Endmor Steel Millers Limited v Ongwae (Appeal E187 of 2023) [2025] KEELRC 762 (KLR)
The bottom line
#A Kenyan court upheld a steel worker's constructive dismissal award but struck out his leave pay claim because he had no evidence to support it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned magistrate erred in finding constructive dismissal of the respondent
- 2.Whether the respondent was constructively terminated or absconded work of his own volition
- 3.Whether the award of three months' salary as compensation for unlawful termination was justified
- 4.Whether the award of Kshs.34,500 pay in lieu of notice was contrary to the pleadings and evidence
- 5.Whether the respondent was a casual labourer employed only on need basis
- 6.Whether the award of Kshs.241,500 for leave days was supported by evidence
Key legal issues
#Constructive dismissal
The trial court's finding of constructive dismissal was not disturbed on appeal
The respondent relied on Coca Cola v Ligaga and Leena Apparels, which set out the principles of constructive dismissal, including repudiatory breach by the employer, causation, and the burden on the employee. The court found the learned magistrate faulted the appellant's submissions 'to no avail' and methodically assessed the evidence, working history and entitlement to reliefs. The finding of constructive dismissal stood; only the quantum on leave was faulted.
Compensation for leave days
The award of Kshs.241,500 for leave days was overturned for lack of evidence
Although the respondent testified to working leave days, no further evidence was tendered. The court reasoned that one would not ordinarily work continuously for ten years without leave. The award was therefore unsupported and was disallowed, reducing the total award to Kshs.138,000.
Costs in employment disputes
Costs following the event yields to the special nature of employment relations
The court held that in employment disputes, which involve an interplay between labour and capital, immense accommodation inter partes is called for. Costs are not a critical or do-or-die issue, and each party was ordered to bear its own costs of the claim and the appeal.
Legal principles established
#- In constructive dismissal the primary issue is the conduct of the employer, not the employee, absent waiver, estoppel or acquiescence
- A party must tender evidence in support of a head of claim; an unsupported award will be overturned on appeal
Court orders
#- 1.Award of one (1) month salary in lieu of notice of Kshs.34,500.00 upheld
- 2.Award of three (3) months' compensation for unfair termination of Kshs.103,500.00 upheld (total award Kshs.138,000.00)
- 3.Award of Kshs.241,500 for leave days overturned and disallowed
- 4.Each party to bear its own costs of the claim and this appeal
- 5.All other awards set aside
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court
- Jurisdiction invoked
- First appellate jurisdiction of the Employment and Labour Relations Court over appeals from the magistrates' court (Memorandum of Appeal dated 30th September, 2023)
Relief refused
#Award of Kshs.241,500 as compensation for leave days
No evidence was tendered in support of the claim for leave days
Costs against the appellant
Employment matters call for accommodation inter partes; costs are not a critical issue
Costs
Each party shall bear its costs of the claim and this appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The appeal is therefore partially allowed on the following terms and award;
(iii) Each party shall bear its costs of the claim and this appeal.
In the absence of evidence on leave days, I overturn and do disallow the award of Kshs.241,500= by the learned magistrate.
(iv) All other awards crumble and fall by the way side.
an employer is required not to behave in a way that amounts to a repudiatory breach of contract.
Issues in the judgment
#The name of the actual appellant and respondent (and the trial court case number) are not stated in the judgment; only roles appear
Gender pronouns for the respondent are inconsistent within the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Endmor Steel Millers Limited v Ongwae (Appeal E187 of 2023) [2025] KEELRC 762 (KLR)", Case Analysis (2025). ELRC NAIROBI E187 OF 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/762/eng@2025-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.