Bakery Confectionary Food Manufacturing & Allied Workers Union (K) v Patco Industries Limited & another (Cause E638 of 2022) [2025] KEELRC 2943 (KLR)
The bottom line
#Kenya's Employment Court dismissed a union's claim over a casual worker's termination because the worker was never proven to be a union member and the outsourcing company, not Kenya Breweries, was his employer.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claimant union had standing to sue the 2nd respondent on behalf of the grievant who was not shown to be a union member
- 2.Whether the employment relationship was with the 1st or 2nd respondent under the outsourcing agreement
- 3.Whether the outsourcing arrangement violated the recognition and collective agreements and the grievant's constitutional rights
- 4.Whether the termination (lock-out after filing a WIBA claim) was unfair and unlawful
Key legal issues
#Standing of the union to sue the 2nd respondent
The union lacked standing because there was no evidence the grievant was a union member; the 2nd respondent was none-suited also for not being party to the conciliation
The reference to the Court flowed from conciliation between the claimant and the 1st respondent only; the 2nd respondent was not a party to those proceedings. Membership of a trade union entitles the union to represent the member regardless of any recognition agreement, but no evidence of the grievant's membership was adduced, so the claim against the 2nd respondent failed on standing.
Identity of the employer under the outsourcing arrangement
The employment contract was between the grievant and the 2nd respondent on a casual/daily basis; the 1st respondent was not the employer
Evidence showed the grievant had not previously worked for the 1st respondent, was employed by the 2nd respondent and deployed to the 1st respondent's premises. He worked only on days reported and was a daily/casual employee, so the claims, including that he was dismissed for filing a WIBA claim, were unsustainable against the 1st respondent.
Impact of outsourcing on recognition and collective agreements
The Court noted the concern but left the issue to policy/legislative intervention, declining to make a determination
The Court observed the claimant's dissatisfaction with outsourcing arrangements adverse to prevailing recognition and collective agreements but found a legislative intervention or a specific judicial determination in a proper case would be appropriate, and directed service of the judgment on the Cabinet Secretary for Labour and Social Protection.
Legal principles established
#- A recognition agreement is not a precondition for a union to represent a member in legal proceedings; union membership is what entitles representation
- Where an employee was never employed by a respondent, allegations of violation of rights against that respondent collapse
Court orders
#- 1.The claimant to serve this judgment upon the Cabinet Secretary for Labour and Social Protection within seven (7) days, for appropriate consideration of policy and legislative interventions about outsourcing and trade unionism and particularly the impact of outsourcing agreements on prevailing recognition and collective agreements
- 2.No orders on costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Reference to the Employment and Labour Relations Court after conciliation of a trade dispute (certificate of unresolved dispute issued 08.02.2021)
Relief refused
#Declarations that the outsourcing arrangement and termination were unlawful and unconstitutional and compensation of Kshs.1,665,634.60
The grievant was employed by the 2nd respondent, was not shown to be a union member, and the 1st respondent was not his employer; the claims were unsustainable against both respondents
Costs of the suit
The Court made no orders on costs despite dismissal of the suit
Costs
No orders on costs of the suit (each party to bear own costs implicitly).
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.
It is that membership to a union entitles the union to represent the member irrespective whether there exist a recognition agreement between the union and the employer.
In the instant case there is no evidence that the grievant was a member of the claimant trade union at all material times and the Court returns that the union lacked standing as urged for the 2nd respondent.
The claimant to serve this judgment upon the Cabinet Secretary for Labour and Social Protection, as may, within seven (7) days from today, for appropriate consideration of policy and legislative interventions about outsourcing and trade unionism and particularly the impact of outsourcing agreements on prevailing recognition and collective agreements.
No orders on costs of the suit.
Issues in the judgment
#The 2nd respondent is not named anywhere in the judgment text despite the claim being against two respondents; only its advocates, Namada & Company Advocates, are mentioned
No case number or neutral citation appears on the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bakery Confectionary Food Manufacturing & Allied Workers Union (K) v Patco Industries Limited & another (Cause E638 of 2022) [2025] KEELRC 2943 (KLR)", Case Analysis (2025). Memorandum of Claim dated 06.09.2022 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2943/eng@2025-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.