Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedELRC NAIROBI E187 OF 2023

Endmor Steel Millers Limited v Ongwae (Appeal E187 of 2023) [2025] KEELRC 762 (KLR)

Employment and Labour Relations Court
26 February 2025
1,390 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

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

#
This was a first appeal to the Employment and Labour Relations Court at Nairobi from a magistrates' court judgment in which the respondent (claimant) was found to have been constructively dismissed by the appellant employer and awarded various reliefs, including three months' salary as compensation for unlawful termination, pay in lieu of notice, and Kshs.241,500 for leave days. The appellant's nine-ground memorandum of appeal contended that the respondent deserted employment of his own volition to join Accurate Steel Millers, that no constructive dismissal was proved, and that the respondent was a casual labourer on a daily wage of Kshs.600. The respondent relied on Coca Cola East Africa & Central Africa v Maria Kagal Ligaga and Leena Apparels (EPZ) Limited v Nyevu Juma Ndokolani on the doctrine of constructive dismissal. The court found the appellant's attacks on the magistrate's findings unavailing, noting that the magistrate had scrutinised the respondent's earnings (raised to Kshs.1,150 per day payable weekly), his work history from 2010 to 29th August 2020, and his entitlement to reliefs. However, the court faulted the award of Kshs.241,500 for leave days for want of supporting evidence and disallowed it. On costs, the court held that employment disputes call for accommodation inter partes. The appeal was partially allowed: pay in lieu of notice (Kshs.34,500) and three months' compensation (Kshs.103,500), totalling Kshs.138,000, were upheld; the leave award and all other awards were set aside; and each party was ordered to bear its own costs of the claim and the appeal.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned magistrate erred in finding constructive dismissal of the respondent
  2. 2.Whether the respondent was constructively terminated or absconded work of his own volition
  3. 3.Whether the award of three months' salary as compensation for unlawful termination was justified
  4. 4.Whether the award of Kshs.34,500 pay in lieu of notice was contrary to the pleadings and evidence
  5. 5.Whether the respondent was a casual labourer employed only on need basis
  6. 6.Whether the award of Kshs.241,500 for leave days was supported by evidence

Key legal issues

#
01

Constructive dismissal

Holding

The trial court's finding of constructive dismissal was not disturbed on appeal

Reasoning

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.

p. 4
02

Compensation for leave days

Holding

The award of Kshs.241,500 for leave days was overturned for lack of evidence

Reasoning

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.

p. 5
03

Costs in employment disputes

Holding

Costs following the event yields to the special nature of employment relations

Reasoning

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.

p. 5

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. 1.Award of one (1) month salary in lieu of notice of Kshs.34,500.00 upheld
  2. 2.Award of three (3) months' compensation for unfair termination of Kshs.103,500.00 upheld (total award Kshs.138,000.00)
  3. 3.Award of Kshs.241,500 for leave days overturned and disallowed
  4. 4.Each party to bear its own costs of the claim and this appeal
  5. 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

p. 5

Costs against the appellant

Employment matters call for accommodation inter partes; costs are not a critical issue

p. 5

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;
p. 5disposition
(iii) Each party shall bear its costs of the claim and this appeal.
p. 5costs
In the absence of evidence on leave days, I overturn and do disallow the award of Kshs.241,500= by the learned magistrate.
p. 5evidence and damages
(iv) All other awards crumble and fall by the way side.
p. 6setting aside other awards
an employer is required not to behave in a way that amounts to a repudiatory breach of contract.
p. 4constructive dismissal

Issues in the judgment

#
minor

The name of the actual appellant and respondent (and the trial court case number) are not stated in the judgment; only roles appear

minor

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.