Legitimate Expectation and Fairness in Successive Fixed-Term Contracts: The Case of Changalwa v Unga Limited [2025] KEELRC 1389 (KLR)

Legitimate Expectation and Fairness in Successive Fixed-Term Contracts: The Case of Changalwa v Unga Limited [2025] KEELRC 1389 (KLR)

Factual Summary

In Changalwa v Unga Limited, the Employment and Labour Relations Court (ELRC) considered whether an employee engaged on consecutive fixed-term contracts over a long period could claim a legitimate expectation of renewal or prior notice of non-renewal.

The claimant had worked for Unga Limited for thirteen consecutive years under successive fixed-term contracts. Despite being formally a fixed-term employee, he was included in a gratuity scheme available only to permanent staff. When the employer allowed the last contract to lapse without renewal or advance notice, the employee contended that this violated his legitimate expectation and amounted to an unfair labour practice.

The employer countered that the contract had expired by effluxion of time, and that fixed-term employment does not create an automatic right or expectation of renewal.

The court disagreed with the employer. It found that the claimant’s continuous service, combined with treatment identical to permanent employees, created a legitimate expectation that the contract would either be renewed or that he would receive prior notice of non-renewal. The court held that the respondent’s conduct violated the constitutional right to fair labour practices under Article 41 of the Constitution of Kenya, 2010 and Section 45 of the Employment Act, 2007.

Accordingly, the non-renewal was declared unfair, and the court awarded appropriate compensation.

Analytical Legal Commentary

1. Introduction

The Changalwa decision marks an important addition to Kenyan jurisprudence on the treatment of long-serving employees under fixed-term arrangements. It underscores the judiciary’s continued expansion of the doctrine of legitimate expectation into the employment law sphere, ensuring that the letter of contractual terms does not override the spirit of fairness guaranteed by the Constitution.

The case reflects the delicate balance courts must strike between contractual autonomy—allowing parties to define the duration of employment—and equitable fairness—ensuring employers do not exploit fixed-term contracts to deny employees rights normally associated with permanent employment.

2. Legal Issue

The central issue before the court was whether prolonged employment through successive fixed-term contracts, coupled with benefits afforded to permanent staff, can generate a legitimate expectation of continued employment or notice of termination.

3. The Court’s Findings

The ELRC held that the combination of the claimant’s 13 years of uninterrupted service and his participation in a permanent employee gratuity scheme created a legitimate expectation of renewal or prior notice. The employer’s failure to provide either amounted to procedural and substantive unfairness.

The court drew on the doctrine of legitimate expectation—traditionally rooted in administrative law—and affirmed its applicability in employment relations. By doing so, the court extended constitutional protection to employees facing abrupt or arbitrary non-renewals of fixed-term contracts.

4. Analytical Discussion

(a) Fixed-Term Contracts and Their Legal Nature

Under general employment law, fixed-term contracts terminate automatically upon expiry, without the need for notice, unless renewal is explicitly agreed upon. This principle was reiterated in several prior decisions, including Registered Trustees of the PCEA & Another v Ruth Gathoni Ngotho-Kariuki [2017] eKLR.

However, Kenyan courts have increasingly recognised that strict adherence to this principle may produce inequitable outcomes, particularly where employers repeatedly renew fixed-term contracts for extended periods—effectively creating permanent relationships in substance, though not in form.

(b) Legitimate Expectation in Employment Law

The doctrine of legitimate expectation, borrowed from administrative law, protects individuals from arbitrary deviation from an established pattern of conduct by an authority or employer. In employment relations, it prevents employers from using fixed-term contracts to disguise ongoing employment relationships.

In Changalwa, the court reaffirmed that legitimate expectation may arise where:

1. There is consistent renewal of contracts over time;
2. The employer’s conduct suggests continuity (e.g., inclusion in permanent staff benefits); and
3. The employee reasonably relies on such conduct to expect renewal or advance notice.

This reasoning aligns with Elizabeth Washeke & Others v Airtel Networks (K) Ltd [2013] eKLR and Transparency International Kenya v Sheila M. M’Mbijjewe & Others [2022] eKLR, where the ELRC held that fairness and good faith must guide decisions regarding non-renewal.

(c) Fair Labour Practices under Article 41

Article 41(1) of the Constitution guarantees every worker the right to fair labour practices, while Section 45(2) of the Employment Act prohibits unfair termination. Although non-renewal of a fixed-term contract is not, strictly speaking, a “termination,” courts have interpreted these provisions purposively to protect employees from arbitrary discontinuation of employment.

In Changalwa, the court emphasised that employers who maintain employees on long, rolling fixed-term contracts cannot rely solely on the technical expiry of time to defeat constitutional obligations of fairness and transparency. This constitutionalisation of employment fairness represents a progressive reading of Article 41, ensuring that employment relationships are governed not only by contractual form but also by substantive justice.

(d) Practical Implications for Employers

The judgment sends a clear warning to employers who habitually engage employees under consecutive fixed-term contracts. Where such arrangements extend for several years and mirror the conditions of permanent employment, employers risk creating implied legitimate expectations.

To mitigate liability, employers should:

• Clearly define the temporary nature of fixed-term engagements;
• Communicate renewal or non-renewal decisions in advance;
• Avoid extending permanent benefits (such as pension or gratuity) to fixed-term employees unless expressly warranted; and
• Consider converting long-serving fixed-term employees to indefinite contracts where the employment need is continuous.

5. Ratio Decidendi

Where an employee serves under successive fixed-term contracts for an extended period and is treated similarly to permanent staff, a legitimate expectation of renewal or prior notice arises. Failure to meet that expectation amounts to unfair labour practice, contrary to Article 41 of the Constitution and Section 45 of the Employment Act.

6. Significance of the Decision

Mabonga (typo: Changalwa) contributes to the growing jurisprudential shift from formal contractualism to substantive fairness in Kenyan labour law. It builds upon earlier rulings recognising legitimate expectation as a shield against arbitrary employment decisions.

The case underscores the courts’ willingness to scrutinise the substance of employment relationships—not merely their contractual labels—and to enforce fairness consistent with the Constitution’s transformative ethos.

By extending administrative law principles into employment relations, the court affirms that employment, as a social and constitutional relationship, cannot be governed solely by rigid contract law doctrines.

7. Conclusion

Changalwa v Unga Limited reaffirms that fairness in employment extends beyond the written contract to the conduct and expectations arising from a long-standing employment relationship. It represents a commitment to equity, good faith, and respect for employees’ constitutional rights to fair labour practices.

For employers, it serves as a cautionary precedent: repeated renewals and inclusion of fixed-term employees in permanent benefit schemes may blur the line between fixed and permanent employment—creating enforceable legitimate expectations and potential liability for unfair labour practices.

Key Authorities:

• Registered Trustees of the Presbyterian Church of East Africa & Another v Ruth Gathoni Ngotho-Kariuki [2017] eKLR
• Transparency International Kenya v Sheila M. M’Mbijjewe & 2 Others [2022] eKLR
• Elizabeth Washeke & Others v Airtel Networks (K) Ltd [2013] eKLR

Disclaimer: This article is for informational purposes only and does not constitute legal advice.

Impartiality as a Component of Procedural Fairness: The Case of Mabonga v Agricultural Finance Corporation [2025] KEELRC 2851 (KLR)

Case Commentary: Mabonga v Agricultural Finance Corporation [2025] KEELRC 2851 (KLR)

1. Introduction

The decision in Mabonga v Agricultural Finance Corporation adds important judicial clarity to the doctrine of procedural fairness within Kenyan employment law. The court reaffirmed that disciplinary proceedings must not only be substantively justified but must also meet the threshold of impartiality and fairness as required under the Employment Act, 2007.

2. Factual Background

The claimant, an employee of the Agricultural Finance Corporation (AFC), was dismissed on allegations of negligence and misconduct. During the internal process, it emerged that one of the panel members who sat in the disciplinary hearing had earlier been directly involved in the investigations—specifically, by extracting data from the claimant’s computer and compiling evidence against him.

Despite the presence of substantive grounds for dismissal, the claimant challenged the fairness of the process, asserting that the participation of an investigator in the disciplinary panel compromised the neutrality of the hearing.

3. The Court’s Holding

The Employment and Labour Relations Court held that the disciplinary process was procedurally tainted. The court reasoned that an individual who investigates alleged misconduct cannot simultaneously sit in judgment over the same matter. This dual role erodes the impartiality required in disciplinary proceedings and undermines the employee’s right to a fair hearing under Section 41 of the Employment Act and Article 47 of the Constitution of Kenya, 2010.

Although the court accepted that the employer had valid and justifiable reasons for terminating the claimant, it concluded that the process was procedurally unfair due to the conflict of interest arising from the panel’s composition.

4. Legal Analysis

(a) Impartiality as a Component of Procedural Fairness

The ruling underscores that fair hearing principles in employment law extend beyond merely giving an employee an opportunity to respond. They also encompass the neutrality of the decision-maker. The presence of an investigator on the disciplinary panel introduces bias—or at least the perception of it—which is enough to vitiate the fairness of the process.

This principle echoes the natural justice maxim nemo judex in causa sua (no one should be a judge in their own cause). The court’s reasoning aligns with both administrative law standards and labour jurisprudence, which emphasize that impartiality is not optional but intrinsic to due process.

(b) Substantive vs. Procedural Fairness

The decision draws a clear line between substantive justification (valid reasons for dismissal under Section 43) and procedural propriety (fair process under Section 41). Even when the employer can demonstrate genuine misconduct or negligence, failure to ensure an impartial process renders the termination unfair under Section 45(2).

This approach maintains consistency with precedents such as Walter Ogal Anuro v Teachers Service Commission [2013] eKLR and Loice Otieno v Kenya Commercial Bank Ltd [2013] eKLR, where courts held that a fair process is an independent requirement from the validity of reasons.

(c) Institutional Implications for Employers

Employers are reminded that disciplinary architecture must reflect the principle of separation of roles:

• Investigators gather facts and evidence.
• Disciplinary panels assess evidence and determine culpability.
• Appeal panels, if any, provide independent review.

Mixing these roles compromises procedural integrity and exposes the employer to liability even where the underlying misconduct is proven.

5. Broader Implications

This ruling reinforces the trajectory of Kenyan labour jurisprudence toward strengthening procedural safeguards in the workplace. It also serves as a caution to HR departments and disciplinary committees to adhere to the rule against bias and to document distinct stages of investigation and adjudication.

Moreover, the judgment resonates with comparative principles found in international labour standards, particularly ILO Convention No. 158 (Article 7), which stresses the right to a fair and impartial hearing before termination.

6. Conclusion

Mabonga v Agricultural Finance Corporation is a timely reaffirmation that justice in employment relations must not only be done but be seen to be done. Even where misconduct is substantiated, a flawed procedure—especially one tainted by bias—renders a termination legally untenable.

The case stands as a strong precedent for ensuring impartiality, transparency, and procedural fairness in disciplinary processes across both public and private sector employment in Kenya.

 

Disclaimer: This article is for informational purposes only and does not constitute legal advice.

 

Filing a Suit to Recover an Unpaid Loan in Kenya

Filing a suit to recover an unpaid loan in Kenya involves several procedural and substantive steps governed by the Civil Procedure Act (Cap 21), the Civil Procedure Rules, 2010, and relevant contractual laws. Below is a structured outline of the process.

1. Establishing the Legal Basis of the Claim

Before filing a suit, ensure that:

• There is a valid loan agreement (written or oral, though written is easier to prove).
• The amount owed is certain and ascertainable.
• There has been a default in repayment.
• You have made a formal demand for payment (usually via a demand letter).

Supporting documents may include:

• Loan agreement or acknowledgment of debt.
• Bank or mobile money statements.
• Correspondence showing reminders and default.
• Promissory notes or cheques, if any.

2. Sending a Demand Letter

Before instituting a suit, your advocate (or you, if self-represented) should issue a demand letter to the borrower.

• The letter formally demands repayment within a specified period (typically 7–14 days).
• It should warn that failure to comply will lead to legal proceedings.

Purpose:
To demonstrate good faith and give the debtor a fair chance to settle before litigation. It also serves as evidence of compliance with the pre-action protocol recognized by Kenyan courts.

3. Choosing the Appropriate Court

The choice of court depends on the monetary jurisdiction (pecuniary limits):

Court	Monetary Jurisdiction (Approx.)
Small Claims Court	Up to KSh 1,000,000
Magistrates’ Court	Up to KSh 20,000,000 (depending on rank of magistrate)
High Court	Above KSh 20,000,000

(Always confirm the latest limits through Gazette Notices or court updates.)

Also consider territorial jurisdiction — typically where the defendant resides, carries on business, or where the transaction occurred (see Section 15 of the Civil Procedure Act).

4. Drafting and Filing the Plaint

A plaint initiates the civil suit. It must include:

• The name of the court.
• Particulars of the parties (plaintiff and defendant).
• The cause of action — facts establishing the existence of the loan and default.
• The amount claimed and any applicable interest.
• The prayer or relief sought (e.g., payment of KSh X, interest, and costs).

Attach supporting documents, such as:

• Loan agreement or proof of the loan.
• Demand letter and evidence of delivery.
• Any other relevant documents.

Additional documents filed with the plaint:

• Verifying affidavit.
• List of documents.
• List of witnesses.
• Witness statements.
• Statement of the plaintiff.

Filing is conducted electronically via the Kenya Judiciary e-filing system: https://efiling.court.go.ke.

5. Service of Summons

Once filed, the court issues summons to enter appearance, which must be personally served on the defendant in accordance with Order 5 of the Civil Procedure Rules.

The defendant has 14 days from the date of service to:

• Enter appearance (indicating intention to defend), and
• File a defence (within 14 days after entering appearance).

6. Default Judgment (If No Defence Is Filed)

If the defendant fails to respond within the prescribed time:

• The plaintiff may apply for a default judgment under Order 10 of the Civil Procedure Rules.
• For a liquidated claim (a fixed sum), the court may enter judgment immediately.

7. Hearing and Determination (If Defended)

If the defendant files a defence:

• The matter proceeds to pre-trial directions and then to hearing.
• Both parties present evidence and call witnesses.
• The court then delivers its judgment based on the evidence presented.

8. Enforcement of Judgment

If judgment is entered in your favour but the debtor still fails to pay, you may enforce it through:

• Warrants of attachment and sale (executed by a licensed auctioneer).
• Garnishee proceedings (to recover funds from the debtor’s bank or employer).
• Committal to civil jail (only after due process and as a last resort).
• Charging orders or other execution against property.

9. Recovery of Costs and Interest

The court may award:

• Interest — as per the loan agreement or at the court’s discretion (typically 12% p.a.).
• Costs of the suit, including filing fees, legal fees, and disbursements.

10. Alternative Dispute Resolution (Optional)

Before or during proceedings, parties may opt for settlement through:

• Negotiation or mediation, as encouraged under Article 159 of the Constitution.
• The court may also refer the matter to court-annexed mediation prior to hearing.

 

Summary Table

Step	Action
1	Gather and verify loan evidence
2	Send a formal demand letter
3	Determine the appropriate court
4	File the plaint and supporting documents
5	Serve summons on the defendant
6	Seek default judgment (if undefended)
7	Proceed to hearing (if defended)
8	Enforce the court’s judgment
9	Recover interest and legal costs

 

Insurers need not charge or remit VAT on proceeds from salvage sales - The Case of Commissioner of Domestic Taxes v ICEA Lion General Insurance Company Limited

Full Case: Commissioner of Domestic Taxes v ICEA Lion General Insurance Company Limited
Income Tax Appeal E105 of 2023 [2025] KEHC 14865 (KLR)

Brief Facts:

ICEA Lion General Insurance Company Limited (“the Respondent”) is a general insurance company licensed under the Insurance Act, Cap 487, Laws of Kenya.
When an insured motor vehicle or motorcycle is involved in an accident and declared a total loss, the insurer indemnifies the insured by paying compensation equivalent to the insured value.

Upon such settlement, ownership of the wreck (salvage) transfers to the insurer by operation of law — under the doctrine of subrogation — or through express policy terms. The insurer subsequently disposes of the salvage through sale to recover part of the claim cost.

The Commissioner of Domestic Taxes (KRA) issued VAT assessments on these salvage sales, arguing that the disposals constituted taxable supplies of goods under the Value Added Tax Act, 2013. ICEA Lion objected, maintaining that such disposals form part of the insurance service, which is VAT-exempt under the First Schedule, Part II, Paragraph 1 of the VAT Act.

The Tax Appeals Tribunal (TAT) ruled in favour of the insurer. KRA appealed to the High Court.

Issues for Determination:

1. Whether the sale of salvage vehicles by an insurance company constitutes a taxable supply of goods under the Value Added Tax Act, 2013.
2. Whether such disposal forms part of the insurer’s exempt insurance service under the VAT Act.

Court’s Holding:

The High Court dismissed the appeal, upholding the Tribunal’s finding that VAT is not chargeable on the sale of salvage vehicles by insurance companies.

Court’s Reasoning:

• The court held that the sale of salvage is incidental and ancillary to the insurance company’s core business of providing indemnity to policyholders.
• Upon settlement of a total loss claim, the insurer acquires the salvage not as a trader in goods, but as part of the indemnification process.
• The subsequent sale of the salvage serves merely to mitigate the insurer’s loss — it is not a distinct or independent commercial activity for profit.
• Under Paragraph 1, Part II, First Schedule to the VAT Act, 2013, insurance and reinsurance services are expressly exempt from VAT. The court found that this exemption extends to activities inherently connected to the insurance service.
• Taxing the disposal of salvage would, therefore, amount to taxing part of the indemnification process, which contradicts the legislative intent of the VAT exemptions for insurance services.

Ratio Decidendi (Legal Principle):

The disposal of salvage vehicles by an insurance company following indemnification of a total loss is not a taxable supply under the VAT Act. Such disposal is ancillary to insurance services, which are expressly VAT-exempt under Part II of the First Schedule to the Value Added Tax Act, 2013.

Significance of the Decision:

• Establishes that insurers need not charge or remit VAT on proceeds from salvage sales.
• Affirms the principle that activities integral to or arising from the provision of insurance cover remain VAT-exempt, even if they generate monetary value.
• Provides clarity and tax certainty to the insurance industry, preventing double taxation or misclassification of insurance-related recoveries.

Commentary and Practical Implications:

1. For Insurance Companies:

• This decision offers welcome certainty in tax treatment of salvage recoveries. Insurers can confidently exclude salvage proceeds from VAT computation and reporting.
• It reinforces that VAT exemption applies not only to the insurance premium itself but also to transactions incidental to claim settlement.
• Insurers, however, must ensure proper documentation to demonstrate that such salvage arises strictly from indemnified claims and not from independent commercial trading in vehicles.

2. For the Kenya Revenue Authority (KRA):

• The ruling narrows KRA’s scope of assessment regarding VAT in the insurance sector.
• KRA must respect the distinction between commercial sales of goods and recoveries linked to indemnification.
• The decision emphasizes the need for tax authorities to interpret exemptions in light of the economic substance of transactions rather than their form.

3. For Policyholders and the Market:

• The decision supports stability in the insurance market by preventing unnecessary tax burdens that might otherwise be passed on to policyholders through higher premiums.
• It ensures that claim settlement remains efficient, as insurers can dispose of salvage without complex VAT compliance requirements.

4. Broader Legal Implication:

• The case strengthens jurisprudence on the scope of VAT exemptions under Kenyan law, confirming that ancillary or consequential acts forming part of an exempt service retain the exemption.
• It aligns with international VAT principles under OECD guidelines, which also recognize the “incidental to the main supply” doctrine.

Conclusion:

The High Court’s decision in Commissioner of Domestic Taxes v ICEA Lion General Insurance Company Limited affirms that the sale of salvage by insurers is not a taxable supply, but an activity incidental to VAT-exempt insurance services. This ruling provides much-needed clarity for insurers and ensures consistent application of VAT law within Kenya’s insurance sector.

Commentary on Family and Succession Law in Kenya: Statutory Framework, Judicial Interpretation, and Emerging Trends

1. Introduction

Family and Succession Law occupies a central position within Kenya’s legal system. It governs personal and property relations within the family unit — encompassing marriage, divorce, maintenance, custody of children, and the devolution of property upon death. The area is anchored in Kenya’s Constitution of 2010, which emphasizes equality, human dignity, and protection of the family as the fundamental unit of society (Article 45).

The legal regime is not only statutory but also constitutional and, in some instances, customary and religious. Historically, Kenya operated under plural systems of family law derived from English common law, African customary law, Islamic law, and Hindu personal law. The Marriage Act, 2014, the Matrimonial Property Act, 2013, and the Law of Succession Act (Cap 160) were enacted to harmonize these systems and promote legal uniformity.

2. The Law of Succession Act (Cap 160): The Cornerstone of Succession Jurisprudence

The Law of Succession Act, enacted in 1981, remains the principal legislation governing the devolution of property after death in Kenya. It applies universally to all persons domiciled in Kenya at the time of death, except where the deceased professed the Islamic faith, in which case Sharia law applies (s. 2(3)).

2.1 Testate Succession

Under sections 5–11, any person of sound mind may make a will to determine how their estate shall devolve upon death. A valid will must be made voluntarily and duly executed in accordance with section 11. The process of implementing a will involves obtaining a Grant of Probate, which confirms the executor’s authority to administer the estate.

The courts have consistently emphasized testamentary freedom while upholding statutory protections for dependants. In In re Estate of Solomon Ngatia Kariuki (Deceased) [2013] eKLR, the High Court reaffirmed that a will cannot completely disinherit a dependant who was maintained by the deceased; such a person may apply for reasonable provision under section 26 of the Act.

2.2 Intestate Succession

Intestate succession arises where a person dies without a valid will. The applicable rules are set out under Part V (sections 32–42). The Act classifies beneficiaries hierarchically — beginning with the surviving spouse and children, followed by parents, siblings, and other relatives.

For instance, under section 35, where a deceased leaves a surviving spouse and children, the spouse acquires a life interest in the estate, which determines upon remarriage or death, whereupon the property passes absolutely to the children. The principle of equitable distribution was affirmed in Rono v Rono & Another [2005] eKLR, where the Court of Appeal held that while equality is desirable, equity — based on the needs and circumstances of each beneficiary — should guide the court.

3. Marriage and Matrimonial Property: Equality and Autonomy under the 2010 Constitution

The Marriage Act, 2014 unified diverse marriage systems into a single statutory framework. Section 6 recognizes five types of marriage: Christian, civil, customary, Hindu, and Islamic. The Act underscores that marriage is a voluntary union between a man and a woman, entered into with free consent (s. 3(1)).

3.1 Dissolution of Marriage

The Act provides distinct procedures for dissolution depending on the form of marriage. For example, Christian and civil marriages may be dissolved on grounds of adultery, cruelty, desertion, or irretrievable breakdown (ss. 65–70). The courts exercise discretion to ensure fairness, especially where children and property are involved.

3.2 Matrimonial Property and Gender Equality

The Matrimonial Property Act, 2013 complements the Marriage Act by defining matrimonial property (s. 6) and establishing principles of ownership (s. 7). It provides that property acquired during marriage vests in both spouses according to their contribution, whether direct (financial) or indirect (non-financial).

In Echaria v Echaria [2007] eKLR, the Court of Appeal initially adopted a restrictive view, requiring proof of monetary contribution. However, post-2010 jurisprudence — guided by Article 45(3) of the Constitution — has broadened the concept of contribution to include domestic work, childcare, and emotional support. This approach was reaffirmed in P.N.N v Z.W.N [2017] eKLR, where the court recognized homemaking as a substantial contribution warranting equal property rights.

The evolving interpretation reflects Kenya’s constitutional commitment to substantive gender equality and the equal dignity of spouses during and after marriage.

4. The Children Act, 2001 (Revised 2022): Upholding the Best Interests of the Child

The Children Act operationalizes the rights of the child under Article 53 of the Constitution, which guarantees every child the right to parental care, education, and protection from abuse or neglect. The 2022 revision strengthened provisions on adoption, guardianship, and child welfare in line with international instruments such as the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC).

4.1 Parental Responsibility and Custody

Sections 23 and 24 of the Act impose joint parental responsibility on both parents, regardless of marital status. Custody decisions are guided by the best interests of the child (s. 83). In J.O v S.A.O [2016] eKLR, the court emphasized that the welfare of the child overrides parental conflict, and custody should be awarded to the parent most capable of meeting the child’s needs.

4.2 Maintenance and Guardianship

Parents and guardians are legally obligated to provide maintenance under section 94. The Act also introduces clear procedures for guardianship orders, ensuring continuity of care in the event of parental incapacity or death.

5. Administration of Estates: Probate, Letters of Administration, and Judicial Supervision

The probate and administration process ensures that a deceased person’s property is lawfully distributed to rightful beneficiaries.

5.1 Probate and Letters of Administration

Where there is a valid will, executors apply for a Grant of Probate; where there is no will, administrators seek Letters of Administration Intestate under section 54. The court, upon verifying the petition, issues the grant, which must later be confirmed (s. 71) before distribution.

In In re Estate of L.N.W (Deceased) [2016] eKLR, the High Court underscored the importance of transparency and procedural fairness in the confirmation process, holding that all beneficiaries must be notified and heard.

5.2 Role of the Family Division of the High Court

The Family Division of the High Court, established under Article 165(3) of the Constitution and the Judicature Act, has jurisdiction to handle succession disputes, adoption applications, and matrimonial property cases. It also supervises subordinate courts in matters of limited monetary or geographical jurisdiction.

6. Dependant’s Relief and Equitable Distribution

A hallmark of Kenya’s succession regime is the protection of dependants. Under section 26 of the Law of Succession Act, any person maintained by the deceased who has not been adequately provided for may apply for reasonable provision from the estate.

In In re Estate of Solomon Ngatia Kariuki (Deceased) [2013] eKLR, the court affirmed that dependency is a question of fact and that the law intends to prevent hardship to those who relied on the deceased during their lifetime. This principle aligns with the constitutional value of human dignity (Article 28) and the duty to protect vulnerable family members.

7. Emerging Trends and Constitutional Dimensions

Kenya’s 2010 Constitution has profoundly reshaped the interpretation of Family and Succession Law. Courts increasingly apply constitutional values to ensure that family relations are governed by equality, fairness, and social justice.

7.1 Equality and Non-Discrimination

Article 27 prohibits discrimination on grounds of gender, marital status, or culture. Consequently, courts have struck down discriminatory customary practices that disadvantage women and children. In Rono v Rono (supra), the Court of Appeal held that daughters have equal inheritance rights with sons, a principle now firmly entrenched in law.

7.2 Recognition of Non-Monetary Contribution

Recent jurisprudence acknowledges unpaid domestic labour as a form of contribution to matrimonial property, consistent with global trends in gender justice.

7.3 Intersection with Customary and Religious Law

Although statutory law prevails, customary law continues to influence succession — particularly in rural areas and among certain communities. The courts balance these customs with constitutional standards, ensuring that traditional practices conform to the Bill of Rights (Article 2(4)).

8. Conclusion

Family and Succession Law in Kenya represents a synthesis of statutory precision, constitutional vision, and judicial innovation. The combined effect of the Law of Succession Act, the Marriage Act, the Matrimonial Property Act, and the Children Act is a coherent framework that upholds both individual rights and family solidarity.

However, persistent challenges — such as delays in succession proceedings, patriarchal resistance to gender equality, and limited public awareness — continue to impede full realization of these rights. Future reforms should focus on procedural efficiency, access to justice, and integration of customary law within the constitutional order.

Ultimately, Kenya’s Family and Succession Law exemplifies the legal system’s evolving attempt to balance personal autonomy with family responsibility, ensuring that justice within the family remains both accessible and equitable.

Select Bibliography

• Constitution of Kenya, 2010.
• Law of Succession Act (Cap 160, Laws of Kenya).
• Marriage Act, No. 4 of 2014.
• Matrimonial Property Act, No. 49 of 2013.
• Children Act, No. 8 of 2001 (Revised 2022).
• Echaria v Echaria [2007] eKLR.
• Rono v Rono & Another [2005] eKLR.
• In re Estate of Solomon Ngatia Kariuki (Deceased) [2013] eKLR.
• P.N.N v Z.W.N [2017] eKLR.
• J.O v S.A.O [2016] eKLR.
• In re Estate of L.N.W (Deceased) [2016] eKLR.

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.