Desertion constitutes employee-initiated termination, and not unfair dismissal by the employer: The Case of Mumali v Blink Studio Limited [2025] KEELRC 2112 (KLR)

Full Case: Mumali v Blink Studio Limited [2025] KEELRC 2112 (KLR)

1. Facts of the Case

The Claimant, Mr. Mumali, was an employee of Blink Studio Limited under a contract governed by the Employment Act, 2007. During the subsistence of his employment, the Claimant stopped reporting to work without giving any notice or communication to the Respondent.

The Respondent attempted to contact the Claimant but received no response or indication of his intention to return to work. Consequently, the Respondent issued a one-month notice of termination, citing abscondment of duty and breach of the employment contract.

The Claimant subsequently filed a suit at the Employment and Labour Relations Court, alleging unfair termination on the grounds that the Respondent had not followed the procedural safeguards required under the Employment Act.

The Respondent defended the claim, asserting that the Claimant’s conduct amounted to desertion, constituting repudiation of the contract, and that the Respondent merely accepted that repudiation through a notice of termination.

2. Issues for Determination

1. Whether the Claimant’s prolonged absence without communication amounted to desertion of duty.
2. Whether the Respondent’s issuance of a termination notice constituted unfair termination under the Employment Act, 2007.
3. Whether the Respondent’s actions met the requirements of procedural fairness under Kenyan employment law.

3. Arguments by the Parties

(a) Claimant’s Arguments

• The Claimant alleged that the Respondent unlawfully and unfairly terminated his employment.
• He argued that he was not given a notice to show cause, nor was he subjected to a disciplinary hearing as required under Section 41 of the Employment Act.
• He sought compensation for unfair termination, notice pay, and other terminal dues.

(b) Respondent’s Arguments

• The Respondent contended that the Claimant absconded duty and failed to communicate any intention to resume work.
• It was submitted that the Claimant’s conduct constituted desertion, thereby repudiating the employment contract.
• The Respondent’s issuance of a termination notice was an acceptance of that repudiation, not a dismissal.
• The Respondent argued that, under these circumstances, it had acted reasonably and within the law.

4. Court’s Determination / Holding

The Court held in favour of the Respondent and made the following findings:

1. Desertion of Duty:
   The Claimant’s absence from work without communication or explanation constituted desertion. His actions demonstrated an intention not to resume employment.
2. Repudiation of the Contract:
   The Court held that such desertion amounted to repudiation of the employment contract by the employee himself.
3. Acceptance of Repudiation:
   The Respondent’s act of issuing a notice of termination was interpreted as acceptance of the employee’s repudiation, not an act of unfair termination.
4. Procedural Fairness:
   The Court found that in cases of desertion, the obligation to conduct a disciplinary hearing is limited, since the employee has effectively abandoned the employment relationship. The procedure adopted by the Respondent was therefore fair, reasonable, and lawful.

The Claimant’s case was dismissed in its entirety.

5. Ratio Decidendi (Legal Reasoning)

• Desertion occurs where an employee absents themselves from duty without leave or reasonable cause, and with no intention to return.
• Such conduct amounts to repudiation of the employment contract, entitling the employer to treat the contract as terminated.
• When the employer issues a termination letter in these circumstances, it is not a dismissal but a formal acceptance of the repudiation.
• The procedural requirements under Section 41 (right to a hearing) are not strictly applicable when the employee has effectively severed the employment relationship through their own actions.

6. Legal Significance / Precedent Value

This case reinforces the principle that:

• Desertion by an employee amounts to self-termination or repudiation of the employment contract.
• Employers are protected where they act reasonably and document attempts to contact an absent employee.
• The decision aligns with earlier authorities confirming that desertion is a valid ground for termination, and that procedural fairness requirements are context-dependent.

The case provides useful clarification for employers on handling abscondment or desertion cases, affirming that issuing a termination notice after prolonged unexplained absence is lawful and fair.

7. Statutory References

• Employment Act, 2007 (Kenya):
• Section 41: Procedural fairness — requirement for a hearing before termination (subject to practicality in desertion cases).
• Section 43: Proof of reason for termination — employer must justify the reason for termination.
• Section 44(4)(a): Grounds for summary dismissal — absence from work without leave or lawful cause.
• Section 45: Unfair termination — conditions that render a termination unfair (not applicable where the employee deserts).

8. Related Case Law / Authorities

1. Felistas Acheha Ikatwa v Charles Peter Otieno [2018] eKLR
• Held that desertion occurs when an employee leaves work without intention to return, and the employer’s acceptance of that act is not unfair termination.
2. Seabolo v Belgravia Hotel (2011) ZALCJHB 23 (South Africa)
• Frequently cited in Kenya; held that where an employee deserts employment, the employer need not go through a disciplinary hearing if the employee has effectively terminated the contract by conduct.
3. Joseph Nzioka v Smart Coatings Limited [2017] eKLR
• The court found that failure to report to work without notice or communication constituted desertion and justified termination.
4. Bernard Wanjohi Muriuki v Kirinyaga Water & Sanitation Company Ltd & Another [2012] eKLR
• Established that procedural fairness under Section 41 can be dispensed with when the employee’s conduct amounts to repudiation or desertion.

9. Key Takeaway

An employee who absconds or deserts duty without communication effectively terminates their own employment. In such situations, the employer’s issuance of a notice of termination is merely an administrative confirmation of that fact and does not amount to unfair termination.

Employers should, however, make reasonable efforts to contact the employee, keep records of such efforts, and issue formal notice confirming the termination to ensure compliance with the spirit of fairness under the Employment Act.