Whether an employer is justified in terminating an employee who has absconded duty: An Analysis of Mumali v Blink Studio Limited [2025] KEELRC 2112 (KLR)

Legal Issue:

Whether an employer is justified in terminating an employee who has absconded duty, and whether procedural safeguards under Section 41 of the Employment Act, 2007 are required in cases of desertion.

Key Facts:

• The Claimant filed a claim for unfair termination.
• The Respondent argued the Claimant had absconded duty without explanation or indication of return.
• After a period of unexplained absence, the Respondent issued a one-month notice of termination.
• The Respondent asserted that the Claimant’s conduct amounted to a repudiation of the employment contract.

Court's Holding:

• The Claimant’s conduct constituted desertion, not mere absenteeism.
• Desertion amounts to repudiation of the employment contract.
• The Respondent’s issuance of a notice of termination was a lawful acceptance of that repudiation.
• Procedural fairness under Section 41 was not strictly required because the employee was unavailable and had abandoned the relationship.
• The termination was fair and lawful.

Legal Principles:

✅ Desertion as Just Cause for Dismissal

• Cited under Section 44(4)(a) of the Employment Act: absence without lawful cause is a ground for summary dismissal.

✅ Repudiation of Contract

• Employee conduct may amount to constructive termination of the employment contract, which the employer can accept through notice of termination.

✅ Procedural Fairness – Section 41

• Where the employee has absconded, it is impracticable to conduct a disciplinary hearing.
• Courts recognize exceptions to procedural safeguards where the employee's own actions render compliance impossible.

Use in Litigation:

For Employer (Respondent):

• Use to support a defence against a claim for unfair termination.
• Argue that the Claimant’s desertion nullified procedural obligations, and the employer acted reasonably and lawfully.
• Cite Mumali as precedent where the court excused procedural compliance due to employee abandonment.

For Employee (Claimant):

• Distinguish the facts: prove intention to return, communication with the employer, or that the absence was lawfully excusable.
• Argue that desertion was not established, or that the employer failed to take reasonable steps to clarify the employee’s intent before termination.

Relevant Authorities:

• Employment Act, 2007, Sections 41 and 44(4)(a)
• Catherine Wanjiru Gachigi v Airtel Networks Kenya Ltd [2013] eKLR
• Ayub Kombe Gwali v Kenya Ports Authority [2016] eKLR

Conclusion:

Mumali v Blink Studio Limited establishes that desertion constitutes a repudiation of the employment contract and that strict procedural compliance is not required where the employee has made themselves unavailable. It reinforces the employer’s right to act where the employment relationship has effectively broken down.