https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1573

Bakery, Confectionery, Food Manufacturing and Allied Workers Union v ROK Industries Ltd (Cause E139 of 2025) [2026] KEELRC 1573 (KLR) (25 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1573 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E139 of 2025 ON Makau, J May 25, 2026 Between Bakery, Confectionery, Food Manufacturing and Allied Workers Union Claimant and ROK Industries Limited Respondent Judgment Introduction 1.The Claimant is a registered trade union and it brings this suit on behalf of its seventeen members (hereinafter called “the grievants”), who were employed by the respondent until December 2024. By a Memorandum of Claim dated 19th February 2025 the Claimant Union sued the respondent for unfair termination of the grievants on account of redundancy. The Claimant prayed for the following:-a.A declaration that the Respondent unfairly, unlawfully and illegally terminated the grievants on account of redundancy.b.That this Honourable Court do issue a reinstatement order of the grievants with no loss of benefits or seniority.c.Alternatively, that the Respondent do re-engage the grievants to work comparable to that in which they were employed prior to their termination.d.In the alternative, maximum compensation and notice pay for each grievant as per Section 49 of the Employment Act, tabulated as follows:-i.Benson Omungweso Andanyi (employed 1st June 2022 to 31st December 2024, salary Kshs. 21,005 per month) – Notice Pay Kshs. 21,005 plus Compensation Kshs. 252,060 = Kshs. 273,065.ii.Kevin Mapala Oyugi (employed 1st December 2020 to 31st December 2024, salary Kshs. 24,465 per month) – Notice Pay Kshs. 24,465 plus Compensation Kshs. 293,580 = Kshs. 318,045.iii.Daniel Muendo Moses (employed 27th December 2017 to 31st December 2024, salary Kshs. 32,550 per month) – Notice Pay Kshs. 32,550 plus Compensation Kshs. 390,600 = Kshs. 423,150.iv.Wilfred Muoki Maingi (employed 27th December 2017 to 31st December 2024, salary Kshs. 27,090 per month) – Notice Pay Kshs. 27,090 plus Compensation Kshs. 325,080 = Kshs. 352,170.v.James Kimathi (employed 1st September 2019 to 31st December 2024, salary Kshs. 24,150 per month) – Notice Pay Kshs. 24,150 plus Compensation Kshs. 289,800 = Kshs. 313,950.vi.Elijah Fred Delewa (employed 1st December 2022 to 31st December 2024, salary Kshs. 21,800 per month) – Notice Pay Kshs. 21,800 plus Compensation Kshs. 261,600 = Kshs. 283,400.vii.Michael Macharia Mwangi (employed 1st December 2017 to 31st December 2024, salary Kshs. 24,200 per month) – Notice Pay Kshs. 24,200 plus Compensation Kshs. 290,400 = Kshs. 314,600.viii.Victor Marlen (employed 1st January 2022 to 31st December 2024, salary Kshs. 21,800 per month) – Notice Pay Kshs. 21,800 plus Compensation Kshs. 261,600 = Kshs. 283,400.ix.Samuel Mungonye Sitati (employed 1st January 2023 to 31st December 2024, salary Kshs. 20,800 per month) – Notice Pay Kshs. 20,800 plus Compensation Kshs. 249,600 = Kshs. 270,400.x.William Simiyu (employed 1st January 2023 to 31st December 2024, salary Kshs. 20,800 per month) – Notice Pay Kshs. 20,800 plus Compensation Kshs. 249,600 = Kshs. 270,400.xi.Joseph Kitutu Kyalo (employed 1st January 2023 to 31st December 2024, salary Kshs. 21,005 per month) – Notice Pay Kshs. 21,005 plus Compensation Kshs.252,060 = Kshs. 273,065.xii.Peter Musili Mwandi (employed 1st January 2023 to 31st December 2024, salary Kshs. 23,100 per month) – Notice Pay Kshs. 23,100 plus Compensation Kshs. 277,200 = Kshs. 300,300.xiii.Shadrack Pius Kyalo (employed 1st August 2022 to 31st December 2024, salary Kshs. 21,800 per month) – Notice Pay Kshs. 21,800 plus Compensation Kshs. 261,600 = Kshs. 283,400.xiv.Alex Makau (employed 1st January 2023 to 31st December 2024, salary Kshs. 20,800 per month) – Notice Pay Kshs. 20,800 plus Compensation Kshs. 249,600 = Kshs. 270,400.xv.Martin Muinde (employed 1st January 2023 to 31st December 2024, salary Kshs. 20,800 per month) – Notice Pay Kshs. 20,800 plus Compensation Kshs. 249,600 = Kshs. 270,400.xvi.Joshua Mbithi (employed 1st January 2022 to 31st December 2024, salary Kshs. 19,000 per month) – Notice Pay Kshs. 19,000 plus Compensation Kshs. 228,000 = Kshs. 247,000.xvii.Alex Kimenye (employed 1st September 2019 to 31st December 2024, salary Kshs. 23,500 per month) – Notice Pay Kshs. 23,500 plus Compensation Kshs. 282,000 = Kshs. 305,500.e.Interest on the compensation until payment in full.f.Costs of the suit on the higher scale.g.Any other or further relief deemed fair and fit to grant. 2.The Respondent filed a Reply to the Memorandum of Claim dated 5th June 2025 denying the alleged unfair termination, and averred that the redundancy was unlawful as it complied with relevant statutory provisions. Therefore, it prayed for dismissal of the suit with costs. Evidence 3The Claimant called two witnesses. CW1, Daniel Muendo Moses (the 6th grievant), who he adopted his witness statement dated 19th February 2025 as his evidence in chief and produced a list of 5 documents which were marked as Exhibits 1-5 respectively. He prayed that the claims be granted. 4.In brief his testimony was that all the grievants were employed by the respondent on diverse dates and they were domiciled in the Sweets Production Department. They served diligently until they were given 11 days’ notice of termination on account of redundancy. He averred that the respondent did not comply with the mandatory procedure provided under section 40 (1)(a) of the Employment Act. 5.He stated that there was no proper redundancy notification and no genuine consultations were held between the employer, the Labour officer and the claimant union. He further stated that the respondent did not produce any evidence of economic nature or lack of skills/competencies to justify the redundancy. He further averred that the respondent did not follow selection criteria prescribed under section 40 of the Act including seniority which is basically the principle of last in first out. 6.He further stated that the redundancy was unjustified and unfair as it was meant to get rid of the grievants due to their membership to the claimant union, and stifle their constitutional right to join a trade union under Article 41 of the Constitution. He contended that the respondent was against the decision by the grievants to join the the claimant union and refused to recognize their union. 7.As result, the claimant to lodge a trade dispute at the Ministry of and conciliation was done culminating to a decision on 25th November 2024 that the respondent should commence deduction of union dues from the grievants and sign recognition agreement. 8.In cross-examination, CW1 stated that he had filed an Authority to Swear and Plead dated 19th February 2025 (further list dated 9th June 2025). He admitted that he had not filed any evidence of his union membership. He admitted that he attended a meeting held on 28th November 2024 and he spoke as indicated in the minutes filed by the respondent. He stated that they were not notified of the purpose of the meeting and were only asked to ask questions. 9.He further testified that on 19th December 2024 he received a redundancy notice dated 30th November 2024. He maintained that some people were served on 19th December 2024, but admitted that he was paid terminal dues as per copies in page 44. He further admitted that he was given a certificate of service. 10.In re-examination, he contended that, during the meeting on 28th November 2024, they were told that the company was not doing well and production was low. He reiterated that he received a redundancy notice dated 30th November 2024, on 19th December 2024 and he acknowledged by signing and indicating the date of receipt. He contended that he pressurized received his terminal dues and was not allowed to read. He also accepted the payment due to the need for cash to go for Christmas. 11.CW2, is the Claimant’s 1st Assistant General Secretary, Jackson Kisokon Ole Njoroge. He also adopted his witness statement dated 19th February 2025 as his evidence in chief. In brief, his testimony was that the Union filed this suit because its members were mistreated by the Respondent and laid off. 12.He stated that they recruited the grievants as members and they were further issued with membership cards. They also signed check-off forms for deduction of union dues but the Respondent refused to implement the check-offs after they were forwarded to the company. 13.As a result, the Union reported a trade dispute to the Labour Minister and conciliation was done culminating to a decision on 25th November 2024 that the respondent should commence deduction of union dues from the grievants and sign recognition agreement. Again, the respondent declined and the union filed Cause No. E212 of 2025 seeking recognition. 14.He testified that the procedure of redundancy was unfair because there was no proper notice served and consultations. However, he admitted that a Redundancy Notice dated 30th November 2024 was received by the Labour Officer, Industrial Area, on 2nd December 2024. 15.In re-examination, CW2 testified that for one to qualify for membership of the claimant union, he must be working in the food and confectionery sector. He further testified that once a member is registered, recognition is sought from the employer. He clarified that the union cannot seek recognition before recruiting members. 16.He maintained that the respondent laid off the grievants after they joined the union and which in turn sought recognition was sought. He contended that the suit E212 of 2025 was evidence that the grievants were already members of the Union. 17.The Respondent called one witness. RW1, Miriam Mwaro, the Human Resource Manager for the Respondent, testified on 3rd February 2026. She adopted her witness statement dated 5th June 2025 as her evidence in chief and produced 5 documents in the list dated 5th June 2025 as exhibits. 18.RW1 testified that around August 2024 the company realized it was undergoing economic downturn and in September 2024 the sweets department staff were briefed about the loss of the sweet market in Uganda and other East African countries. In October 2024 there was another meeting. On 28th November 2024 there was yet another meeting with staff present and the rest were briefed when they came to work. On 30th November 2024, the Respondent issued each employee with a one-month redundancy notice and the Labour Officer was served on 2nd December 2024. 19.She testified that the employees were paid all their dues and given certificates of service. She stated that as at the time of redundancy, there was no recognition agreement with the Union, and the Respondent had not received instruction from the staff to deduct union dues. She stated that the Respondent wrote back to the Union requesting for particulars because some employees had left the company and some names were mixed up. 20.On cross-examination, RW1 testified that the Respondent held three consultative meetings at the Labour Office, and that page 27 of the respondent’s bundle is a letter showing there were conciliation meetings. She stated that a total of 20 of 145 employees in the Sweets Department were laid off. She testified that she personally served the Redundancy Notices to all the employees on 30th November 2024, and she gave them a chance to ask questions. 21.After the close of the hearing, both parties filed written submissions. The Claimant filed submissions dated 16th February 2026. The Respondent filed submissions dated 26th February 2026. Issues for determination and analysis 22.Having considered the pleadings, evidence, and submissions, I am satisfied that the claimant recruited the grievants into the union membership and served the respondent with the Check-off forms (Form ‘s’) for deduction of union dues from the grievants. It is also clear that the respondent did not comply with the said Check-off Forms and further declined to accord recognition to the union. The issues in controversy are:-a.Whether the Claimant Union lacks locus standi to bring this suit.b.Whether the termination of the grievants’ employment on account of redundancy was unlawful and unfair.c.Whether the Claimant is entitled to the reliefs sought.d.Who should bear costs of the suit? Analysis Locus standi 23.The Respondent contended that the Claimant Union lacked locus standi to represent the grievants because no recognition agreement existed between the parties as at 30th November 2024 and that the issue of recognition is pending before this Court in ELRC Cause No. E212 of 2025. The Claimant relied on Article 41(2)(c) of the Constitution of Kenya, 2010 which provides that every worker has the right to form, join or participate in the activities and programs of a trade union. 24.It is now well settled that the mandate of a trade union to represent its members is not dependent on a recognition agreement signed between it and the employer. It flows naturally from the membership of an employees to the trade union. I gather support from the Court of Appeal decision in Modern Soap company limited v Kenya show and leather workers [2020] KECA 4 (KLR) union where Judges affirmed the above position, thus: -“In our judgment, we can see no reason why a registered union, whose constitution so empowers, should not have standing to institute a claim on behalf of its members and represent its members in court.” 25.Having sought guidance from the law and judicial precedents, I find no merits in the allegation by the respondent that the claimant lacks locus standi to bring the instant. It is very clear that recognition agreement is a bilateral agreement between the employer and the trade union, and the lack of it does not strip off, the union its mandate to represent its members in every other thing except in negotiating Collective Bargaining Agreements as contemplated under section 54 of the Labour Relations Act. Unfair and unlawful redundancy 26.Section 40 of the Employment Act, 2007 provides that:-“(1)An employer shall not terminate a contract of service on account of redundancy unless the employer complies with the following conditions— .(a)where the employee is a member of a trade union, the employer notifies the union to which the employee is a member and the labour officer in charge of the area where the employee is employed of the reasons for, and the extent of, the intended redundancy not less than a month prior to the date of the intended date of termination on account of redundancy;(b)where an employee is not a member of a trade union, the employer notifies the employee personally in writing and the labour officer;(c)the employer has, in the selection of employees to be declared redundant had due regard to seniority in time and to the skill, ability and reliability of each employee of the particular class of employees affected by the redundancy;(d)where there is in existence a collective agreement between an employer and a trade union setting out terminal benefits payable upon redundancy; the employer has not placed the employee at a disadvantage for being or not being a member of the trade union;(e)the employer has where leave is due to an employee who is declared redundant, paid off the leave in cash;(f)the employer has paid an employee declared redundant not less than one month’s notice or one month’s wages in lieu of notice; and(g)the employer has paid to an employee declared redundant severance pay at the rate of not less than fifteen days’ pay for each completed year of service.” 27.The above provision is clear that, for termination on account of redundancy to pass muster, it must be justified and the employer must comply with procedure set out by the legislature. The beginning point is that the employer must have reason for the termination and then communicate the same to the to the trade union (where the employee is a member) and the labour officer not less than one month prior to the intended date of termination. 28.The Respondent did not comply with the above procedure under subsection (1)(a) above because it had not yet accorded the Claimant recognition. In paragraph 5 and 9 of the witness statement by the RW1, she contended that the Claimant had no authority to recruit the grievants into membership and the company’s position was that its employees are not unionized since no formal recognition agreement had been reached. She maintained that the issue of recognition was pending determination in Cause No. E212 of 2025. 29.The Claimant cited the case of Aviation & Allied Workers Union Kenya v. Laico Regency Hotel [2016] eKLR where the Court stated:“An employer cannot escape statutory obligations by refusing to recognise a union where employees have already exercised their constitutional right to join a trade union.” 30.The Claimant further cited the Court of Appeal case of Kenya Airways Ltd v. Aviation & Allied Workers Union Kenya & 3 Others [2014] eKLR where the Court held:-“The obligation to notify and consult under Section 40 of the Employment Act is mandatory and is not dependent on whether or not there exists a recognition agreement between the employer and the union…The law recognizes trade unions as representatives of employees by virtue of membership, and not by recognition agreements alone.” 31.The failure to serve the union with the redundancy notification, when fully aware that the grievants were members of a trade union, violated the said mandatory procedure and defeated the very purposes of the said notification, which consultations. The respondent further did not serve one month notice on the labour officer as the same was served on 2nd December 2024. The officer was also never involved in any consultations between the parties to see whether redundancy could be avoided or its effects mitigated. 32.Even the notification to the grievants was to be relied upon, the court notes that the same were received by the grievants on or after 19th December 2024 which was shorter notice than the one month notice provided by the statute. I have also noted that the alleged consultations between the respondent and the grievants on 28th November 2024 was not meaningful as they were only informed of a decision already made. 33.In Kenya Airways Ltd v. Aviation & Allied Workers Union Kenya & 3 Others [2014] eKLR the Court of Appeal held:-“Consultation must be real, meaningful and not cosmetic. It must precede the decision to declare redundancy and not be a mere afterthought…A meeting held after the decision has already been made does not amount to consultation as contemplated under Section 40 of the Employment Act.” 34.Again, in Fursys Kenya Ltd v. Oyare [2023] KEELRC 2846 the Court stated that:-“There is no doubt in my mind that Section 40(1)(a) ... requires that the notices must be issued at least 30 days prior to the date appointed for the termination... Section 40(1)(b) ... the notice must be issued in writing to the employee and the Labour Officer. The notice must be of not less than thirty days.” 35.I have considered the minutes of the consultative meeting was convened on 28th November 2024 at pages 14-15 of the Respondent's bundle. It is clear that the Director explained the downturn in the Kenyan sweets market, the non-operational status of machinery, and that declared that twenty (20) employees in the Sweets Department will be affected by redundancy. He then told the grievants that redundancy notices would be issued on 30th November 2024. That engagement in my view did not constitute genuine consultations as contemplated by the statute. 36.Besides the foregoing violation, the claimant averred that the selection of the grievants for redundancy was not done fairly as the last in first out principle was not followed. They maintained that they were selected on ground of their union membership. The respondent did not adduce any evidence to demonstrate how the selection of the grievants was done from the 145 employees. 37.The court further notes that the Conciliator’s decision was made on 25th November 2024 and the respondent convened a consultative meeting with the grievants on 28th November 2024 and wrote redundancy notices on 30th November 2024. In the circumstances, I find that the claimant has proved on a balance of probability that the grivants were selected for the redundancy because of their union membership. 38.In view of the foregoing, I find and hold that the redundancy declaration was procedurally unfair for failure to comply with mandatory notification of the employees’ union under Section 40(1)(a) of the Employment Act. 39.As regards the justification of the termination, the respondent cited economic reasons including reduced market for sweets in the region due to high competition, and introduction of new taxes in the redundancy notice. However, the claimant maintained that the redundancy was due to the grievants’ membership to the union, as the declaration of redundancy was done shortly after the recruitment by the union and demand for recognition. 40.The court appreciates that an employer has the prerogative to make commercial decision that serve the interest of his business. However, decision to declare redundancies is subject to the law as provided under section 40 of the Employment Act. In this case the respondent did not justify the redundancy by adducing evidence to prove that it had drastically lost market share of its sweet products in the region alleged. It also did substantiate the alleged new taxes that had negatively impacted on its sweet production as alleged. 41.On the other hand, the claimant has adduced evidence to prove that the respondent was not pleased with the recruitment of the grievants as union members. It refused to comply with the Check-off forms signed by the grievants and to recognize the claimant even after a recommendation by the Conciliator appointed by the Labour Minister. I have already noted above that as soon as the Conciliator communicated his decision the respondent called the grievants to a meeting and informed that they would be redundancies in their department. 42.I agree with the claimant that the timing of the decision to terminate the grievant’s employment on account of redundancy soon after becoming members of the union, and the failure to adduce any evidence to prove that there existed a redundancy situation, leaves me with one conclusion that the redundancy was not for a just cause. 43.Consequently, I find and hold that the termination of the grievants’ employment was unfair within the meaning of Section 45(2) of the Employment Act, as it was devoid of a valid reason and not done in accordance with a fair procedure. Reliefs 44.The primary prayer by the Claimant was reinstatement or re-engagement of the grievants. However, the employment relationship has broken down and the claimant did not prove that reinstatement or re-engagement would be practicable, I decline to grant that relief. Instead, I grant the alternative prayer of compensation under Section 49 of the Employment Act. 45.Each grievant prayed for twelve (12) months gross salary as compensation for unfair termination plus one month notice pay. I award each one month salary in lieu of notice since I have already made a finding of fact the respondent did not serve a proper notice before the purported redundancy. 46.As regards compensation for the unfair termination, I have taken into account the length of service of each grievant being approximately 2 to 7 years, and also the fact that the grievants did not contributed to the termination through misconduct. Those who served below four years will get three months’ gross salary and those who served above four years will get six months’ gross salary as compensation. The said award is in addition to the sums paid by the respondent after the separation. 47.The computation for each grievant is as follows:-1st grievant (Benson Omungweso Andanyi)He served two yearsNotice (one month) Kshs. 21,005Compensation (3 months) Kshs. 63,0152nd grievant (Kevin Mapala Oyugi)He served four yearsNotice (one month) Kshs. 24,465Compensation (6 months) Kshs. 146,7903rd grievant (Daniel Muendo Moses)He served seven yearsNotice (one month) Kshs. 32,550Compensation (6 months) Kshs. 195,3004th grievant (Wilfred Muoki Maingi)He served seven yearsNotice (one month) Kshs. 27,090Compensation (6months) Kshs. 162,5405th grievant (James Kimathi)He served below five yearsNotice (one month) Kshs. 24,150Compensation (6months) Kshs.144,9006th grievant (Elijah Fred Delewa)He served two yearsNotice (one month) Kshs. 21,800Compensation (3 months) Kshs. 65,4007th grievant (Michael Macharia Mwangi)He served seven yearsNotice (one month) Kshs. 24,200Compensation (6 months) Kshs. 145,2008th grievant (Victor Marlen)He served three yearsNotice (one month) Kshs. 21,800Compensation (3 months) Kshs. 65,4009th grievant (Samuel Mung’onye Sitati)He served two yearsNotice (one month) Kshs. 20,800Compensation (3 months) Kshs. 62,40010th grievant (William Simiyu)He served two yearsNotice (one month) Kshs. 20,800Compensation (3 months) Kshs. 62,40011th grievant Joseph Kitutu KyaloHe served two yearsNotice (one month) Kshs. 21,005Compensation (3 months) Kshs. 6301512th grievant (Peter Musili Mwandi)He served three yearsNotice (one month) Kshs. 23,100Compensation (3 months) Kshs. 69,30013th grievant (Shadrack Pius Kyalo)He served two yearsNotice (one month) Kshs. 21,800Compensation (3 months) Kshs. 65,40014th grievant (Alex Makau)He served three yearsNotice (one month) Kshs. 20,800Compensation (3 months) Kshs. 62,40015th grievant (Martin Muinde)He served three yearsNotice (one month) Kshs. 20,800Compensation (3 months) Kshs. 62,40016th grievant (Joshua Mbithi)He served three yearsNotice (one month) Kshs. 19,000Compensation (3 months) Kshs. 57,00017th grievant (Alex Kimenye)He served five yearsNotice (one month) Kshs. 23,100Compensation (6 months) Kshs. 138,600Grand Total for all seventeen (17) grievants = Kshs. 2,019,725 Conclusion 48.I have found that the termination of the grievants’ employment on account of redundancy was unjustified, unfair and unlawful for failure to comply with Section 40(1)(a) of the Employment Act. I have further found that the claimant is entitled to salary in lieu of notice and compensation for the unfair termination. Consequently, I enter judgment for the Claimant Union against the Respondent as follows:-a.A declaration that the termination of the grievants’ employment on account of redundancy was unfair and unlawful.b.The sum of Kshs.2,019,725 being the aggregate award of salary in lieu of notice and compensation for unfair termination to the 17 grievants.c.The award is subject to statutory deductions.d.The Claimant is awarded costs of the suit plus interest at court rates from the date of this judgment till payment in full. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 25TH DAY OF MAY, 2026.ONESMUS MAKAUJUDGEAppearance:No appearance for ClaimantChadianya for Respondent