Radar Hardware Limited v Mutune (Appeal E010 of 2025) [2025] KEELRC 2311 (KLR)
The bottom line
#When an employee abandons work in Kenya, the employer must still formally terminate employment through proper legal process or the termination will be unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether there was unfair termination of employment where the employee allegedly absconded
Yes. Even where an employee abandons work, the employer bears a legal duty to summon the employee, issue notice of summary dismissal under section 44, and notify the labour officer under section 18(5)(b).
Section 44 of the Employment Act makes abandonment gross misconduct attracting summary dismissal, but the employer must summon the employee to respond, issue notice of summary dismissal, and report the dismissal to the labour officer within seven days. The employer failed to follow this process, so the lapse in due process rendered the termination unfair, though the employee's own misconduct was relevant to remedies.
Whether the trial court's award of maximum 12 months' compensation was justified
No. The trial court did not justify the maximum award; the appellate court substituted one month's compensation.
Relying on Court of Appeal authority, discretion under section 49 must be exercised on sound judicial principles with reasons. The trial court analysed evidence and found unfair termination but gave no justification for the maximum award, inviting intervention. Given the respondent's gross misconduct in declining to continue employment and the appellant's substantial compliance efforts, one month's compensation was justified.
Whether notice pay was due
Notice pay of one month was due.
Although the appeal succeeded in reducing compensation, the court found that notice pay remained payable because there was no lawful termination with notice; the employer had to formally terminate the relationship.
Legal principles established
#- An employer cannot lawfully plead that the employment relationship subsisted where an employee abandons work; the employer must be proactive and apply sections 44 and 18(5) of the Employment Act to formally terminate employment.
- An employer's discretion to award maximum compensation under section 49 of the Employment Act must be exercised judiciously and with proper justification.
- A court may interfere with a maximum award of 12 months' compensation where no reasons justify it.
Court orders
#- 1.A declaration that employment was terminated unfairly
- 2.Compensation of Ksh.30,266
- 3.Notice pay of Ksh.30,266
- 4.Each party bears its costs of the appeal and trial court
- On appeal from
- Magistrates' Court (ELRC), Mombasa
- Mombasa CMELRC No. E345 of 2023
- Jurisdiction invoked
- Appeal from the trial magistrate's court in employment and labour relations matters
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Radar Hardware Limited v Mutune (Appeal E010 of 2025) [2025] KEELRC 2311 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2311/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.