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Court of AppealDismissedCivil Appeal No. 53 of 2015· [2017] KECA 740 (KLR)

Wycliffe Lisalitsa v Chief Executive Officer, Kenyatta National Hospital & 5 others [2017] KECA 740 (KLR)

Court of Appeal of Kenya
3 March 2017
3,594 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal ruled that Kenyatta National Hospital support staff could not claim allowances reserved for workers named in a negotiated agreement they were not part of.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nairobi (Asike-Makhandia, W. Ouko and K. M'inoti, JJ.A.) from the judgment of Maureen Onyango, J of the Industrial Court of Kenya delivered on 12th May 2014 in Industrial Cause No. 1566 of 2012, dismissing a representative claim by close to 1,000 Kenyatta National Hospital support staff seeking declarations that the implementation of three Government circulars on extraneous and emergency call allowances was discriminatory, and payment of the allowances backdated to 18th December 2011. The circulars flowed from a return to work formula negotiated between the Government and the Kenya Medical Practitioners, Pharmacists and Dentists Union after the doctors' strike of December 2011. The appellants, deployed in departments such as engineering, maintenance, laundry, catering, administration, finance and security, were left out of the payment. The Court of Appeal, deciding the appeal on written submissions, held that the 27th January 2012 clarification circular defined support staff as porters, patient attendants, theatre attendants, cleaners and laundry assistants only, so the appellants fell outside the specified categories. Further, the appellants were not members of the negotiating union and were not party to the return to work formula, which amounted to a contract they could neither enforce nor benefit from. Allowing their claim would have invited the court to re-write the contract. The Court found the first ground sufficient to dispose of the appeal and declined to consider the discrimination ground. The appeal was dismissed with no order as to costs, affirming the Industrial Court's decision.

Key legal issues

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01

Whether the appellants were covered by the circulars as support staff entitled to extraneous allowances

Holding

The clarification circular of 27th January 2012 defined support staff as porters, patient attendants, theatre attendants, cleaners and laundry assistants only; the appellants did not fall within any listed category and were not entitled to the allowances.

Reasoning

The return to work formula negotiated between the Government and the Kenya Medical Practitioners, Pharmacists and Dentists Union gave rise to circulars specifying categories of beneficiaries. The 27th January 2012 circular clarified that support staff meant porters, patient attendants, theatre attendants, cleaners and laundry assistants only, issued with the respondents aware of the appellants' grievances. The appellants' departments were deliberately excluded, and payment beyond the specified categories would breach Government Financial Regulations.

p. 9
02

Whether non-parties to the negotiated agreement could enforce its benefits

Holding

The appellants were neither members of the negotiating union nor party to the negotiations; the resulting return to work formula amounted to a contract which they could not enforce or benefit from.

Reasoning

The negotiations between the Government, the Union and COTU resulted in what could easily pass for a contract. The appellants conceded they were not Union members and were not represented in the negotiations. Enforcing the contract's benefits would require the court to re-write it, which is impermissible. Union membership being voluntary, exclusion from the negotiated benefits did not punish them for non-membership.

p. 10
03

Whether the appellants were discriminated against in the implementation of the circulars

Holding

The court found it unnecessary to determine this ground as the first ground alone sufficed to dispose of the appeal.

Reasoning

Having concluded that the appellants were not entitled to the allowances because they were not covered by the circulars and were not party to the underlying agreement, the court declined to consider the discrimination ground, holding the first ground sufficient to dispose of the appeal.

p. 10

Legal principles established

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  • A party cannot enforce a contract to which it was not a party nor reap benefits accruing from it.
  • A court of law cannot re-write a contract between parties; the parties are bound by their terms absent coercion, fraud or undue influence.
  • On a first appeal, the appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, without introducing extraneous matters.

Court orders

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  1. 1.The appeal is dismissed with no order as to costs

Authorities

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Legislation

  • Employment Actsection 5
  • Employment Actsection 5(6)
  • Constitution of KenyaArticle 27

Cases cited (3)

  • Kenya Ports Authority v Kuston (Kenya) Limited
    [2009] 2 EA 212
  • Lawi Duda & Others v Bamburi Cement Co. Ltd
    [2012] eKLR
  • National Bank of Kenya Ltd v Pipeplastic Samkolil (K) Ltd and Another
    [2001] KLR 112
On appeal from
Industrial Court of Kenya at Nairobi
Industrial Cause No. 1566 of 2012
Jurisdiction invoked
First appeal to the Court of Appeal from the Industrial Court of Kenya

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, "Wycliffe Lisalitsa v Chief Executive Officer, Kenyatta National Hospital & 5 others [2017] KECA 740 (KLR)", Case Analysis (2017). Civil Appeal No. 53 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/740/eng@2017-03-03

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