partnership.

Key legal issues

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01

Whether the claim violated the doctrine of exhaustion

Holding

The claim did not violate the doctrine because the injunctive reliefs sought were unavailable under conciliation, rendering the ADR mechanism ineffective

Reasoning

The Claimant reported a trade dispute to the Cabinet Secretary and simultaneously filed suit under certificate of urgency seeking injunctions to stop imminent terminations. Relying on Adipo and National Assembly of Kenya v Kina, the court held that where an alternative remedy entails delay or cannot provide the relief sought, it is not effective. Conciliation had in fact been completed during the pendency of the claim, yet the court found no violation.

p. 7
02

Whether the suit is res judicata

Holding

The suit is not res judicata because a Conciliator's recommendation is neither a judgment nor final

Reasoning

Section 7 of the Civil Procedure Act requires a former suit heard and finally decided by a competent court. The only prior decision was a conciliator's recommendation of 5th December 2024, which is not a judgment of a court and lacks finality. Applying John Florence Maritime Services, the elements of res judicata were not met.

p. 8
03

Whether the grievants were unfairly terminated

Holding

Yes - the termination was unfair both procedurally and substantively, and violated the CBA

Reasoning

The grievants on three-month fixed term contracts from 1st January 2024 were not told the fate of their contracts after 31st March 2024 but worked on for five more months, amounting to implied renewal and a legitimate expectation of renewal. Further, the Respondent terminated them before the next CBA conversion phase (1/1/2025) without reasons, contrary to Clause 31 of the CBA. The termination was therefore unfair and unlawful.

p. 8
04

Whether the Claimant was entitled to the remedies sought

Holding

Declaration and compensation of 8 months' salary granted; reinstatement refused for want of exceptional circumstances and practicability

Reasoning

Relying on the South African LAC in Passenger Rail Agency of South Africa v Ngoye, the New Zealand case of New Zealand Educational Institute, and Kenya Airways v Aviation & Allied Workers Union, the court held reinstatement is discretionary and exceptional. The Claimant led no evidence that reinstatement was the most efficacious remedy. As unfair termination was established, compensation of 8 months' salary was awarded instead of the maximum 12 months sought.

p. 9

Legal principles established

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  • Where a party seeks interim injunctive reliefs not available under conciliation, the alternative dispute resolution mechanism is not effective and the doctrine of exhaustion does not apply
  • A Conciliator's decision is not a judgment and is not final in nature so as to render a subsequent suit res judicata
  • Continued work after expiry of a fixed term contract without communication implies renewal and gives rise to legitimate expectation of continued renewal; termination without valid reason is unfair
  • Reinstatement should only be granted in very exceptional circumstances and where practicable

Court orders

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  1. 1.A declaration that the termination of the grievants is unfair and unlawful
  2. 2.An order for payment of 8 months' salary to each of the grievants on account of the unfair termination
  3. 3.No orders on costs in the interest of social partnership

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41; Article 159(2)(c)
  • Employment Act, 2007Section 49
  • Civil Procedure ActSection 7
  • Labour Relations Act, 2007Not specified
  • Fair Administrative Action ActSection 9(4)
  • Employment & Labour Relations Court (Procedure) Rules, 2016Rule 5(b)

Cases cited (10)

  • Roy Trans motors Limited & another v Kenya Bureau of Standards
    (Commercial Case E301 of 2023) [2024] KEHC 2952
  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    [2014] KESC 53 (KLR)
  • Transparency International - Kenya v Omondi
    [2023] KECA 174 (KLR)
  • Adipo v Secretary/ CEO Law Society of Kenya & Anor
    [2024] KEHC 12811 (KLR)
  • National Assembly of Kenya V. Kina & Another
    KECA 548 (KLR)
  • John Florence Maritime Services Limited & Another v. Cabinet Secretary Transport & Infrastructure & 3 Others
    (2021) KESC 39 (KLR)
  • Mbatia v Kirinyaga & Sanitation Company (KIRIWA SCO)
    [2023] KELRC 3364 (KLR)
  • Passenger Rail Agency of South Africa and Others v Ngoye and Others
    [2024] 45 ILJ 1228 (LAC)
  • Kenya Airways Limited vs Aviation & Allied Workers Union Kenya & 3 Others
    [2014] eKLR
  • New Zealand Educational Institute v. Board of Trustees Auckland Normal Intermediate School
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour disputes (Labour Relations Act, 2007; Employment Act, 2007)

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 and Alled Workers Union v Capwell Industries Limited (Cause E693 of 2024) [2025] KEELRC 1787 (KLR)", Case Analysis (2025). Cause No E693 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1787/eng@2025-06-19

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