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ELRCPartially AllowedMemorandum of Claim dated 8th March, 2023· [2025] KEELRC 2895 (KLR)

Bakery Confectionery Food Manufacturing and Allied Workers Union (K) v Devkan Enterprises Limited (Cause E198 of 2023) [2025] KEELRC 2895 (KLR)

Employment and Labour Relations Court
24 October 2025
2,230 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled the dismissals unfair because the workers were never heard first, but rejected claims lacking specific evidence like overtime records.

What this practically means

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Executive summary

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The Kenya Union of Commercial Food and Allied Workers, under a recognition agreement and Collective Agreement with the Respondent, sued on behalf of four grievants (drivers/salesmen) alleging unfair termination. The grievants were accused of illegal work stoppage on 23rd September 2021 when they demanded unpaid August 2021 salaries and were directed to sign vouchers authorising Kshs.5,000/= deductions. By a letter dated 23rd October 2021 the Respondent terminated their services for an alleged unlawful strike, then issued backdated post-termination show cause letters requiring responses within 12 hours. The Claimant sought notice pay, unpaid salaries, leave, leave travelling allowance, off days, overtime, unremitted pension, and twelve months' compensation. The Respondent entered appearance and filed a Statement of Response but called no evidence at the hearing, which proceeded in its absence. The court held the grievants' uncontroverted evidence shifted nothing from the Claimant's burden of proof, but that the Respondent had neither adhered to the Section 41 procedure nor proved a valid reason under Section 45(2)(a), rendering the terminations substantively and procedurally unfair. The court allowed notice pay, unpaid salary, unpaid leave days and leave travelling allowance, and awarded six months' salary as compensation, entering judgment totalling Kshs.306,412/= (Kamau), Kshs.376,886.90 (Onserio), Kshs.331,175.80 (Chege) and Kshs.331,175.80 (Ng'ang'a). Overtime, off days, pension and unlawful deduction claims were declined for want of particulars and proof. Awards are subject to statutory deductions; the Union was awarded Kshs.120,000/= under Rule 70(4) of the ELRC (Procedure) Rules 2024, with interest at court rates from the date of judgment.

Key legal issues

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01

Whether termination of the grievants' employment was unfair

Holding

Termination was substantively and procedurally unfair; the Respondent did not adhere to Section 41 of the Employment Act and did not prove a valid reason under Section 45(2)(a)

Reasoning

The grievants were terminated on allegations of an unlawful strike and refusal to be surcharged, without being granted a hearing before termination; show cause letters were issued post-termination and backdated. The Respondent filed a Statement of Response but called no evidence, so nothing rebutted the Claimant's case that Section 41 procedure was breached and no valid reason was proved under Section 45(2)(a).

p. 5
02

Whether the grievants are entitled to the reliefs sought

Holding

Notice pay, unpaid salary, unpaid leave days and leave travelling allowance were allowed; compensation limited to six months' salary; overtime, off days, pension and unlawful deduction claims were declined for want of proof

Reasoning

Having found the termination unfair, the court awarded notice pay, unpaid salary, leave and leave travelling allowance as pleaded. Compensation was capped at six months' salary per grievant rather than the twelve months sought. Specific claims requiring particularised proof (overtime, off days, pension remittance, deduction) failed because no particulars or documentary evidence (such as pension statements) were exhibited.

p. 5
03

Effect of the Respondent's failure to adduce evidence

Holding

The Claimant's evidence stands uncontroverted and the Respondent's pleadings remain mere unsubstantiated statements, though the claimant must still prove its claim on a balance of probabilities

Reasoning

The Respondent and its advocate failed to attend the hearing after appearing earlier that day. The court proceeded in their absence, applied the principle from Janet Kaphiphe Ouma, Interchemie and Drappery Empire that undefended assertions remain mere allegations, while reaffirming that the claimant still discharges the statutory burden of proof.

p. 4

Legal principles established

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  • For a termination to be fair there must be both substantive justification and procedural fairness under Sections 41 and 45 of the Employment Act
  • Where a defendant/respondent does not adduce evidence, its pleadings remain mere unsubstantiated statements, but the claimant still bears the burden of proof on a balance of probabilities
  • Claims for overtime or unpaid off days must be pleaded with particulars of the dates worked and the applicable rates; blanket claims are not maintainable

Court orders

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  1. 1.Judgment entered for the Claimant/grievants against the Respondent as follows: Francis Mburu Kamau - Kshs.306,412/=; Richard Omoke Onserio - Kshs.376,886.90; James Njenga Chege - Kshs.331,175.80; Simon Ng'ang'a - Kshs.331,175.80, comprising notice pay, unpaid salary, unpaid leave days, leave travelling allowance and six months' salary as compensation for unfair termination
  2. 2.Awarded sums to be subject to statutory deductions as applied to the grievants at the time of termination pursuant to Section 49(2) of the Employment Act
  3. 3.The Claimant Trade Union awarded Kshs.120,000/= pursuant to Rule 70(4) of the Employment and Labour Relations Court (Procedure) Rules 2024 as reimbursement of money spent in the course of litigation
  4. 4.Grievants awarded interest on the sums awarded, to be calculated at Court rates from the date of the Judgment

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 45(2)(a)
  • Employment ActSection 49(2)
  • Evidence ActSections 107 and 108
  • Employment and Labour Relations Court (Procedure) Rules 2024Rule 70(4)

Cases cited (6)

  • Janet Kaphiphe Ouma & Another – vs – Marie Stopes International Kenya
    Kisumu HCCC No. 68 of 2007
  • Edward Muriga (Through Stanley Muriga) – vs – Nathaniel D. Schulter
    Civil Appeal No. 23 of 1997
  • Interchemie EA Limited – vs – Nakuru Veterinary Centre Limited
    Milimani HCCC No. 165B of 2000
  • Drappery Empire – vs – The Attorney General
    Nairobi HCCC No. 2666 of 1996
  • Chrispine Otieno Caleb – vs – Attorney General
    [2014] KEHC 8485 (KLR)
  • Walter Ogal Anuro – vs – Teachers Service Commission
    [2013] eKLR
Jurisdiction invoked
First-instance jurisdiction under the Employment and Labour Relations Court Act over the trade dispute and unfair termination claims; reliefs awarded under Sections 41, 45(2)(a) and 49(2) of the Employment Act and Rule 70(4) of the ELRC (Procedure) Rules 2024

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 Allied Workers Union (K) v Devkan Enterprises Limited (Cause E198 of 2023) [2025] KEELRC 2895 (KLR)", Case Analysis (2025). Memorandum of Claim dated 8th March, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2895/eng@2025-10-24

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