Kingi v Mini Bakeries (Mombasa) Limited (Employment and Labour Relations Appeal E166 of 2024) [2025] KEELRC 2897 (KLR)
The bottom line
#A Kenyan court upheld an employee's summary dismissal for insubordination but awarded him an admitted KShs 9,600 long service award with interest.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant discharged his burden under section 47(5) of the Employment Act to prima facie establish procedural unfairness
He did not; his witness statement and pleadings were too sketchy and generalised on procedural and substantive fairness
The court held that section 47(5) places the initial burden on the employee to prima facie demonstrate unfairness before it shifts to the employer. The Appellant's witness statement (turned evidence in chief) and pleadings were so sketchy and too general on the vital aspects of procedural and substantive fairness that it was unreasonable to conclude he established procedural unfairness, so his case rightly failed at that stage notwithstanding the trial magistrate's lack of elaboration.
Whether the summary dismissal was procedurally fair under sections 41 and 45(2) of the Employment Act
Yes; the Appellant received show cause letters, responded, was invited to a disciplinary hearing with a right of accompaniment, and was heard
The Respondent scheduled a meeting over the failed production target, issued two show cause letters dated 25th April 2022, received the Appellant's response, and invited him to a hearing on 28th April 2022 with charges stated and a right of accompaniment. The hearing took place and the Appellant was allowed to explain himself. The court was convinced the trial magistrate did not err in finding procedural fairness.
Whether the dismissal was substantively fair, i.e. whether the infractions warranted summary dismissal under section 44
Yes; refusal to sign the complaint form and refusal to attend the meeting, motivated by solidarity and without remorse, justified summary dismissal
Applying the contextual approach from McKinley v BC Tel and Laws v London Chronicle, the court weighed the gravity of the two acts of insubordination, the Appellant's admission at the hearing that they were motivated by solidarity with other Mixers, and his lack of remorse, concluding the conduct showed disregard of the essential conditions of the contract and justified summary dismissal under the Employment Act and the CBA.
Whether the Appellant was entitled to the long service award of KShs. 9,600 under clause 40 of the CBA
Yes; the entitlement was expressly admitted by the Respondent and the trial magistrate erred in failing to award it
The long service award was an independent relief, pleaded under clause 40 of the CBA for five years of service, and expressly admitted in the Respondent's pleadings. The court held the trial magistrate erred in law by not awarding this admitted relief, and awarded it with interest from the date of dismissal.
Whether the trial magistrate erred in founding the dismissal on sub-par performance
The trial magistrate's reference to sub-par performance was an erroneous digression, but it did not alter the true basis of dismissal, which was the two infractions in the show cause letters
The court found the Appellant's counsel's submissions that the dismissal rested on unproved poor performance to be misleading; the show cause letters and hearing invitation clearly charged insubordination. However, it acknowledged the trial magistrate inexplicably raised sub-par performance in a line of his judgment, a digression that did not change the true reasons for dismissal.
Legal principles established
#- Section 47(5) of the Employment Act imposes a sequential two-stage burden: the employee must first prima facie establish that the termination was not procedurally and substantively fair, whereupon the burden shifts to the employer to justify it
- Section 41 of the Employment Act prescribes a mandatory pre-termination procedure comprising notification, hearing and consideration, and absence of any ingredient renders the termination procedurally unfair
- Misconduct does not inherently justify summary dismissal; the contextual approach requires an assessment of the gravity of the conduct and whether the employment relationship can no longer viably subsist
Court orders
#- 1.Appeal allowed to a minimal extent; the trial Magistrate's judgment limitedly disturbed
- 2.Appellant awarded Kenya Shillings Nine Thousand Six Hundred (KShs. 9,600) as long service award
- 3.The award shall attract interest at court rates from 6th May 2022 (date of dismissal) until full payment
- 4.Each party to bear its own costs
- On appeal from
- Magistrates' Court (trial court)
- Lower court claim (number not stated)
- Jurisdiction invoked
- First appellate jurisdiction over a claim decided by the learned trial Magistrate under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kingi v Mini Bakeries (Mombasa) Limited (Employment and Labour Relations Appeal E166 of 2024) [2025] KEELRC 2897 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2897/eng@2025-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.