Wycliffe Lisalitsa v Chief Executive Officer, Kenyatta National Hospital & 5 others [2017] KECA 740 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the appellants were covered by the circulars as support staff entitled to extraneous allowances
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.
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.
Whether non-parties to the negotiated agreement could enforce its benefits
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.
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.
Whether the appellants were discriminated against in the implementation of the circulars
The court found it unnecessary to determine this ground as the first ground alone sufficed to dispose of the appeal.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed with no order as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.