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ELRCPartially AllowedNot stated in the judgment

Ferrotech Industries Limited v Myombo (Appeal E210 of 2024) [2025] KEELRC 979 (KLR)

Employment and Labour Relations Court
27 March 2025
1,292 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that an employee who resigns citing personal reasons cannot later claim unfair termination without pleading and proving constructive dismissal.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Mombasa against the judgment of 30 September 2024 in Mombasa CMELRC No. E485 of 2022, in which the learned magistrate found constructive dismissal and awarded the respondent 12 months' compensation of Ksh.96,000 plus most heads of his claim, save overtime, house allowance and service pay. The appeal was on the sole ground that the finding of unfair termination and the award of compensation were erroneous. The court, M. Mbarũ J, held on the evidence that the respondent resigned voluntarily by letter dated 4 February 2020 citing personal reasons, which letter was not challenged. Relying on Salihiya Company Limited v Ouma and Ongera v Gianchore Tea Factory Co. Limited, the court held that constructive dismissal must be pleaded and proved with tangible evidence on a balance of probabilities and cannot be inferred outside the pleadings. The claims for house allowance and underpayment failed because the consolidated wage of Ksh.8,327 met the Wage Orders for Other Areas; leave was encashed; the overtime claim lacked particulars; and service pay was not due as statutory dues were remitted with NSSF registration. The court allowed the appeal with costs, set aside the finding of unfair termination and the award of compensation, and confirmed the dismissal of the other heads. No costs were awarded in the lower court and none were directed there.

Questions the Court framed

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

  1. 1.Whether the respondent's employment was unfairly terminated (constructive dismissal) or whether he resigned voluntarily
  2. 2.Whether the award of 12 months' compensation was justified
  3. 3.Whether the claims for house allowance, underpayment, leave, overtime, NHIF dues and service pay were proved

Key legal issues

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01

Whether the resignation letter dated 4 February 2020 amounted to voluntary termination rather than constructive dismissal

Holding

The respondent resigned voluntarily for personal reasons; the finding of unfair termination was in error and no notice pay or compensation is due

Reasoning

The respondent's resignation letter dated 4 February 2020 citing personal reasons was not challenged in authenticity. The concept of constructive dismissal is not addressed under the Employment Act and must be pleaded; it cannot be inferred outside the pleadings. The respondent pleaded no constructive dismissal and adduced no tangible evidence of intolerable conditions, so the claim failed on a balance of probabilities.

p. 3
02

Whether the respondent was underpaid or entitled to house allowance

Holding

No underpayment or house allowance was due; the consolidated gross wage of Ksh.8,327 met the Wage Orders for Other Areas

Reasoning

The fixed-term contracts provided a basic wage of Ksh.7,241 plus house allowance of Ksh.1,086, consolidated at Ksh.8,327, which the respondent admitted. As a general worker in Mazeras, the respondent fell under 'Other Areas' in the Wage Orders, where the January 2020 basic wage was Ksh.7,240, so the wages paid were appropriate and no shortfall arose.

p. 3
03

Whether leave, overtime, NHIF dues and service pay were payable

Holding

Leave was encashed, overtime was unparticularised, and service pay was not due as statutory dues were remitted; these claims were correctly dismissed

Reasoning

The appellant's witness confirmed accrued leave days were encashed under a petty cash voucher dated 4 February 2020 for 4.75 days. The overtime claim lacked particulars of working hours. NHIF dues are payable to a statutory body, not the employee, and with NSSF registration and a KRA PIN requiring returns, service pay did not arise. The trial court was right to dismiss these heads.

p. 4

Legal principles established

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  • An employee may terminate employment for personal reasons; where resignation arises from intolerable conditions, constructive dismissal must be pleaded
  • Constructive dismissal cannot be inferred by the court outside the pleadings
  • An employee claiming constructive or unfair termination must adduce tangible evidence and prove the claim on a balance of probabilities
  • On a first appeal the court reviews the record, re-assesses findings and makes its own conclusions while according deference to the trial court's advantage of hearing witnesses
  • Service pay arises only where the employer fails to remit statutory dues

Court orders

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  1. 1.The appeal is allowed with costs
  2. 2.The finding of unlawful and unfair termination and the award of 12 months' compensation of Ksh.96,000 is set aside; no notice pay or compensation is due
  3. 3.Costs of the lower court (none were awarded there) shall suffice - no costs in the lower court

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Magistrates' Court (CMELRC), Mombasa
Mombasa CMELRC No. E485 of 2022
Jurisdiction invoked
First appeal from the magistrates' court (employment and labour relations) - appellate jurisdiction of the ELRC

Relief refused

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Claim for unpaid overtime

No particulars pleaded of how the overtime accrued

p. 3

Claim for house allowance beyond the consolidated wage

The gross wage of Ksh.8,327 was consolidated and inclusive of house allowance

p. 3

Claim for service pay

The respondent was registered with NSSF and statutory dues were not shown to be unremitted

p. 4

Costs

The appeal is allowed with costs; there were no costs awarded in the lower court and such shall suffice (each side bearing no costs in the lower court).

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

As analyzed above, the award of compensation challenged in this appeal was in error. The appeal is with merit and is hereby allowed with costs. There were no costs awarded in the lower court. Such shall sufice.
p. 4Disposition - appeal allowed with costs
The finding that there was an unlawful and unfair termination of employment was in error. No notice pay or compensation is due.
p. 3Unfair termination finding set aside
Constructive dismissal cannot be inferred by the court outside the pleadings before it.
p. 3Pleading requirement for constructive dismissal
An employee is allowed to terminate their employment for personal reasons.
p. 3Voluntary resignation for personal reasons

Issues in the judgment

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minor

The judgment omits the appeal case number and the names of the parties; it refers only to 'the appellant' and 'the respondent'

minor

Internal inconsistency on the termination date: the background records termination on 30 June 2020 while the respondent testified he was dismissed on 30 March 2020

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ferrotech Industries Limited v Myombo (Appeal E210 of 2024) [2025] KEELRC 979 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/979/eng@2025-03-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.