Mini Bakeries (MSA) Limited v Ali Omar Faraj [2019] KECA 479 (KLR)
The bottom line
#A Kenyan employer can have valid reasons to fire an employee, but still lose in court if it skips the mandatory fair disciplinary process.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant had valid grounds to summarily dismiss the respondent
Yes. The re-evaluated evidence showed the respondent produced underweight loaves, was surcharged for 185 missing loaves, and manipulated loading book records and juniors to conceal a further shortfall of 300 loaves, giving rise to loss of trust and reasonable grounds that he acted to the employer's detriment.
The Court found the respondent's misconduct unchallenged: underweight production, a surcharged shortfall of 185 loaves, and a further 300-love shortfall concealed with a junior employee's help, corroborated by the loading book. The trial Judge's theory that staff may have eaten the bread did not make legal sense given the numbers. Conduct of this nature warrants summary dismissal on grounds of gross misconduct and breakdown of trust.
Whether the disciplinary procedure was fair
No. The meeting of 18 December 2013 was an inquiry rather than a disciplinary hearing; the respondent was not served with written charges or a notice to show cause, and no charges were read to him, breaching Section 41 of the Employment Act.
Despite valid grounds existing, the appellant failed to adhere to fair procedure under Section 41. The respondent was not given a notice to show cause or written charges, and the minutes showed an investigative meeting, not a disciplinary hearing. The audi alteram partem rule requires notice and a hearing; a later-valid dismissal on those grounds could not cure the procedural breach, so compensation for unfair termination was proper.
Whether the award of interest at 14% per annum should stand
No. Interest is discretionary, but where a rate higher than the court rate is awarded without a prayer for it, reasons must be given; none were, so the rate was substituted with 12%.
The Court held that awarding a higher interest rate not prayed for in the statement of claim requires reasons to be given. The trial Judge gave no reasons for the 14% rate. Accordingly the appellate court interfered and substituted the statutory court rate of 12% per annum.
Legal principles established
#- A first appellate court must re-evaluate, re-assess and reanalyse the evidence on the record and determine whether the conclusions of the trial court stand, while making due allowance for not having seen or heard the witnesses
- Fair notice of disciplinary charges must contain substantial information with sufficient detail to enable the employee ascertain the nature of the allegations, and must allow sufficient time to respond and seek counsel
- An employer may carry out independent investigative stock-taking during an employee's suspension without the employee's presence; suspension does not preclude further investigation
- A discharge voucher does not of itself bar an employee from pursuing claims of unfair termination founded on fundamental rights
Court orders
#- 1.The award of damages, which included an aspect of illegal termination, is set aside and substituted with an award for unfair termination for failure by the appellant to follow due process
- 2.The respondent is awarded three months' salary for unfair termination being Kshs. 210,000, having been paid one month's salary in lieu of notice
- 3.The award of interest at 14% per annum is set aside and substituted with 12%, the court rate
- 4.Each party shall bear their own costs in this appeal and the appellant shall bear the costs in the ELRC
- On appeal from
- Employment and Labour Relations Court at Mombasa
- Mombasa ELRC No. 494 of 2014
- Jurisdiction invoked
- First appeal to the Court of Appeal from the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Agricultural Finance Corporation v Jillo (Civil Appeal E002 of 2023) [2025] KECA 2068 (KLR)[2025] KECA 2068 (KLR)5 Dec 2025followed
Cite this brief
#Cite this brief
Caselaw, "Mini Bakeries (MSA) Limited v Ali Omar Faraj [2019] KECA 479 (KLR)", Case Analysis (2019). Civil Appeal No. 47 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/479/eng@2019-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.