Mwashimba v Aircraft Leasing Services Limited (Cause E447 of 2022) [2026] KEELRC 1655 (KLR) (18 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** **CAUSE NO. E447 OF 2022** *(Before Hon. Justice Dr. Jacob Gakeri)* **BRIAN MWADIME MWASHIMBA………….…………..... PETITIONER** **VERSUS** **AIRCRAFT LEASING SERVICES LIMITED……………….RESPONDENT** **JUDGMENT** The claimant commenced the instant suit on 8th February 2022 alleging that the respondent terminated his employment unfairly as he was sick and thus incapable of performing his duties as a pilot. The claimant admitted that on the evening of 14th November, 2020, he had a meal and a couple of beers at a restaurant near Ihusi Hotel Goma DRC but started feeling unwell with severe abdominal pains throughout the night and by the morning of 15th November 2020 he had abdominal pains and diarrhoea was nauseated and vomiting and by evening he felt weak and called the Base manager at 4 am on 16th November 2020 and informed him of his condition and inability to fly and needed medical attention. That he was forced to undertake the breathalyser test at 7.15 am on 16th November 2020 which indicated he had alcohol in his system of 0.015 and a second one confirmed alcohol at 0.009. The claimant averred that he was attended to at Skyborne Hospital Goma DRC at 8.00 am and tested positive for salmonella candida and decreased level of glucose. That he was attended to on 17th and 18th November 2020 and was due back on 28th November 2020. The claimant prays for: 1. A declaration that the claimant’s employment was unlawfully terminated. 2. Salary in lieu of notice Kshs.150,000.00 3. Twelve months salary Kshs.1,800,000.00 4. Severance pay Kshs.150,000.00 5. Interest in (ii), (iii), (iv) and (v) above 6. Certificate of service 7. Costs of this suit 8. Any other relief as the court would deem just and expedient to grant. **Respondent’s case** Respondent admitted that the claimant was its employee from 1st March 2019 to 2nd December 2020 when his employment was terminated for reporting to work while under the influence of alcohol which rendered him incapable of performing his duties and was taken through a fair disciplinary hearing. The respondent prayed for dismissal of the suit with cost. When the matter came up for hearing on 9th February, 2026, counsels agreed that the matter proceeds by way of documents and written submissions and the court issued appropriate directions and by 14th May 2026 both parties had filed submissions. **Claimant’s submissions** As to whether termination of the claimant’s employment by the respondent was unfair and procedural, reliance was placed on the provisions of section 43 and 45(2) and (4) of the Employment Act as well as the sentiments of the court in **Pius Machafu Isindu v Lavington Security Guards Ltd (2017) eKLR, Walter Ogal Aruro v Teachers Service Commission (2013) eKLR and John Rioba Maugo v Riley Falcon Security Services Ltd (2016) KEELRC 419 KLR** to submit that the respondent had failed to prove that the claimant was intoxicated and thus unable to perform his duties since the claimant reported that he was unwell and tested positive for salmonella, candida and Hypoglycaemia and his explanation was plausible and credible. Reliance was further placed on Clause 12 of the employment contract on sick leave. Counsel submitted that the Respondent deliberately ignored the claimant’s medical evidence and relied on the breathalyser readings. Counsel faulted the Respondent for having conducted a breathalyser test on the claimant citing the decision in **Dayo v Ecart Services Kenya Ltd (2015) eKLR.** According to counsel, the claimant had food poisoning and the incapacity to perform his duties was not self-inflated and the medical evidence was ignored and the respondent had no substantive justification to terminate the claimant’s employment. On reliefs, counsel submitted that the claimant was entitled to the reliefs as prayed for. **Respondent’s Submissions** As to whether the Respondent had a valid reason to terminate the claimant’s employment summarily, reliance was placed on the provisions of section 43, 44 and 45 of the Employment Act to submit that in accordance with the Respondent’s operations procedures, all crew-members scheduled for the flight were subjected to a mandatory routine pre-flight breath alcohol testing and the claimants results for both testing were positive of alcohol beyond the limit of 0.00% as it stood at 0.015% and after 21 minutes 90% and thus contravened the respondent’s policies and none of the medical reports provided proved that the claimant’s medication elevated breath alcohol levels. Similarly, the claimant’s conduct raised concerns in that he alleged to have consumed alcohol on 14th November 2020 and did not report the alleged pains and related ailment to the Chief pilot or any other person at the on set of the illness and only did so on the morning of 16th November 2020, shortly before the flight and it had to be cancelled, occasioning operational disruption. Counsel submitted that the respondent had a valid and justifiable reasons to summarily dismiss the claimant from employment. As regards procedural fairness, counsel relied on the provisions of section 41 of the Employment Act and the sentiments of the Court of Appeal in **Co-operative Bank of Kenya Ltd v Yator (2021) KECA 95 (KLR)** on the centrality of procedural fairness in all instances of gross misconduct to submit that the Respondent complied with the procedural requirements as it issued a notice to show cause, afforded the claimant 7 days to respond, he was invited for a hearing on 25th November 2020 and he attended, was summarily dismissed, appealed the decision and but the dismissal was upheld. On entitlement to reliefs, reliance was placed on **Kenfreight (EA) Ltd v Benson K. Nguti (2019) KESC 79 (KLR)** to urge that the reliefs under section 49 of the Employment Act were discretionary and were only available where a termination of employment was adjudged, unlawful and unfair and in this instance the dismissal was substantively justifiable and procedurally fair. Counsel, further urged that the claimant was not entitled to severance pay as he had not been declared redundant. Counsel cited the decisions in **Munene v XRX, Technologies Ltd (2026) KEELRC, 697 (KLR) and Hassanath Wanjiku v Vanela House of Coffee (2018) KEELRC 663 (KLR)** to reinforce the submission. **Analysis and determination** It is not in dispute that the claimant was an employee of the Respondent serving as a pilot. The facts of this case are largely uncontested. Documentary evidence on record reveals that claimant was attended to at the Skyborne Hospital on 16th November 2020 and on 18th November 2020 on out patient basis and the doctor recommended one day rest and an appointment on 28th November 2020. Regrettably, the laboratory test results and prescription were not provided. From the documents provided by the parties, it is unclear as to when the claimant started feeling unwell for the simple reason that he allegedly took a meal on the evening of 14th November 2020, started feeling unwell the same night, did not nothing the entire day and only sought medical attention on the morning of 16th November at the instance of the Base Manager yet he alleged to have been experiencing pain the entire night and on the morning of 15th November 2020, he had diarrhoea and by evening he was felling weak and nauseated, more than 32 hours later. He provided no explanation as to why he did not seek medical attention on 15th November 2020 or notify the employer of his indisposition. Relatedly, the breathalyser tests revealed that he had consumed alcohol and could not fly as ordained by the Respondent’s operation procedures. The allegation that he was forced to take the tests was unsupported by evidence. The claimant did not disclose who forced him to take the tests and how the duress or coercion was exerted and what he did to register his displeasure or annoyance. Evidence on record also revealed that respondent issued the claimant with a notice to show cause on 18th November 2020 and a response was required within 7 days. The charge was that he embarking on conduct which resulted in his incapacity to perform his duties against disciplinary Code 2.14.23. The claimant responded to the notice to show cause vide email dated 19th November 2020 at 5.20 pm. In his response the claimant did not allege that he was forced to take the breathalyser tests at 7.15 and 20 minutes later. Notably, neither the claimant nor the respondent provided a copy of the invitation for the disciplinary hearing held on 25th November 2020 from 4.15 hours, but minutes of the hearing on record confirmed that the claimant admitted having received the notice on 19th November 2020. It is unclear whether the notice communicated the claimant’s right including being accompanied by a fellow employee of his choice or shopfloor representative, if he was a member of the union. However, the claimant did not contest the issue and the minutes confirmed that the indicated that he did not require any representation. From the minutes of the disciplinary hearing, it is discernible that the claimant did not call the Chief pilot or his delegate in accordance with the respondent’s manual. From the evidence on record, it is discernible that the claimant appealed the dismissal and received a response. However, none of the parties provided a copy of the dismissal letter or the decision on appeal. The issues for determination are: 1. Whether termination of the claimant’s employment by the respondent was unfair and unlawful. 2. Whether the claimant is entitled to the reliefs sought. On the first issue, both the provisions of the Employment Act, specifically sections 41, 43, 44, 45 and 47(b) and case law are unequivocal that for a termination of employment to pass the fairness test it must be proved that the termination was not only substantively justifiable but also procedurally fair. In other words, the employer must have had a valid and fair reason to terminate the employee’s employment and must have conducted it in accordance with a fair procedure as held in **Naima Khamis Vo oxford University Press (EA) Ltd (2017) KECA 480 (KLR)** where the Court of Appeal held: *“…From the foregoing, termination of employment may be substantively and/or procedurally unfair. A termination is also deemed substantively unfair where the employer fails to give valid reasons to support the termination. On the other hand, procedural, unfairness arises where the employer fails to follow the laid down procedure as per the contract or fails to accord the employee an opportunity to be heard as by law required.”* See also the sentiments of Ndolo J (as she then was) in **Walter Ogal Anuro v Teachers Service Commission (Supra).** As regards the reasons or reasons for termination of employment, section 43 of the Employment Act provides: 1. In any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45. 2. The reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the services of the employee. While the claimant averred and submitted that termination of his employment was without a substantive justification, the respondent maintained that the termination was justifiable in the circumstance. Based on the evidence on record it is clear that the claimant failed the breathalyser test on the morning of 16th November, 2020 and his scientific explanation of the possible causes of the failure did not assuage the Disciplinary Committee or the Appeals Panel. It is noteworthy that the claimant’s spirited attempt to explain the failed breathalyser tests using science implicated opinion evidence, which is typically provided by experts in the particular field and supported by data, as necessary and is not binding on the court. Being a pilot as opposed to scientist or medical doctor or expert in the field, the evidence to explain the possible causes of the failure of the breathalyser test lacked persuasion. The pith and substance of this case is whether a reasonable employer would have terminated the claimant’s employment in those circumstance. In **Kenya Revenue Authority v Gitahi & 2 others (2019) KECA 300 (KLR)** the Court of Appeal held: *“The standard of proof is on a balance of probability, not beyond reasonable doubt and all the employer is required to prove the reasons that it “genuinely believed to exist” causing it to terminate the employee service.* *Similarly, in* ***Judicial Service Commission v Gladys Boss Shollei*** *Civil Appeal NO. 50 of 2014 the Court of Appeal cited with approval the following passage from the Supreme Court of Canada in MC Kinley v B. C. Tel (2001) 25.CR 161;* *“Whether an employer is justified in dismissing an employee on the grounds of dishonesty is a question that requires an assessment of the context of the alleged misconduct. More specifically the test is whether the employee’s dishonesty gave rise to a breakdown in the employment relationship. This test can be expressed in different ways. One could say for example that just cause for dismissal exists where the dishonesty violates an essential condition of the employment contract, breaches the faith inherent to the work relationship or fundamentally or directly inconsistent with the employee’s obligation to his or her employer.”* Further guidelines are espoused by the Halsbury’s Laws of England, 4th Edition, Vol.16 (113) paragraph 642 on the range of reasonable responses test applied Lord Denning Mr in **British Leyland (ECC) Ltd v Sharp (1981) IRLR 91** as follows: *“…The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him then the dismissal was fair. It must be remembered that in all these cases, there is a band of reasonableness withing which an employer might reasonably take one view: another quite reasonably takes a different view.”* As emphasized by the Court of Appeal in **Kenya Revenue Authority v Gitahi & 2 others (Supra),** the test of what the employer “genuinely believed to exist” and which justified the termination of employment is partly subjective and as held by **B. O. M. Manani J in Galgalo Jarso Jillo v Agricultural Finance Corporation (2021) eKLR**, all the employer is required to show is a reasonable basis or ground for the believe that it had a reason to terminate the employee’s employment. In the instant case the respondent conducted the breathalyser test on the claimant at 7.15 hours and 20 minutes thereafter and in both cases, he failed the test thus rendering him incapable of flying the flight he was scheduled to fly that morning and it had to be cancelled. Although it is unclear as to when the claimant took alcohol, having availed no evidence that it was indeed 14th November 2020, and was aware that he would be on duty on the morning of 16th November 2020, his conduct, in the respondents, view violated its Operations Manual and in particular clause 6.2.1 which disallowed a crew November to fly if aware of the decrease in his medical fitness to fly safely. Bearing in mind that the claimant was aware of the Respondent Operations Manual regarding a pilot’s alcohol level before departure at 0.00% and failed the breathalyser test on the morning he was scheduled to fly, leading to the cancellation of the flight the claimant’s conduct amounted to a misconduct and the Respondent had a justification for its genuine believe that it had a reason to terminate the claimant’s employment. It requires no belabouring that safety is the cornerstone of air transport of goods and passenger and a pilots fitness to fly a plane safely ranks as one of the highest considerations other than serviceability of the aircraft. In Kenya, the Kenya Civil Act Authority regulates pilots in Kenya and the BAC must not exceed section 91.17. In the United State of America, a pilot cannot fly an aircraft within 8 hours of having consumed alcohol or where the alcohol concentration is 0.04 or higher in a blood or breath specimen. Under the United Kingdom Regulation (EU) No. 9651/2012 Annex II, Part ARO, RAMP, the alcohol should not exceed the equivalent of 0.2 grams of blood alcohol concentration per litre of blood. Finally, the South African Civil Aviation Regulations restricts an sumption of alcoholic beverages within eight (8) hour of reporting for duty and the Blood Alcohol Content (BAC) limit of 0.02 grams per 100 ml for pilots. The foregoing comparison demonstrates that an crew member cannot act a such if he or she’s alcohol content in the blood or breath exceeds a prescribed minimum. In the instant case although the respondent did not conduct a blood test, the breathalyser tests confirmed the presence of alcohol in the claimant’s breath in excess of the employer’s limit rendering the claimant liable for disciplinary action for misconduct. Having worked for the respondent since Mach, 2018, the claimant was aware of its operations manual and in particular the permitted level of alcohol. Would a reasonable employer have acted in the manner the respondent did? The court is not persuaded that a reasonable employer in the circumstances of the Respondent would have acted differently. For the above-mentioned reasons, it is the finding of this court that thE respondent had a valid and fair reason to terminate the claimant’s employment summarily. Significantly, the claimant did not fault the procedural aspects of termination of his employment and as adverted to elsewhere in this judgment, the claimant received and responded to the notice to show cause was invited and participated in the hearing, received the letter of dismissal appealed the decision, was invited for an appeal hearing, participated and received an outcome, the court is satisfied that nothing turns on this issue. As regards entitlement to the reliefs prayed for having found that the respondent had a substantive justification to terminate the claimant’s employment, the court is satisfied that none of the reliefs commend itself save the certificate of service which is requirement of section 51 of the Employment Act and thus a right of a former employee. From the foregoing it is discernible that the claimant’s case is for dismissal and its accordingly dismissed. Parties shall hear their own costs. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 18TH DAY OF JUNE, 2026** **DR. JACOB GAKERI** **JUDGE** **ORDER** In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with **Order 21 Rule 1** of **the Civil Procedure Rules**, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of **Section 1B** of the **Civil Procedure Act (Chapter 21 of the Laws of Kenya)** which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. **DR. JACOB GAKERI** **JUDGE**