High on the Clock: An Exposition of Case Law on Intoxication at the Workplace

Section 44 (4) (b) of the Employment Act allows an employer to exercise the harshest of employment sanc­tions by summarily dismissing an em­ployee from employment who be­comes unwilling or incapable of working or performing their duties by reason of intoxication. There is no legal definition of the term ‘intoxica­tion’ and its ordinary meaning is a transient state of diminished mental or physical control as a result of con­sumption of alcohol, drugs or other substances. Naturally, this is not an ideal state for anyone at the work­place. This is why summary dismissal for intoxication at the workplace is allowed by the law.

Nevertheless, it is not as simple as perceiving intoxica­tion for instance by sight or smell. That an employee has had a tipple with their lunch or a covert Irish 4.00 o’clock coffee is not enough to meet the legal threshold for sum­mary dismissal for intoxica­tion. A reading of Section 44

(4) (b) of the Employment Act shows that for intoxication to pass the muster of validity, it should have the effect of causing the employee to be unwilling and incapable of performing their duties. Whether an employer is justi­fied in dismissed an employ­ee for intoxication at the workplace has been consid­ered by the Employment and Labour Relations Court (ELRC) in various cases de­tailed below.

In the widely cited decision of the ELRC in Maugo v Riley Falcon Security Services [2016]eKLR (Onyango J) the court clarified that an em­ployer has the burden of proving intoxication as well as unwillingness and incapability to work. The court accepted that this may not always be through imperial scientific ev­idence such as a blood test, however, there should be some evidence of intoxica­tion and unwillingness/inca­pability through other means. The decision suggests that the employer may engage other methods such as requir­ing an employee to walk in a straight line; reading or writ­ing a paragraph; or perform any other task that a sober person would be able to do in order to establish intoxi­cation. As this had not been done, the court found that the employer had not proved that it had validly dismissed the employee for intoxication and an award of compensation for unfair ter­mination of 6 months’ salary was made in favour of the employee.

Apart from blood and breathalyser tests that scien­tifically prove intoxication, how then does an employer prove intoxication that has led to unwillingness or inca­pability to work?

Many employers will deal with this through internal pol­icies and procedures de­pending on the specific re­quirements of the work un­dertaken by the employees. Understandably those in­volved in driving or operation of heavy machinery or per­haps those in healthcare and in other customer facing roles will have different poli­cies relating to workplace in­toxication.
In Ajuoga v Kenya Revenue Authority [2024] eKLR (BaariJ) the claimant sued the em­ployer for unfair termination on the basis that intoxication cited as the reason for dis­missal had not been proved by the employer.

The claimant argued that em­ployer had not shown that the employee was both intox­icated and unwilling/incapa­ble of performing their duties as required by the Employ­ment Act. However, the em­ployer relied on a picture of the employee taken on the material day showing the em­ployee sprawled on the floor at the workplace seemingly unresponsive. The ELRC ac­cepted this as proof of intoxi­cation and incapability to work and consequently dis­missed the employee’s claim.

Similarly in Manegene vs Mamba Group of Hotels Ltd [2025]eKLR (Abuodha J) in­toxication as well as unwill­ingness or incapability to work were accepted as having been established by the em­ployer who tendered evidence showing that an employee re­ported to work while intoxicat­ed and subsequently injured himself by leaping out of a window of the employer’s sto­ried building in an attempt to commit suicide which was also reported to the police. In this the case the employee was awarded only 1 month’s salary as compensation for the dis­missal because the employer did not follow a fair process de­spite having established valid reasons.

Another serious case of intoxi­cation was demonstrated in Kenya Plantation & Agricultur­al Workers Union v Ekatera Tea Kenya [2025]eKLR (RikaJ) where the Union filed suit on behalf of one of their members who had been sum­marily dismissed on account of intoxication and gross mis­conduct that occurred on housing premises provided for employees by the employ­er. On Christmas Day the em­ployees had gone out for merry making which included consumption of alcohol. One of them who was drunk stabbed the other who was also drunk in the eye. The em­ployer dismissed the employ­ee who stabbed his colleague and the court accepted the position that the dismissal was fair in the circumstances.

Therefore, policies on regula­tion of intoxication at the workplace are an important factor for employers to con­sider as part of establishing this ground as a basis for dis­missal. In Kenya Aviation Workers Union v Kenya Air­ways Limited [2022] eKLR
(Rika J) the employer’s policy required an employee to be subjected to alcohol level testing where their behaviour suggested intoxication. In this case the employee ap­peared to have been stagger­ing while descending the stairs of an aircraft, but they refused to be subjected to alcohol testing. The court held that such refusal amounted to insubordination and formed a basis for sum­mary dismissal of the employ­ee in any event.

While most cases seem to suggest that there should be a be­havioural component to intoxication in order to demonstrate un­willingness and incapability to work a recent decision of the ELRC took a slightly different position. In Mwashimba v Aircraft Leasing Services Limited [2026]eKLR (Dr. Gakeri J), the ELRC held that a pilot was justifiably dismissed from employment for intoxication where the employer’s policy provided for a blood alcohol level of 0.00 and the pilot’s blood alcohol level was found to be above that although he was not visibly inebriated. The court held that due to the importance of safety in the aviation industry, the employer was justified in enforcing the strict standard and dismissing the employ­ee whose blood alcohol level contravened the policy on this.

Consideration should therefore be given to the wording of work­place policies on intoxication and their implementation by employ­ers according to their unique environments and requirements of their operations.

For more information on this please contact our team on nairobi@mmkadvocates.co.ke