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Mini Bakeries (MSA) Ltd v Mativo (Employment and Labour Relations Appeal E153 of 2025) [2026] KEELRC 2035 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEELRC 2035 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Employment and Labour Relations Appeal E153 of 2025 K Ocharo, J June 25, 2026 Between Mini Bakeries (MSA) Limited Appellant and Stephen Mativo Respondent Judgment 1.The Respondent, Stephen Mativo, was the claimant before the Chief Magistrate's Court at Mombasa in CMELRC Cause No. E127 of 2024. He instituted that suit against the Appellant, Mini Bakeries (Mombasa) Limited, by a Memorandum of Claim dated 13th February 2024, alleging that his employment had been unlawfully, unfairly and unprocedurally terminated by summary dismissal. 2.He prayed for judgment for terminal dues and/or compensation for wrongful termination in the sum of KShs. 408,861.00, particularised as three months' salary in lieu of notice (KShs. 24,411.00 × 3, being KShs. 73,233.00), payment for an allegedly illegally deducted house allowance over twenty-four months (KShs. 42,696.00), and compensation for unfair termination under section 49(1)(c) of the Employment Act, 2007 (KShs. 24,411.00 × 12, being KShs. 292,932.00), together with interest and costs. 3.The Appellant resisted the claim by a Statement of Response dated 24th April 2024, maintaining that the Respondent had been lawfully summarily dismissed for gross misconduct amounting to insubordination, after a lawful disciplinary process, for refusing to obey lawful instructions on two occasions. The Respondent's Case Before the Lower Court 4.The Respondent's case was that he had worked for the Appellant as a mixer since February 2001, latterly under a written contract dated 20th September 2011, and that by April 2022 he earned a monthly salary of Kshs. 24,411.00. Mixers worked in shifts of four, each expected to handle six bags, making a total of twenty-four bags per shift and seventytwo bags per day, an arrangement he said had subsisted since 2001. In April 2022, management raised the target to eighty-one bags a day, or twenty-seven bags a shift, which he contended could not be met within an ordinary eight-hour shift without unremunerated overtime and amounted to a unilateral variation of his terms of employment. 5.He stated that when the enhanced target was not met, he and other mixers were issued with a complaint form which he declined to sign, and that on 25th April 2022 they were verbally invited to a meeting on the target, which they attended as a group because the issue affected them collectively, but which management declined to hold. They were instead served with notices to show cause dated 25th April 2022 for declining to sign the complaint form and for failing to attend an individual meeting, and were thereafter invited, by letter dated 26th April 2022, to a disciplinary hearing on 28th April 2022. He was summarily dismissed on 6th May 2022 on grounds of gross misconduct and insubordination, which he maintained was unlawful and premeditated, the Appellant's true intention being to dismiss the mixers rather than genuinely engage with their grievance over the production target. The Appellant's Case Before the Lower Court 6.The Appellant's witness, Nancy Gacheru, its Legal Officer, confirmed that the Respondent was a mixer whose employment commenced on 1st October 2011, and that he was summarily dismissed by letter dated 6th May 2022. She stated that eighty-one bags a day, or twenty-seven bags a shift, was the applicable and long-achieved production standard for mixers, and that on 9th April 2022 the Respondent and seven other mixers openly defied the Appellant by refusing to meet it. A complaint form dated 9th April 2022 was prepared, but the Respondent refused to sign it. 7.She testified that, because more than one mixer had fallen short of the target, management resolved to meet each of them individually to understand his particular challenge, and scheduled a meeting with the Respondent for 23rd April 2022. Although he presented himself, he declined to attend individually, insisting that the meeting be a plenary one with all mixers, citing “solidarity/team work”. This refusal, together with the earlier refusal to sign the complaint form, was treated as two distinct infractions, for which the Respondent was issued with two notices to show cause dated 25th April 2022, to which he responded the same day. He was thereafter invited, by letter dated 26th April 2022, to a disciplinary hearing held on 28th April 2022, which he attended and at which, having initially been equivocal, he ultimately accepted his mistakes and sought pardon. The Appellant maintained that the Respondent had thereby knowingly refused to obey lawful and proper instructions, warranting summary dismissal, that no notice or pay in lieu was due on a summary dismissal, and that the house allowance had been varied pursuant to an agreement of 8th April 2020 between the Appellant and the Bakery and Confectionery Workers Union, of which the Respondent was a member. Judgment of the Lower Court 8.The trial court identified two issues for determination: whether the summary dismissal was lawful and procedurally fair, and whether the Respondent was entitled to the reliefs sought. It held that the Appellant had not shown that the production target of eighty-one bags was a contractual term, a written policy, or a term of any collective bargaining agreement binding the Respondent, and that neither the refusal to sign the complaint form nor the alleged failure to attend the meeting was shown to amount to disobedience of a lawful and reasonable instruction. It found no documentary evidence of a disciplinary hearing or written explanation of the alleged misconduct, and concluded that the dismissal was neither substantively nor procedurally fair, amounting to unlawful termination under sections 41, 43 and 45 of the Employment Act. 9.On remedies, the trial court awarded the Respondent KShs. 73,233.00 (KShs. 24,411.00 ×3) as three months' salary in lieu of notice under clause 5(iii) of his employment contract, and KShs. 146,466.00, being six months' salary, as compensation for unfair termination under section 49(1)(c) of the Employment Act, having regard to his length of service, the absence of proven wrongdoing, the denial of a fair hearing, and his diminished prospects of alternative employment. The claim for the house allowance deductions was dismissed, the court having found that the variation was made pursuant to a consultative agreement between the Appellant and the union of which the Respondent was a member. Judgment was accordingly entered for the Respondent in the sum of KShs. 219,699.00, with costs of the suit and interest at court rates from the date of judgment until payment in full. Grounds of Appeal 10.Aggrieved, the Appellant filed its Memorandum of Appeal on three grounds: that the trial court erred in law and fact in finding that the termination was substantively unfair; that it erred in finding that the termination was procedurally unfair when the evidence did not warrant that conclusion; and that it erred, in any event, in making the monetary awards it did. The Appellant's Submissions 11.The Appellant submitted that the Respondent was dismissed for insubordination, having twice refused to obey lawful instructions, and that this appeal was one of three arising from the same disciplinary episode: two other mixers dismissed in the same circumstances, Kilumo Ruwa Kingi and Kazungu Ngumbao Birya, had their claims dismissed by the trial court and their subsequent appeals substantially dismissed by this Court in Kingi v Mini Bakeries (Mombasa) Limited [2025] KEELRC 2897 (KLR) and Birya v Mini Bakeries (Mombasa) Limited [2025] KEELRC 2939 (KLR). The Appellant urged that the learned trial Magistrate in the present matter ought, on materially identical facts, to have reached the same conclusion. It pointed to the two notices to show cause at pages 22 and 23 of the Record of Appeal, and the minutes of the disciplinary hearing at pages 65 and 66, to submit that the trial court erred in finding that there was no notice, hearing or documented explanation of the alleged misconduct, and that on the evidence the trial court was bound to find a valid reason for dismissal and a fair procedure, such that the awards of notice pay and compensation ought not to have been made. The Respondent's Submissions 12.The Respondent submitted that the appeal was unmeritorious. He argued that Kingi and Birya involved different claimants whose pleadings and evidence were not before this Court in this appeal, were not representative or class proceedings, and that this appeal fell to be determined on its own record. He further submitted that the Appellant had, in substance, abandoned the grounds pleaded in its Memorandum of Appeal in favour of reliance on those other decisions, contrary to the principle that parties are bound by their pleadings. On the merits, he submitted that the true dispute concerned the lawfulness of the eighty-one-bag target, which was aspirational and not a contractual or lawful instruction, such that neither his refusal to sign the complaint form nor his conduct at the scheduled meeting could amount to insubordination under section 44(4)(e) of the Employment Act, relying on Hakika Transporters Services Ltd v Salim Nassoro Mwariwa & Others, Civil Appeal No. 125 of 2019, and Kenya Ports Authority & Another v Joseph Makau Munyao & Others, Civil Appeal No. 134 of 2018. He maintained that the disciplinary hearing was a sham, that there had been confusion as to whether the meeting was to be individual or plenary, that he had explained himself and was apologetic, and that summary dismissal, after over ten years of unblemished service, was a disproportionate response unsupported by evidence of gross misconduct. He urged the Court to dismiss the appeal with costs and uphold the judgment of the lower court. Issues for Determination 13.Having considered the record of appeal, the judgment of the lower court, the Memorandum of Appeal, and the parties' rival submissions, the following issues arise for determination: whether the trial court erred in finding that the Respondent's dismissal was substantively unfair; whether it erred in finding that the dismissal was procedurally unfair; whether it erred in the monetary awards made; and who bears the costs. Analysis and Determination 14.This being a first appeal, the Court is required to reconsider and re-evaluate the evidence on record and to draw its own independent conclusions, bearing in mind that it did not see or hear the witnesses testify, and will not lightly interfere with findings of fact unless it is shown that the trial court acted on no evidence, misapprehended the evidence, or applied wrong principles of law. 15.It is not in dispute that the Respondent was an employee of the Appellant, that he was summarily dismissed on 6th May 2022, or that the applicable gross monthly salary was KShs. 24,411.00. What is in question is whether that dismissal was both substantively and procedurally fair as required by section 45(2) of the Employment Act, 2007. The Burden of Proof 16.Section 47(5) of the Employment Act imposes two distinct obligations on the employee and the employer, which are ordinarily discharged sequentially. The employee bears the burden of establishing, at least prima facie, that his termination was not in accordance with procedural and substantive fairness; only once the employee has met that initial threshold does the burden shift to the employer to justify the termination as valid and fair. It is against that sequential framework that the rival cases must be assessed. (a) Whether the dismissal was substantively unfair 17.I respectfully consider that both the trial court and, with respect, the framing of the Respondent's own case before this Court proceed from a mischaracterisation of the real issue. The dismissal was not founded on an allegation of poor performance, that is to say, an inability to meet a production quota; it was founded on an allegation of insubordination under section 44(4)(e) of the Employment Act and clause 6(b)(v) of the applicable Collective Bargaining Agreement. That distinction is critical, and I find that it was, whether by design or otherwise, elided in the proceedings below. 18.Section 44(3) of the Employment Act permits an employer to summarily dismiss an employee where, by his conduct, he has indicated that he has fundamentally breached his obligations arising under the contract of service. Section 44(4)(e) identifies, as one such fundamental breach, circumstances where an employee“…knowingly fails, or refuses, to obey a lawful and proper command which it was within the scope of his duty to obey, issued by his employer or a person placed in authority over him by his employer.” 17.The two notices to show cause dated 25th April 2022 were framed squarely in those terms: the first concerned the Respondent's refusal to sign the complaint form issued when the mixers fell short of the enhanced production target; the second concerned his refusal to attend the individual meeting scheduled for 23rd April 2022, insisting instead on a plenary meeting of all mixers. On his own account, and as recorded in his written response of 25th April 2022, the Respondent did not deny declining to sign the complaint form or declining to attend individually; his explanation was that he did so out of solidarity with his fellow mixers. That is not a denial of the conduct charged; it is, in substance, an admission of it, coupled with a justification. 18.Whether the target of eighty-one bags a day was itself a fair, reasonable or contractually binding standard was a live and legitimate grievance, and one the Respondent was entitled to pursue through proper channels, including the grievance and collective bargaining machinery available to him as a unionisable employee. It was not, however, open to him unilaterally to decide that, because he disputed the underlying target, he could disregard two entirely distinct and freestanding instructions: to sign an administrative form, and to attend a scheduled individual meeting convened to discuss his own performance. Signing a complaint form is not an admission of liability; it is, at its highest, an acknowledgement that a complaint has been raised, and the Respondent was free to record his objection to its contents. Similarly, an instruction to attend an individual meeting, in an environment where several mixers had fallen short of a common target, was neither unlawful nor unreasonable; individual accountability for individual performance is a legitimate, and indeed ordinary, incident of the employment relationship, and an employee does not have a right to dictate to his employer the format in which he will be heard. 19.I am unable to find, as the trial court did, that the Appellant was required to prove that the production target was a contractual term before it could rely on the Respondent's refusal to sign the form or to attend the meeting as insubordination. The lawfulness of the underlying target and the lawfulness of the two discrete instructions are separate questions, and the trial court, with respect, conflated them. I find that the instructions to sign the complaint form and to attend the individual meeting were, each, lawful and proper commands, within the scope of the Respondent's duty to obey as an employee of the Appellant, and that he knowingly declined to obey both. 20.The inquiry, however, does not end there. Not every act of disobedience justifies summary dismissal; the conduct must, in the words of section 44(3), amount to a fundamental breach such that the employment relationship can no longer viably subsist. The applicable test was expressed by the Supreme Court of Canada in McKinley v BC Tel [2001] 2 SCR 161, 2001 SCC 38, in terms I respectfully adopt:“When examining whether an employee's conduct justifies his or her dismissal, Courts have considered the context of the alleged insubordination. Within this analysis, a finding of misconduct does not, by itself, give rise to a just cause. Rather, the question to be addressed is whether, in the circumstances, the behaviour was such that the employment relationship could no longer viably subsist.” 17.Considering the context in which the Respondent's conduct arose, including the industry in which the Appellant operates and the exacting demands of continuous production, the Respondent's role as a mixer whose individual output formed part of a coordinated production line, his own admission that his refusals were deliberate and motivated by solidarity with his co-workers rather than any incapacity or misunderstanding, and the absence of any evidence of remorse or an undertaking to comply with lawful instructions in future, I am satisfied that the conduct established was sufficiently grave to justify summary dismissal. A coordinated and deliberate refusal by a group of mixers to individually account for shortfalls in production, dressed as “solidarity”, strikes at the heart of an employer's ability to manage its workforce and to enforce lawful and reasonable instructions, and I find that it was conduct with which the employment relationship could not viably subsist. I accordingly find that the learned trial Magistrate erred in finding that the dismissal was not substantively justified. (b) Whether the dismissal was procedurally unfair 24.Section 41 of the Employment Act requires an employer, before terminating employment on grounds of misconduct, to explain to the employee, in a language he understands, the reason for which termination is being considered, and to hear and consider his representations and those of a person of his choice who accompanies him. The Court of Appeal, in Postal Corporation of Kenya v Andrew K. Tanui [2019] KECA 489 (KLR), identified the essential requirements of that provision as being:“(i)an explanation of the grounds of termination in a language understood by the employee; (ii) the reason for which the employer is considering termination; (iii) entitlement of an employee to the presence of another employee of his choice when the explanation of the grounds of termination is made; (iv) hearing and considering any representations made by the employee and the person chosen by the employee.” 24.Measured against that standard, the record discloses that the Respondent was issued with two notices to show cause dated 25th April 2022, appearing at pages 22 and 23 of the Record of Appeal, clearly setting out the two charges against him; that he responded in writing the same day; that he was thereafter invited, by letter dated 26th April 2022, to a disciplinary hearing on 28th April 2022, at which the charges and his right to representation were communicated; and that he in fact attended that hearing, the minutes of which appear at pages 65 and 66 of the Record of Appeal, and at which he was heard, ultimately accepted his conduct, and sought pardon. That sequence satisfies each of the requirements identified in Postal Corporation of Kenya v Andrew K. Tanui (supra). I find that the trial court fell into error in holding that there was no notice, no hearing and no documented explanation of the alleged misconduct. I find that the dismissal was procedurally fair. (c) Whether the trial court erred in the monetary awards made 26.Having found that the Respondent's summary dismissal was both substantively and procedurally fair, it follows that he was not entitled to three months' salary in lieu of notice, notice not being due on a valid summary dismissal, nor to compensation for unfair termination under section 49(1)(c) of the Employment Act, that relief being available only where a termination is found to be unfair. The awards of KShs. 73,233.00 and KShs.146,466.00 made by the trial court cannot, in the circumstances, stand. 26.I have also considered the trial court's dismissal of the claim for the house allowance deductions, which was not the subject of any cross-appeal and which, on the unchallenged finding that the variation was effected pursuant to a consultative agreement between the Appellant and the Respondent's union, I find no basis to disturb. (d) Who bears the costs 28.Costs ordinarily follow the event. The Appellant having succeeded in its appeal in its entirety, it is entitled to the costs of this appeal. 29.In the upshot, I find the Appellant's appeal to have merit. It is allowed, and the Judgment of the trial court in CMELRC Cause No. E127 of 2024 is set aside in its entirety and substituted with an order dismissing the Respondent's claim in that cause in its entirety. Disposition 28.For the reasons set out above, I make the following orders:(a)The appeal be and is hereby allowed.b.The Judgment and decree of the trial court in CMELRC Cause No. E127 of 2024 be and is hereby set aside in its entirety.c.In substitution therefor, the Respondent's claim in CMELRC Cause No. E127 of 2024 be and is hereby dismissed in its entirety.d.The costs of this appeal shall be borne by the Respondent, payable to the Appellant.It is so ordered. READ, DELIVERED AND SIGNED THIS 25th DAY OF JUNE 2026.OCHARO KEBIRAJUDGE