Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedMemorandum of Claim dated 20th April 2021 (ELRC)

Bakery Confectionery Food Manufacturing & Allied Workers Union (K) v Sameer Agricultural Livestock (K) Limited & another (Cause E346 of 2021) [2025] KEELRC 1976 (KLR)

Employment and Labour Relations Court
3 July 2025
5,251 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

#

Kenya's Employment Court ruled an outsourced worker was unfairly dismissed without any hearing, and both the agency and the host company must pay.

What this practically means

#

Executive summary

#
The Claimant union, which held a recognition agreement with the 1st Respondent, brought this claim on behalf of a grievant employed by the 2nd Respondent in September 2014 as a Dispatcher and deployed to the 1st Respondent's premises under a labour outsourcing agreement. The grievant joined the union in 2017, was denied entry to the workplace in May and June 2018 after circulating notice of a union meeting to elect a works committee, and was terminated by the 2nd Respondent by letter dated 25th June 2018 on grounds of planning a strike, disobedience and gross misconduct. The union sought declarations that the termination and the outsourcing arrangement were unlawful and discriminatory, and terminal dues of Kshs 1,242,346. The 2nd Respondent filed no response and adduced no evidence. The 1st Respondent denied any employment relationship with the grievant, relying on authorities upholding the legitimacy of outsourcing and the requirement of particularity in constitutional claims. The court found the grievant was not subjected to any disciplinary process before termination and was never issued a contract or payslip; it held the termination by the 2nd Respondent was unfair and unjustified. It further found that the 1st Respondent, as the grievant's supervisor, reported him for an alleged illegal strike and thus contributed to the termination, making both respondents liable. The court awarded 10 months' salary compensation for unfair termination, one month's notice pay, unpaid June 2018 salary and unpaid leave, totalling Kshs 195,221 less statutory deductions, with costs to the Claimant plus interest. The declaratory and constitutional reliefs were not granted.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the grievant's termination from employment was unfair
  2. 2.Which party was responsible for the termination of the grievant's services
  3. 3.Whether the grievant's constitutional rights were violated
  4. 4.What remedies are available to the grievant, if any
  5. 5.Who is to bear the costs of the proceedings

Key legal issues

#
01

Whether the grievant's termination was substantively and procedurally fair

Holding

The termination was unfair and unjustified; the grievant was dismissed without any disciplinary process and the reasons (planning a strike, disobedience, gross misconduct) were never proved by the terminating employer.

Reasoning

The termination letter dated 25/6/2018 was authored by the 2nd respondent citing planned strike, disobedience and gross misconduct. The 2nd respondent neither filed a response nor adduced evidence. The grievant was never issued an employment contract or payslip, was not given a show cause letter, not subjected to a disciplinary hearing, and had no opportunity to be heard, violating the procedural safeguards of the Employment Act.

p. 10
02

Whether the 1st respondent (host employer under the outsourcing arrangement) bears liability for the termination

Holding

The 1st respondent contributed to the termination by reporting the grievant for an alleged illegal strike and cannot be wholly insulated from liability.

Reasoning

Although the grievant was employed and terminated by the 2nd respondent, the 1st respondent acted as the grievant's supervisor and was the entity that reported him as engaging in an illegal strike, prompting the 2nd respondent's disciplinary action. The court therefore held that the 1st respondent contributed to the termination, making both respondents liable for the award and costs.

p. 10

Legal principles established

#
  • A termination effected without any disciplinary process and without due process is unfair and unjustified notwithstanding that the grounds may be misconduct-related.
  • A host/client employer who reports an outsourced employee's alleged misconduct and thereby triggers the termination contributes to the termination and shares responsibility.

Court orders

#
  1. 1.Compensation for unfair termination equivalent to 10 months' salary (10 x 15,212) = Kshs 152,120/-
  2. 2.One month's salary in lieu of notice = Kshs 15,212/-
  3. 3.Unpaid salary for days worked up to 25th June 2018 (25/30 x 15,212) = Kshs 12,677/-
  4. 4.Leave not paid in the last year of service = Kshs 15,212/-
  5. 5.Total award of Kshs 195,221/- less statutory deductions, payable by the respondents
  6. 6.Respondents to pay costs of the suit plus interest at court rate with effect from the date of the judgment

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Constitution (Article 23 redress) and the Employment Act, Labour Relations Act and Labour Institutions Act

Relief refused

#

Declaratory orders that the termination was based on invalid reasons, procedurally flawed, null and void, and that the outsourcing arrangement violated the Private Employment Agencies Convention and the Labour Institutions (Private Employment Agencies) Regulations 2016 and Article 41

The court found unfair termination and awarded compensation but did not issue the constitutional declarations or void the outsourcing arrangement; no declaration was granted

p. 10

Declaration of discrimination on trade union grounds and compensation of Kshs 1,000,000 for violation of constitutional rights under Articles 27(5), 36 and 41

The court did not make any finding on constitutional violations and awarded only statutory Employment Act remedies

Costs

The respondents will pay costs of this suit plus interest at court rate with effect from the date of this judgment.

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

There is no indication that the grievant was subjected to any disciplinary process before the termination.
p. 10procedural fairness
In view of this admittance and in view of the fact that the grievant was terminated by the 2nd respondent and without due process, I find that the greviant was unfairly and unjustly dismissed by the 2nd respondent.
p. 10unfair termination
The 1st respondent however was the grieviant’s supervisor. They are the ones who reported the greviant indicating he was engaged in an illegal strike. It is therefore true that the 1st respondent contributed to the greviant’s termination.
p. 10liability of host employer in outsourcing arrangements
Compensation for unfair termination equivalent to 10 months salary given the non adherence to procedure =10x15,212=kshs 152,120/-.
p. 10remedy - section 49 compensation
The respondents will pay costs of this suit pus interest at court rate with efiect from the date of this judgment.
p. 10final orders - costs

Issues in the judgment

#
material

The 2nd Respondent filed no response and adduced no evidence yet was found liable; the judgment also does not name the parties in the title/caption, and the 2nd Respondent's name is never stated anywhere in the judgment.

minor

The claim averred constructive dismissal via a letter of termination dated 25th June 2018, while submissions by the Claimant referred to a letter dated 25th July 2018.

minor

The court did not render any determination on the framed constitutional issues (Articles 27(5), 36, 41) or on the outsourcing illegality question, leaving those heads unaddressed.

minor

Minor arithmetic/typographical discrepancies: unpaid June salary computed as 25/30x15,212=12,677 (claim sought 12,675) and the word 'greviant/greviant' repeatedly misspelled.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Bakery Confectionery Food Manufacturing & Allied Workers Union (K) v Sameer Agricultural Livestock (K) Limited & another (Cause E346 of 2021) [2025] KEELRC 1976 (KLR)", Case Analysis (2025). Memorandum of Claim dated 20th April 2021 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1976/eng@2025-07-03

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