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Court of AppealPartially AllowedCourt of Appeal Civil Appeal (Nairobi)· [2019] KECA 988 (KLR)

Kenya Medical Research Institute v Dr Samson Gwer & 8 others

Court of Appeal of Kenya
8 February 2019
10,005 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~40 min to read original · ~4 min brief

The bottom line

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The Court of Appeal dismissed six doctors' discrimination claims against KEMRI entirely, ruling that unequal pay alone is not discrimination without proof it was based on race.

What this practically means

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Executive summary

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KEMRI appealed against a judgment of the Industrial Court (Nduma, J.) which had allowed a petition by six doctors employed at the KEMRI Wellcome Trust Research Programme, declaring racial discrimination and violations of dignity, labour rights, property and access to information, and awarding each doctor Kshs. 5 million, a certificate of service, and access to research outcomes. The Court of Appeal allowed the appeal in full, setting aside the judgment and decree of 18th July 2014 and substituting an order dismissing the petition in its entirety. First, the court upheld the Industrial Court's jurisdiction: the High Court had jurisdiction when the petition was filed in December 2011 before the Industrial Court was constituted, and KEMRI, having raised and lost the point in a preliminary objection below without appealing, could not re-open it. Second, the learned Judge committed reversible error by completely failing to mention or consider KEMRI's 95-paragraph replying affidavit and its supplementary affidavit, KEMRI's substantive response to the discrimination claims - a gross non-direction and error of principle resulting in misjustice. Third, the Judge decided an unpleaded Article 35 access-to-information claim, impermissibly re-working the doctors' case at judgment stage. Fourth, the doctors failed to prove racial discrimination: differential treatment is not ipso facto discriminatory, and the pay differentials were reasonably explained by expatriates' retained home-institution terms. Dignity and property violations also failed, the employment contracts and section 32(1) of the Industrial Property Act vesting employee inventions in the employer. Finally, the Kshs. 5 million award had no rational basis - no comparable awards, no pleaded amount - and the doctors' losses were largely self-inflicted, having refused recall to work while being paid to the end of their contracts. Each party was ordered to bear its own costs in the appeal and below.

Key legal issues

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01

Jurisdiction of the Industrial Court over the transferred petition

Holding

The High Court had jurisdiction when the petition was filed in December 2011 as the Industrial Court was not yet constituted, and the transfer was proper; in any event KEMRI had raised and lost the point in a preliminary objection below and did not appeal it.

Reasoning

The court adopted its earlier decision in Daniel N. Mugendi v Kenyatta University that matters improperly filed should be transferred to the competent forum rather than defeated. It also held KEMRI was estopped from re-litigating jurisdiction, having raised it in a preliminary objection decided on 3rd May 2013 against which no appeal was lodged.

p. 10
02

Failure to consider KEMRI's replying affidavit

Holding

The Judge's total omission of Margaret Rigoro's 95-paragraph, 210-page replying affidavit and her further supplementary affidavit was a gross non-direction amounting to reversible error.

Reasoning

In an adversarial system, fairness requires that all pleadings and evidence be considered and decided upon with reasons. Deciding on affidavit evidence without analyzing the employer's substantive response gave the impression that one party's entire case was ignored, which cannot constitute a fair trial and compelled appellate interference.

p. 12
03

Discrimination under Article 27

Holding

Mere differential treatment is not ipso facto discriminatory; the doctors failed to prove they were disadvantaged solely on account of race, as pay differentials were explicable by expatriates' retained home-institution terms.

Reasoning

The court applied Article 27(4) and (5), the FIDA decision distinguishing differentiation from discrimination, and Judge Tanaka's relative equality principle. The doctors bore the burden of showing treatment based only on skin colour to their prejudice and of dispelling KEMRI's reasonable explanations, which they did not do.

p. 14
04

Unpleaded claims, including Article 35 access to information

Holding

The Judge erred by finding a violation of Article 35 which was neither pleaded nor particularized, effectively re-working the doctors' case at judgment stage.

Reasoning

Relying on Galaxy Paints and Great Lakes Transport, the court held judges may only decide claims pleaded and supported by evidence; altering the claim at judgment stage makes the judge an active participant in the dispute and denies the other party a fair opportunity to respond.

p. 12
05

Intellectual property rights under Article 40

Holding

No violation established; by clause 13(ii) of the contracts and section 32(1) of the Industrial Property Act, inventions made in execution of employment belong to the employer.

Reasoning

The Judge failed to engage with clause 13(ii) of the employment contracts and the statutory default rule vesting patent rights in the employer. Any qualifications to that rule had to be asserted and proved by the doctors, and remuneration disputes belonged to the Tribunal under the Act.

p. 16
06

Compensation of Kshs. 5 million per doctor

Holding

The award was set aside: the violations were unproved, losses were self-inflicted since the doctors refused recall to work, and the sum lacked any rational basis.

Reasoning

The Judge gave no explanation for the quantum, made no reference to comparable awards, and no amount was pleaded. Section 45 of the Employment Act was not considered. The doctors were paid to the end of their contracts while refusing to work, making further compensation unconscionable.

p. 17

Legal principles established

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  • Not every differential treatment amounts to discrimination; for differential treatment to be unconstitutional it must be based on a prohibited ground under Article 27, and a reasonable explanation independent of a prohibited basis defeats a discrimination claim.
  • Courts decide cases only on claims pleaded and evidence presented in proof of those claims; a judge cannot alter or expand a party's case at judgment stage.
  • A trial court must consider and evaluate the entire case, evidence and arguments of every party appearing before it; failure to consider a party's substantive response is a reversible error of principle.
  • Intellectual property arising in the performance of employment duties belongs to the employer under both contract and section 32(1) of the Industrial Property Act, absent proof of grounds for departing from that rule.
  • Where a court lacking jurisdiction is seised of a matter, the proper course is to transfer it to the court with jurisdiction rather than strike it out.
  • A damages award made without a rational basis or reference to comparable awards will be interfered with on appeal as wrong in principle.

Court orders

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  1. 1.Judgment and decree of the Industrial Court dated 18th July 2014 set aside
  2. 2.Petition dated 2nd December 2011 dismissed in its entirety
  3. 3.Each party to bear its own costs of the appeal and at the court below
On appeal from
Industrial Court of Kenya at Nairobi
Petition dated 2nd December 2011 (transferred from the High Court, filed 5th December 2011)
Jurisdiction invoked
First appeal to the Court of Appeal under Rule 29 of the Court of Appeal Rules, from the Industrial Court established under Article 162(2) of the Constitution

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, "Kenya Medical Research Institute v Dr Samson Gwer & 8 others", Case Analysis (2019). Court of Appeal Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/988/eng@2019-02-08

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