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Case Brief · caselaw.co.ke
ELRCPartially AllowedELRC Cause No. E018 of 2024

Peter Sandoko Musalai v Cornerstone Limited

Employment & Labour Relations Court
25 September 2026
3,397 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a driver Kshs 186,453 for unpaid leave and underpayment, but rejected his constructive dismissal claim for lack of evidence.

What this practically means

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Executive summary

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The Claimant, a driver employed allegedly from 2005 until 1st August 2021, sued Cornerstone Limited seeking a declaration that his resignation resulted from the Respondent's failure to address his grievances, terminal benefits of Kshs 990,572 (leave, off days/public holidays and underpayment), costs and interest. The Respondent denied the 2005 start date, asserted voluntary retirement, pleaded partial settlement of Kshs 70,000, and admitted liability only for Kshs 24,572 in underpayment. At trial, the Claimant testified he had no off days and worked holidays for 16 years; the Respondent's Transport Officer conceded that grievance-handling was not his role and that no leave payment records or pay slips were produced. The Respondent argued constructive dismissal was unpleaded, relied on NSSF records to fix employment from 2011, and invoked the non-retrospectivity of the Employment Act 2007. The court held the constructive retirement claim unproved since the Claimant's resignation letter cited no act or omission by the Respondent, and disregarded it. On leave, the Respondent's failure to exhibit any evidence of payment meant the averment of payment failed; the court awarded leave pay for three years prior to retirement (Kshs 91,881). On underpayment, applying the prevailing wage guidelines (Kshs 30,627 against Kshs 28,000 paid), it awarded Kshs 94,572 for three years. Total award: Kshs 186,453 less statutory deductions, plus costs and interest at court rates from the date of judgment. Claims for off days/public holidays and the declaration on constructive dismissal effectively failed.

Questions the Court framed

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

  1. 1.Whether the Claimant's resignation amounted to constructive dismissal/constructive retirement attributable to the Respondent
  2. 2.Whether the Claimant is entitled to payment for leave not taken
  3. 3.Whether the Claimant is entitled to payment for off days and public holidays worked
  4. 4.Whether the Claimant was underpaid contrary to the applicable Wage Order
  5. 5.From what date employment commenced (2005 as claimed or 2010/2011 as alleged by the Respondent)

Key legal issues

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01

Constructive dismissal

Holding

Claim fails; the Claimant voluntarily retired by letter dated 1/8/21 without citing any act or omission by the Respondent

Reasoning

The court found the Claimant wrote a letter giving notice of intended retirement and never cited any act or omission by the Respondent as cause. The constructive dismissal/retirement averment was therefore unproved and disregarded.

p. 18
02

Leave not taken

Holding

Claimant entitled to leave pay for 3 years prior to retirement, computed at 3 x 30,627 = Kshs 91,881/-

Reasoning

The Respondent asserted leave was always taken and paid but exhibited no evidence of payment and no pay slips were produced. The averment of payment was therefore without proof, and the court limited the award to the three years prior to retirement.

p. 19
03

Underpayment

Holding

Claimant entitled to underpayment of 2,627 x 12 x 3 = Kshs 94,572/- for the last 3 years, being the difference between Kshs 28,000 paid and the applicable Kshs 30,627 wage

Reasoning

The court accepted that the Claimant was paid Kshs 28,000 per month against an applicable wage of Kshs 30,627 per the prevailing wage guidelines, and awarded the differential for the last three years of employment only.

p. 19

Legal principles established

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  • An averment of constructive dismissal must be proved by evidence of the employer's conduct causing the resignation; a bare resignation letter without cited grievances will not suffice
  • An employer alleging that leave pay was made must exhibit evidence of such payment; absent pay slips or records, the claim for leave not taken succeeds

Court orders

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  1. 1.The claim for constructive dismissal/retirement is dismissed/disregarded
  2. 2.The Respondent to pay the Claimant Kshs 186,453/- less statutory deductions, being leave pay of Kshs 91,881/- and underpayment of Kshs 94,572/-
  3. 3.The Respondent to pay costs of the suit
  4. 4.Interest at court rates with effect from the date of the judgment

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and labour relations dispute under Article 162(2)(a) jurisdiction of the ELRC (not expressly cited in the judgment)

Relief refused

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Declaration that the resignation was a direct result of the Respondent's failure to address grievances (constructive dismissal)

No evidence that the retirement was attributable to any act or omission of the Respondent; the Claimant gave notice of intended retirement without citing any grievance

p. 18

Payment for off days and public holidays worked

Not awarded in the final orders; the court awarded only leave pay and underpayment

p. 19

Costs

The respondent will pay costs of this suit plus interest at court rates with effect from the date of this judgment.

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.

The averment that he was constructively retired is therefore found without proof and is disregarded.
p. 18constructive dismissal
No evidence of such payment was exhibited by the respondents nor was any pay slip of the claimant available before court.
p. 19burden of proof on leave payment
I will therefore award claimant total kshs 186,453/- less statutory deductions. The respondent will pay cots of this suit plus interest at court rates with effect from the date of this judgment.
p. 19final orders and disposition

Issues in the judgment

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minor

Judgment dated 2026 but claimant's documents dated 6th June 2026

minor

RW1 witness statement dated 24th November 2025, after the 2024 filing

minor

Defence pleads employment in July 2010 but submissions plead January 2011

minor

Typographical errors in the disposition ('cots' for costs)

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, "Peter Sandoko Musalai v Cornerstone Limited", Case Analysis (2026). ELRC Cause No. E018 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2595/eng@2026-09-25

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