Desertion constitutes employee-initiated termination: The case of Mumali v Blink Studio Limited [2025] KEELRC 2112 (KLR)

1. Facts of the Case

The Claimant, Mr. Mumali, was employed by the Respondent, Blink Studio Limited, under a contract of employment governed by the Employment Act, 2007.

At some point during the subsistence of his employment, the Claimant stopped reporting to work and failed to communicate with the Respondent regarding his absence. The Respondent made attempts to reach out to him, but the Claimant did not provide any explanation or indication of his intention to resume duty.

Subsequently, the Respondent issued a one-month notice of termination, citing the Claimant’s absence without leave and lack of communication, which the Respondent considered to be desertion and therefore a breach of contract.

The Claimant later filed a claim at the Employment and Labour Relations Court, alleging that the Respondent had unfairly terminated his employment without following due process as required under Sections 41, 43, and 45 of the Employment Act, 2007.

In defence, the Respondent maintained that the Claimant’s own conduct amounted to repudiation of the contract and that the notice of termination merely formalised acceptance of that repudiation.

2. Issues for Determination

1. Whether the Claimant’s absence from work without communication constituted desertion.
2. Whether the Respondent’s act of issuing a notice of termination amounted to unfair termination under the Employment Act, 2007.
3. Whether the Respondent complied with procedural fairness in the manner of separation.

3. Arguments by the Parties

(a) Claimant’s Position:

• The Claimant argued that the Respondent’s decision to terminate his employment was unfair and unlawful, as it did not comply with the procedural safeguards under the Employment Act.
• He maintained that he was not subjected to a disciplinary hearing as required under Section 41, nor was he given an opportunity to explain his absence.
• He therefore sought compensation for unfair termination, including notice pay and other terminal dues.

(b) Respondent’s Position:

• The Respondent contended that the Claimant had absconded duty and demonstrated no intention to resume work.
• The Respondent further argued that the Claimant’s unexplained absence amounted to desertion, which in law constitutes repudiation of the employment contract by the employee.
• The issuance of a one-month termination notice was thus not a dismissal, but an acceptance of the employee’s repudiatory conduct.

4. Decision / Holding

The Court found in favour of the Respondent and held as follows:

1. Desertion of Duty:
   The Court determined that the Claimant’s conduct — being absent from work for an extended period without communication or intention to return — constituted desertion.
2. Repudiation of Contract:
   The Claimant’s desertion amounted to a repudiation of the employment contract. This meant that by his conduct, the Claimant had effectively brought the contract to an end.
3. Acceptance of Repudiation:
   The Respondent’s issuance of a notice of termination was deemed to be an acceptance of that repudiation, rather than an act of unfair dismissal.
4. Procedural Fairness:
   The Court held that in cases of desertion, the employer’s obligation to conduct a disciplinary hearing is limited, since the employee has already abandoned the employment relationship. Therefore, the procedure adopted by the Respondent was fair and reasonable under the circumstances.

Accordingly, the claim for unfair termination was dismissed.

5. Ratio Decidendi (Legal Reasoning)

• Desertion is defined as an employee’s unexplained absence from duty with no intention to return.
• Such conduct amounts to repudiation of the employment contract, giving the employer the right to treat the contract as terminated.
• The employer’s act of formalising this through a termination notice is not unfair dismissal, but acceptance of repudiation.
• The procedural fairness requirement under Section 41 of the Employment Act is not strictly applicable where the employee has voluntarily deserted employment.

6. Legal Significance / Precedent Value

This decision reinforces the principle that:

• Desertion constitutes employee-initiated termination, and not unfair dismissal by the employer.
• Employers who act reasonably — for example, by documenting efforts to contact a missing employee and issuing a notice of termination — will be found to have acted fairly.
• The case aligns with earlier Kenyan precedents such as:
• Felistas Acheha Ikatwa v Charles Peter Otieno [2018] eKLR
• Seabolo v Belgravia Hotel (2011) (South African reference often cited in Kenya)
  which establish that where an employee abandons employment, the employer’s acceptance of that act is not an unfair termination.

7. Key Takeaway

In Kenyan employment law, when an employee absconds or deserts work without communication, the employer is entitled to treat the employment relationship as repudiated. Issuing a formal termination notice in such cases does not amount to unfair termination, provided the employer’s actions are reasonable and properly documented.

 

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

Legal Commentary: Family and Succession Law in Kenya

1. Overview

In Kenya, Family and Succession Law forms a crucial part of private law that governs family relationships, marriage, children, and the distribution of property upon death. This area of law seeks to balance individual autonomy, family obligations, and societal interests, while ensuring justice and equity within family structures.

Family and succession matters fall under the Family Division of the High Court and, at the subordinate level, under Children’s Courts and Magistrates’ Courts with jurisdiction conferred by the Magistrates’ Courts Act, 2015.

2. Principal Legislation

Kenya’s Family and Succession Law is anchored in several key statutes and supplemented by constitutional provisions and judicial precedents.

(a) The Law of Succession Act (Cap 160, Laws of Kenya)

This is the primary legislation governing inheritance and the administration of estates in Kenya. It applies to all persons domiciled in Kenya at the time of their death, except where customary law or Islamic law is applicable (see section 2(1) and (2) of the Act).

The Act distinguishes between two main types of succession:

1. Testate Succession:
• Occurs when a deceased person leaves behind a valid will that sets out how their estate should be distributed.
• The court issues a Grant of Probate to the executor named in the will, authorizing them to administer the estate.
• A will must meet the formal requirements under sections 5–11 of the Act, including being made voluntarily, by a person of sound mind, and properly witnessed.
2. Intestate Succession:
• Applies when a person dies without a valid will.
• The distribution of their property follows the rules under Part V of the Act.
• The order of priority for inheritance is: surviving spouse(s), children, parents, siblings, and other relatives, as prescribed by sections 35–39.
• The court issues a Grant of Letters of Administration to one or more administrators (usually family members) to manage and distribute the estate.

In both cases, the estate is subject to confirmation by the High Court, which ensures that the distribution accords with the law and protects the interests of dependants and beneficiaries.

(b) The Marriage Act, 2014

This Act harmonized and consolidated various previous marriage laws, recognizing five systems of marriage in Kenya:

• Civil marriages,
• Christian marriages,
• Customary marriages,
• Hindu marriages, and
• Islamic marriages.

Key provisions include:

• Section 3: Defines marriage as the voluntary union of a man and a woman.
• Section 73–80: Provide for dissolution of marriage (divorce) and the grounds for dissolution such as cruelty, adultery, desertion, or irretrievable breakdown.
• Section 93: Deals with matrimonial property, providing that ownership depends on the contributions (monetary or non-monetary) made by each spouse during the marriage.

The Matrimonial Property Act, 2013 complements the Marriage Act by setting out how property is to be divided upon divorce or death. The courts, guided by Article 45(3) of the Constitution, have held that spouses are entitled to equal rights during and after marriage (P.N.N v Z.W.N [2017] eKLR).

(c) The Children Act, 2001 (as revised in 2022)

The Children Act operationalizes the rights of the child guaranteed under Article 53 of the Constitution and the Convention on the Rights of the Child (CRC).

It provides for:

• Parental responsibility (Part III): Both parents have equal rights and duties toward the child, including care, maintenance, and education.
• Custody and maintenance (Part VII): Courts determine custody based on the best interests of the child, as reaffirmed in J.O v S.A.O [2016] eKLR.
• Adoption and guardianship: Procedures for local and international adoptions, and appointment of guardians to manage a child’s welfare and property.
• Children’s Courts: Established under section 73 to handle all children-related matters in a child-friendly manner.

3. Key Aspects of Family and Succession Law

(a) Estate Planning

Estate planning allows an individual to manage and control how their assets will be distributed after death.

• This may include drafting a will, setting up trusts, or joint ownership arrangements.
• The goal is to avoid disputes, reduce legal costs, and ensure that one’s wishes are carried out.

In Kenya, legal practitioners advise clients to ensure that wills are valid under section 11 of the Law of Succession Act and periodically updated to reflect changes in family or property circumstances.

(b) Probate and Administration

This refers to the judicial process by which a deceased person’s estate is validated and managed.

• If there is a valid will, the executor applies for probate.
• If there is no will, a relative applies for letters of administration intestate.
• The court supervises the process to ensure fairness, culminating in the confirmation of the grant (section 71, Law of Succession Act), after which property can be legally transferred to beneficiaries.

(c) Inheritance Disputes

Disputes often arise regarding:

• The validity of a will;
• The inclusion or exclusion of certain beneficiaries; or
• The manner of distribution.

The Family Division of the High Court has jurisdiction to resolve such disputes. Common examples include cases of alleged undue influence, forgery, or disinheritance contrary to the Act.

In In re Estate of L.N.W (Deceased) [2016] eKLR, the Court reiterated that every beneficiary must be given an opportunity to be heard before confirmation of grant, underscoring the principles of fairness and procedural justice.

(d) Dependant’s Provisions

Under section 26 of the Law of Succession Act, any person who was being maintained by the deceased but has not been adequately provided for in the will or under intestacy may apply to court for reasonable provision.

Dependants include spouses, children (legitimate or illegitimate), parents, and any person who was financially dependent on the deceased. The Court has wide discretion to ensure equity, as illustrated in In re Estate of Solomon Ngatia Kariuki (Deceased) [2013] eKLR.

(e) Matrimonial Property

The Matrimonial Property Act, 2013, read together with the Marriage Act, 2014, governs ownership and division of property acquired during marriage.

• Section 7 of the Matrimonial Property Act provides that ownership vests according to the contribution made by each spouse.
• Contribution may be direct (financial) or indirect (domestic work, child care, emotional support, etc.), as affirmed in Echaria v Echaria [2007] eKLR.
• Upon dissolution of marriage or death, the court determines the equitable distribution of matrimonial assets.

4. Conclusion

Family and Succession Law in Kenya is a comprehensive framework designed to regulate personal relationships, protect vulnerable family members, and ensure fair distribution of property upon death.

The combination of constitutional safeguards, statutory provisions, and judicial interpretation ensures that justice, equity, and the best interests of the family remain central to Kenya’s legal system.

Courts continue to interpret these laws in a manner that upholds human dignity, non-discrimination, and gender equality, reflecting the spirit of the Constitution of Kenya, 2010.

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

 

While individual rights under the Constitution are fundamental, they are not absolute and must be balanced against the State’s legitimate interest in ensuring effective revenue collection - The Case of Okiya Omtatah Okoiti v Attorney General & Kenya Revenue Authority [2020] eKLR

Full Case: Okiya Omtatah Okoiti v Attorney General & Kenya Revenue Authority [2020] eKLR, Petition No. 156 of 2017

1. INTRODUCTION

1.1 This brief examines the judgment of the High Court of Kenya delivered on 20th February 2020 in Okiya Omtatah Okoiti v Attorney General & Kenya Revenue Authority [2020] eKLR, Petition No. 156 of 2017, wherein the Court upheld the constitutionality of sections 57, 58(2), 59 and 99 of the Tax Procedures Act, No. 29 of 2015 (hereinafter “the TPA”).

1.2 The petitioner, Mr. Okiya Omtatah Okoiti, had sought a declaration that the said provisions were inconsistent with the Constitution of Kenya, 2010, for allegedly violating the right to privacy (Article 31) and the privilege against self-incrimination (Article 50(2)(l)).

2. ISSUES FOR DETERMINATION

2.1 Whether sections 57, 58(2), 59 and 99 of the Tax Procedures Act infringe upon:
a. The right to privacy under Article 31 of the Constitution; and
b. The privilege against self-incrimination under Article 50(2)(l) of the Constitution.

2.2 Whether the enforcement powers conferred upon the Kenya Revenue Authority (KRA) by the impugned provisions are reasonable and justifiable in an open and democratic society within the meaning of Article 24 of the Constitution.

3. STATUTORY FRAMEWORK

3.1 The Tax Procedures Act, 2015 was enacted to harmonize and consolidate procedural rules relating to the administration of tax laws in Kenya.

3.2 The impugned provisions grant the Commissioner of Domestic Taxes the following powers:

• Section 57: Power to access premises and inspect goods, records, and equipment for tax purposes.
• Section 58(2): Authority to require any person in custody of relevant documents to produce them for inspection.
• Section 59: Power to obtain, extract, or make copies of such documents or information.
• Section 99: Power to seize documents or items necessary for determining tax liability and to penalize non-compliance by a fine not exceeding KShs. 1,000,000, or imprisonment not exceeding three (3) years, or both.

3.3 Under section 6(1) of the TPA, KRA is obligated to maintain the confidentiality of taxpayer information, save for the exceptions enumerated under section 6(2).

4. PETITIONER’S ARGUMENTS

4.1 The Petitioner contended that the impugned provisions unjustifiably infringed the right to privacy and the privilege against self-incrimination.

4.2 It was further argued that KRA had previously exercised these powers in a politically motivated manner, citing the 2017 incident in which KRA allegedly requested Diamond Trust Bank to release the financial information of H.E. Ali Hassan Joho, Governor of Mombasa County.

5. RESPONDENTS’ ARGUMENTS

5.1 The Attorney General and the Kenya Revenue Authority submitted that the provisions were consistent with the Constitution and served a legitimate public purpose — namely, ensuring compliance with tax obligations.

5.2 They further argued that any limitation of rights occasioned by the provisions met the threshold of Article 24(1) of the Constitution as it was reasonable, necessary, and proportionate to the objective of safeguarding national revenue.

6. THE COURT’S ANALYSIS AND FINDINGS

6.1 The High Court dismissed the petition and upheld the constitutionality of sections 57, 58(2), 59, and 99 of the TPA.

6.2 On the right to privacy, the Court held that:

• The enforcement powers under the TPA are specific to tax administration and do not amount to an unjustifiable intrusion into an individual’s private affairs.
• The confidentiality obligation imposed by section 6 of the TPA adequately protects taxpayer information from misuse.

6.3 On the privilege against self-incrimination, the Court reasoned that:

• The right under Article 50(2)(l) does not exempt individuals from fulfilling lawful obligations, including the duty to provide information necessary for tax assessment.
• The privilege cannot be used as a shield to obstruct lawful investigations or conceal non-compliance with tax laws.

6.4 The Court therefore concluded that the use of compulsory powers to obtain information from taxpayers or third parties does not violate the right against self-incrimination.

7. RELATED JURISPRUDENCE

7.1 The Court distinguished this case from Robert K. Ayisi v Kenya Revenue Authority [2018] eKLR, Petition No. 421 of 2016, in which section 59(4) of the TPA was declared unconstitutional for violating advocate–client privilege as protected under section 137 of the Evidence Act (Cap 80, Laws of Kenya).

7.2 The Omtatah decision clarified that the invalidity of section 59(4) was limited to communications between advocates and clients, and did not affect the validity of the broader investigative and enforcement powers under the remaining provisions of the Act.

8. IMPLICATIONS OF THE DECISION

8.1 The judgment affirms that the Kenya Revenue Authority possesses broad statutory powers to obtain information from taxpayers and third parties for purposes of tax enforcement and compliance verification.

8.2 The ruling strengthens the legal foundation for KRA’s investigative mandate but also raises policy concerns regarding potential abuse of these powers for politically motivated or selective enforcement.

8.3 The Court did not conclusively address mechanisms for preventing such misuse, suggesting a need for continued legislative oversight and administrative safeguards to ensure that enforcement actions remain fair, transparent, and non-discriminatory.

9. CONCLUSION

9.1 The decision in Okiya Omtatah Okoiti v Attorney General & Kenya Revenue Authority [2020] eKLR stands as a definitive pronouncement that sections 57, 58(2), 59, and 99 of the Tax Procedures Act, 2015 are constitutional.

9.2 The Court’s reasoning underscores the principle that while individual rights under the Constitution are fundamental, they are not absolute and must be balanced against the State’s legitimate interest in ensuring effective revenue collection.

9.3 Consequently, the Kenya Revenue Authority remains lawfully empowered to invoke its statutory powers under the TPA, subject to adherence to the principles of legality, proportionality, and confidentiality enshrined in the Constitution.