Ferrotech Industries Limited v Myombo (Appeal E210 of 2024) [2025] KEELRC 979 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent's employment was unfairly terminated (constructive dismissal) or whether he resigned voluntarily
- 2.Whether the award of 12 months' compensation was justified
- 3.Whether the claims for house allowance, underpayment, leave, overtime, NHIF dues and service pay were proved
Key legal issues
#Whether the resignation letter dated 4 February 2020 amounted to voluntary termination rather than constructive dismissal
The respondent resigned voluntarily for personal reasons; the finding of unfair termination was in error and no notice pay or compensation is due
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.
Whether the respondent was underpaid or entitled to house allowance
No underpayment or house allowance was due; the consolidated gross wage of Ksh.8,327 met the Wage Orders for Other Areas
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.
Whether leave, overtime, NHIF dues and service pay were payable
Leave was encashed, overtime was unparticularised, and service pay was not due as statutory dues were remitted; these claims were correctly dismissed
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.
Legal principles established
#- 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
#- 1.The appeal is allowed with costs
- 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.Costs of the lower court (none were awarded there) shall suffice - no costs in the lower court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#Claim for unpaid overtime
No particulars pleaded of how the overtime accrued
Claim for house allowance beyond the consolidated wage
The gross wage of Ksh.8,327 was consolidated and inclusive of house allowance
Claim for service pay
The respondent was registered with NSSF and statutory dues were not shown to be unremitted
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
#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.
The finding that there was an unlawful and unfair termination of employment was in error. No notice pay or compensation is due.
Constructive dismissal cannot be inferred by the court outside the pleadings before it.
An employee is allowed to terminate their employment for personal reasons.
Issues in the judgment
#The judgment omits the appeal case number and the names of the parties; it refers only to 'the appellant' and 'the respondent'
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.