Birya v Mini Bakeries (Mombasa) Limited (Appeal E167 of 2024) [2025] KEELRC 2939 (KLR)
The bottom line
#A Kenyan court confirmed an employer's right to summarily dismiss a mixer for insubordination, but awarded an admitted KShs 9,600 long service award with interest.
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 Appellant was unfairly dismissed (substantively and procedurally)
- 2.Whether the Appellant is entitled to the reliefs sought
Key legal issues
#Whether the Appellant discharged his initial burden under section 47(5) to prima facie establish unfair dismissal
He did not; his witness statement and pleadings were too sketchy and generalised to establish even prima facie procedural unfairness
The court compared the material the Respondent presented showing compliance with section 41 (show cause letters, invitation stating charges and right to be accompanied, hearing minutes) against the Appellant's vague and generalised evidence, and held it would be unreasonable to find prima facie procedural unfairness. The appeal therefore failed on procedural fairness.
Whether the summary dismissal was substantively justified under sections 44(3), 44(4)(e) and 45(2) of the Employment Act
Yes - the dismissal was for insubordination (refusal to sign the complaint form and refusal to attend the individual meeting), admitted by the Appellant, and grave enough in context to justify summary dismissal
The court held the charges were always insubordination, not poor performance, and the trial magistrate's stray reference to sub-par performance was an unfortunate digression. Applying the contextual approach, the Appellant's admitted solidarity-motivated infractions and lack of remorse justified summary dismissal under the Employment Act and CBA.
Whether the Appellant was entitled to the reliefs sought
Notice pay and compensation fell away as dependent reliefs on the failed unfair dismissal claim; but the KShs. 9,600 long service award under clause 40 of the CBA was expressly admitted and should have been awarded
The court categorised the reliefs into those dependent on the unfair dismissal claim and those independent of it. Since the dismissal was fair, notice pay and compensation were rightly refused. The long service award, however, was admitted in the Respondent's pleadings and the trial magistrate erred in failing to award it.
Legal principles established
#- Section 47(5) of the Employment Act imposes two distinct sequential burdens: the employee must first prima facie establish procedural and substantive unfairness before the burden shifts to the employer to justify the termination
- Section 41 procedure comprises three vital ingredients - notification, hearing, and consideration - and the absence of any one renders termination procedurally unfair
- Misconduct does not automatically justify summary dismissal; the contextual approach requires assessing whether the conduct was so grave that the employment relationship could no longer viably subsist
- A first appellate court must reconsider and evaluate the evidence and draw its own conclusions, while making allowances for not having seen or heard the witnesses
Court orders
#- 1.The learned trial Magistrate's Judgment is limitedly disturbed
- 2.The Appellant is 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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (trial court)
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction over the trial Magistrate's judgment in an employment claim (Employment Act; no specific provision quoted in the judgment)
Relief refused
#Three months' salary in lieu of notice (KShs. 73,233)
Relief was dependent on the claim for unfair summary dismissal, which failed; the Appellant was summarily dismissed, not terminated on notice
Compensation for wrongful dismissal under section 49(1)(c) of the Employment Act (KShs. 292,932)
The dismissal was found to be both substantively and procedurally fair, so no compensation was available
Costs
Each party to bear its own costs.
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.
The learned trial Magistrate’s Judgment is hereby limitedly disturbed. The Appellant is awarded Kenya Shillings Nine Thousand, six Hundred Shillings [KShs. 9,600]. The amount shall attract interest at court rates from the date it fell due for payment [the date of dismissal, 6th May 2022] until full payment.
In the upshot, the Appellant’s appeal succeeds to a minimal extent.
Each party to bear its own costs.
It is only after the employee has met this initial requirement that the burden shifts to the employer to demonstrate that the termination was justified.
An employee’s misconduct does not automatically justify a summary dismissal unless it is “so grave” that it indicates the employer’s abandonment of the intent to remain in employment.
Correctly identified and framed issues are like navigation beacons.
Issues in the judgment
#Internal contradiction on employment commencement date: background states employment began 1st September 2011, but the analysis states 1st March 2007
Internal contradiction on the dismissal date: the judgment elsewhere consistently states dismissal on 6th May 2022, but the analysis paragraph states 6th May 2002
Internal contradiction on the disciplinary hearing date: the Respondent's case and the court's analysis place the hearing on 5th May 2022 per an invitation dated 30th April 2022, yet one paragraph and the Respondent's submissions state the hearing was held on 30th April 2022 and another submission mentions 28th April 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Birya v Mini Bakeries (Mombasa) Limited (Appeal E167 of 2024) [2025] KEELRC 2939 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2939/eng@2025-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.