The Scenario: When "She Just Stopped Coming to Work" Is Not the Whole Story
An employee fails to report to work. Days pass. Weeks pass. The employer removes them from the payroll, fills the position, and when sued at the Employment and Labour Relations Court (ELRC), pleads that the employee "deserted duty" or "absconded work." No letter was sent. No hearing was held. No formal termination was issued.
This is one of the most common patterns in Kenyan employment disputes — and one of the most consistently penalised by the courts. The plea of desertion, however straightforward it may appear, carries a significant legal burden that many employers fail to discharge. The result, as the ELRC and its appellate courts have repeatedly held, is a finding of unfair termination and an award of compensation against the employer.
This article sets out the law on desertion of duty in Kenya — what it means, what it requires, and what happens when employers and employees get it wrong.
What Is Desertion of Duty?
Desertion — also referred to as absconding duty or abandonment of employment — is recognised under Section 44(4)(a) of the Employment Act, 2007 as a form of gross misconduct that renders an employee liable to summary dismissal. It is one of the most serious acts an employee can commit, because it involves a unilateral abandonment of the employment relationship.
However, the courts have been careful to define what desertion actually means — and what it does not. The threshold is high and deliberate.
The court affirmed that desertion of duty entails a deliberate and unequivocal intention to permanently sever the employment relationship. Mere absence from work — however prolonged — does not in itself constitute desertion unless that deliberate and permanent intention can be established.
→ The lesson: Absence is a fact. Desertion is a conclusion — and it requires proof of intention, not just proof of non-attendance.
The court reiterated the standard: the employer must demonstrate the employee's intention not to resume work. An employee who communicates with the employer, expresses willingness to return, or whose absence is explained by circumstances outside their control cannot be said to have deserted.
→ The lesson: Where an employee remains in communication or demonstrates readiness to return, the desertion argument collapses entirely.
The Critical Rule: Desertion Does Not Automatically End the Contract
Perhaps the most important — and most misunderstood — principle in this area of law is this: an employee who deserts duty does not terminate their own contract of employment. The employment relationship continues until the employer lawfully brings it to an end.
This principle has been affirmed so consistently across the appellate courts that it now represents settled law in Kenya. The leading exposition comes from the Court of Appeal in the Ayub Kombe Ziro case.
"The law regulating the processing of release from duty of an employee who has absconded duty is now fairly settled. It is not open to the employer to simply plead abandonment of duty by the employee as evidence of termination of the contract. The employer must demonstrate that he has taken reasonable steps to find out the whereabouts of the employee and required him to resume duty to no avail. The employer must where possible demonstrate that he has addressed the matter of the employee's unexplained absenteeism through the available internal disciplinary channels... Desertion being a unilateral act of abandonment of the contract cannot operate to bring a contract of service to a close until the employer acts on it."
→ The lesson: Desertion is a starting point, not an ending point. The employer must still take deliberate legal steps to close the contract.
What the Employer Must Do: The Required Procedure
The courts have developed a clear, consistent procedural framework that employers must follow where an employee is alleged to have deserted duty. This framework draws from Sections 41, 43, and 44 of the Employment Act and has been refined through numerous judicial decisions.
- 1 Upon noticing the employee's absence, make genuine efforts to trace and contact them through all known channels — phone, email, physical address, and emergency contacts. Document every attempt.
- 2 Issue a formal notice requiring the employee to resume duty immediately, warning them that failure to do so may result in disciplinary action including dismissal for unauthorised absenteeism.
- 3 If the employee remains absent or fails to respond, issue a notice to show cause — a formal written document requiring the employee to explain their absence and justify why disciplinary action should not be taken.
- 4 Convene a disciplinary hearing as required under Section 41 of the Employment Act, giving the employee a reasonable opportunity to be heard — in person or in writing.
- 5 If the employee cannot be traced through their known address, submit a copy of the termination notice to the nearest Labour Office under Section 18(5) of the Employment Act.
- 6 Only after completing the above steps may the employer issue a formal letter of termination — specifying the reason (desertion/gross misconduct) and the effective date.
"An employee does not terminate his employment in the event of allegedly abandoning duty. The employer has the legal burden of addressing the lapse. It is not sufficient for the employer to plead abandonment of duty by the employee as evidence of termination of the contract. The employer must demonstrate that reasonable steps were taken to find out the employee's whereabouts and require him to resume duty to no avail... Where the employee cannot be traced through the known address, recourse is to submit the notice terminating employment to the Labour Office under the provisions of Section 18(5) of the Employment Act."
→ The lesson: Even untraceable employees are entitled to due process. The Labour Office mechanism exists precisely for this situation.
"Under Section 44(4)(a) of the Employment Act 2007, absconding duty by an employee constitutes gross misconduct and renders an employee liable for summary dismissal. The Respondent did not demonstrate that it commenced any disciplinary action against the Claimant under Section 41 of the Employment Act after he allegedly failed to report on duty... The Respondent did not demonstrate that it complied with the law as spelt out in Sections 41 and 43(1) of the Employment Act in terminating the Claimant's employment. The termination was, therefore, substantively and procedurally unfair."
→ The lesson: Section 44(4)(a) gives the right to summarily dismiss for desertion — but Section 41 still applies. The two provisions must be read together, not as alternatives.
The Burden of Proof Lies on the Employer
It is not for the employee to disprove that they deserted. The burden falls squarely on the employer — to establish both the fact of desertion and the steps taken to address it. This burden has been affirmed across the appellate jurisprudence.
"The defence of desertion / absconding places a burden on employer to demonstrate efforts made to notify the employee of intention to terminate their services on account of that reason. Case law has firmly established that an employer alleging that an employee has absconded duty is required to show efforts made to reach out to the employee with a view to putting them on notice that termination of their employment on this ground is being considered... No such effort was demonstrated."
→ The lesson: Vague assertions that the employee "just stopped coming" are insufficient. The employer must produce documentary evidence of their efforts — letters, call logs, witness accounts.
"Although the Respondent's witness alluded to having tried to reach the Claimant through telephone calls, no cogent evidence of this attempt was presented to court... Section 41(2) of the Employment Act leaves no doubt in my mind that where an employer pleads desertion as a ground for terminating an employee's employment, such employer must accord the employee a chance to be heard in response to the accusation before closing the contract."
→ The lesson: Oral evidence of attempted contact is insufficient. Documentary proof — letters, emails, registered post — is what the court requires.
When Absence Is Not Desertion: The Constructive Dismissal Trap
A critically important distinction that employers frequently miss — and that employees must understand — is that not all absence from work is desertion. Where an employee's absence is caused or precipitated by the employer's own conduct, what may look like desertion is in law a constructive dismissal.
Constructive dismissal arises where an employer unilaterally changes the fundamental terms of an employee's contract — demoting them, reducing their salary, altering their duties, or creating an intolerable working environment — to such a degree that the employee is effectively forced out. Where an employee refuses to accept unlawful changes to their terms and stays away as a result, they have not deserted. The employer has dismissed them.
"Whether the Claimant is the one who left work on his own or it was because of shortage of raw materials, the Appellant did not make any inquiries to establish why he was not at work and therefore had no evidence that he had absconded work to warrant his replacement."
→ The lesson: Before concluding that an employee has deserted, an employer must investigate the reason for absence. Circumstances beyond the employee's control — or caused by the employer — negate the desertion claim entirely.
What This Means for Each Party
- Do not simply stop attending work without notice, even if your employer has treated you unlawfully
- Write to your employer — express your willingness to return and the conditions you object to
- Keep copies of all communication — your letters, emails, and their responses (or silence)
- If your employer changes your salary, duties, or grade without your consent, seek legal advice immediately — do not sign any document accepting the new terms
- If you are accused of desertion after being constructively dismissed, your communications will be your most powerful evidence
- You have three years from the date of dismissal to file a claim at the ELRC
- Never simply remove an employee from the payroll or fill their position on the assumption they have deserted — this creates significant legal exposure
- Document every effort to contact the absent employee — letters sent to their last known address, registered post, emails, call logs
- Issue a formal notice to show cause before any disciplinary hearing
- Convene a proper disciplinary hearing even in absentia — record that the employee was invited and failed to attend
- Issue a formal termination letter specifying the reason and date
- If the employee cannot be traced, notify the nearest Labour Office
- Never unilaterally change an employee's salary or grade without their written consent — the risk of a constructive dismissal claim is significant
The Consequences of Getting It Wrong
Where an employer fails to follow the required procedure — whether by skipping the notice to show cause, failing to hold a hearing, or simply treating absence as automatic termination — the ELRC will find the termination to be both substantively and procedurally unfair. The consequences are substantial.
- Compensation of up to 12 months' gross salary under Section 49(1)(c) of the Employment Act
- Notice pay — one month's salary in lieu of the notice the employee was denied
- Salary arrears — including any amounts unlawfully withheld during suspension
- Unpaid annual leave pay — all accrued leave days at the date of separation
- Certificate of service — the employee is entitled to one regardless of the circumstances of separation
- Costs of the suit — the losing party typically bears legal costs, although ELRC judges frequently exercise their discretion to order that each party bears their own costs, particularly where the claimant is an employee. This is not always the case, however, and the court may in appropriate circumstances order a losing claimant to meet the employer's costs.
Conclusion: The Law Is Settled — and It Protects Both Sides
The jurisprudence on desertion of duty in Kenya is consistent, current, and firmly established. Across decisions spanning from 2015 to 2026, the Employment and Labour Relations Court and its appellate courts have delivered one clear, unified message: desertion does not end an employment contract. Only the employer can end it — and only by following the law.
For employees, this means that even where you are at fault for being absent without leave, you retain the right to a fair hearing before your employment can be lawfully terminated. For employers, it means that the path of least resistance — ignoring the absent employee and filling the position — is also the most legally expensive path.
If you are an employee who has been accused of desertion — or if you are an employer dealing with an absent employee — Nephine Law Advocates is ready to assist. We advise and represent both sides of the employment relationship, with specialist expertise in ELRC litigation and employment law compliance.