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ELRCDismissedCause No. E159 of 2025

Kenya Union of Commercial Food and Allied Workers v Equator Bottlers Limited

Employment & Labour Relations Court of Kenya
30 September 2026
1,456 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld an employee's dismissal because refusing both a breathalyser and a blood test counted as insubordination.

What this practically means

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Executive summary

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The Claimant union sued on behalf of Grievant Jackson Ouma Omindo, employed by the Respondent from 12th May 2010, challenging his summary dismissal on 13th August 2024. The Respondent alleged that on 26th March 2024 the Grievant refused lawful instructions from his supervisor, arousing suspicion of intoxication, and then refused both a breathalyser test and an alternative blood test at a clinic. The Grievant's explanation was that the breathalyser straw was unhygienic and he offered to test at a public health facility. Following a show-cause letter, a disciplinary hearing on 24th June 2024 and a dismissed appeal, he was summarily dismissed. The Claimant sought notice pay, 13 days' salary, accrued leave pay, 12 months' compensation, a certificate of service and costs, contending the allegations were unsubstantiated and the termination contrary to sections 45(1), 45(4) and 45(5) of the Employment Act. The Respondent maintained the conduct constituted gross misconduct under section 44(4)(b) and (e), that section 41 procedure was followed, and that the conciliator's recommendations did not bind the Court. The Court held that refusal to undertake any reasonable test was insubordination; the Grievant, having hygiene objections to the breathalyser, should have accepted the alternative blood test. Procedural fairness under section 41 was satisfied, and the termination was fair and justified under sections 43 and 45. The suit was dismissed with costs to the Respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Grievant's refusal to undergo a breathalyser test and a blood test amounted to insubordination justifying summary dismissal
  2. 2.Whether the Respondent substantiated the allegations of intoxication and insubordination
  3. 3.Whether the procedure under section 41 of the Employment Act was followed
  4. 4.Whether the termination was fair and justified under sections 43 and 45 of the Employment Act
  5. 5.Whether the Grievant is entitled to the reliefs sought

Key legal issues

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01

Whether refusal to submit to alcohol testing amounted to insubordination

Holding

Yes - the refusal to take both the breathalyser and the alternative blood test was insubordination and grounds for disciplinary action

Reasoning

The Grievant declined the breathalyser citing an unhygienic straw and also declined a blood test at a clinic. The Court held that a reasonable employee with hygiene concerns would accept the alternative test. Declining both reasonable directives constituted insubordination, making the Grievant the author of his own misfortune.

p. 8
02

Whether procedural fairness under section 41 was satisfied

Holding

Yes - show cause, disciplinary hearing and appeal satisfied section 41

Reasoning

The Grievant was issued a show-cause letter, responded to the allegations, attended a disciplinary hearing, and exercised a right of appeal which was heard and dismissed. The Court found these steps met the fair hearing requirements of section 41 of the Employment Act.

p. 9
03

Whether the termination was substantively fair under sections 43 and 45

Holding

Yes - the termination was fair and justified

Reasoning

Having found the refusal to obey lawful directives to be insubordination, and given the procedural compliance, the Court held the employer satisfied the substantive justification requirements, leaving dismissal of the claim as the only recourse.

p. 9

Legal principles established

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  • An employee's refusal to undergo a reasonable alcohol or blood test directed by the employer constitutes insubordination warranting disciplinary action
  • Where an employee objects to one testing method on hygiene grounds, he is expected to accept a reasonable alternative test

Court orders

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  1. 1.The suit is dismissed with costs to the Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over unfair termination dispute

Relief refused

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Notice pay of Kshs. 46,351/-

Summary dismissal for gross misconduct disentitles the employee to notice pay

p. 7

Compensation of 12 months' salary (Kshs. 556,212/-), 13 days' pay and accrued leave pay

Termination was fair and justified; the dismissal was lawful

p. 9

Certificate of service

Not addressed in the disposition as the suit was dismissed

Costs

The suit is dismissed with costs to the Respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

An employee who declines to take reasonable directions of the employer insubordinates the employer.
p. 8insubordination
If the breathalyser straw was dirty, it would be expected that the employee would accept to undertake the next alternative test.
p. 8reasonable alternative testing
the employer satisfied the requirements of fair hearing under section 41 and the termination is deemed to be fair and justified in terms of sections 43 and 45 of the Employment Act.
p. 9substantive and procedural fairness
The suit being devoid of merit is accordingly dismissed with costs to the Respondent.
p. 9final orders

Issues in the judgment

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minor

Certificate of unresolved dispute dated 12th April 2024 predates the dismissal of 13th August 2024

minor

Reply to Statement of Claim dated 8th March 2026 but documents dated 14th July 2026 produced at hearing

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, "Kenya Union of Commercial Food and Allied Workers v Equator Bottlers Limited", Case Analysis (2026). Cause No. E159 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2713/eng@2026-09-30

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