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ELRCPartially AllowedPetition dated 2nd December, 2011 filed 5th December, 2011· [2014] KEELRC 352 (KLR)

Dr. Samson Gwer & 5 others v Kenya Medical Research Institute (KEMRI) & 3others [2014] KEELRC 352 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
18 July 2014
MNMathews N. Nduma
6,653 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's employment court found KEMRI discriminated against six Kenyan scientists in favour of researchers with European connections, awarding each Kshs. 5 million in compensation.

What this practically means

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Executive summary

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Six research scientists employed under the KEMRI Wellcome Trust Research Programme petitioned the Industrial Court under Articles 22 and 23 of the Constitution, alleging racial discrimination contrary to Article 27(4), unfair labour practices, unfair administrative action, violation of property rights over their scientific innovations, inhuman and degrading treatment, and denial of access to information. They sought declarations, unconditional reinstatement and compensation. The Union of Research Institute of Kenya joined as an interested party. The 1st Respondent, KEMRI, denied discrimination, contending that the Petitioners refused offers to resume work and study on KEMRI terms, that their contracts had lapsed with full salaries paid, and that no evidence of discrimination was adduced. The court framed three issues: discrimination under Article 27(4); violation of Articles 27(1), 28, 29, 35(1)(b), 40(1), 41 and 47; and entitlement to reinstatement or compensation. Applying the ILO Convention No. 111 definition of discrimination and Section 5 of the Employment Act, the court held that the Wellcome Trust funding criteria requiring a 'relevant connection to the European Economic Area' and the resulting unequal outcomes constituted institutional discrimination which KEMRI, as a state employer, failed to eliminate. It further found arbitrary suspension, recall on inferior terms, failure to attend conciliation and denial of the investigation report violated Articles 41, 47 and 35(1)(b), and that the Petitioners' intellectual property was appropriated contrary to Article 40(1). Reinstatement was refused because the contracts had lapsed with full salaries paid. The court declared the violations proved, awarded each Petitioner Kshs. 5 million in compensation, access to and credit for their research outcomes, certificates of service, interest and costs.

Key legal issues

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01

Racial discrimination under Article 27(4)

Holding

The Petitioners proved on a balance of probability that the 1st Respondent perpetuated institutional discrimination in violation of Article 27 and Section 5(2) of the Employment Act by sustaining funding criteria requiring a relevant connection to the EEA.

Reasoning

The court distinguished discrimination by the state under Article 27(4) from discrimination by any person under Article 27(5), noting the impugned criteria stemmed from a foreign sponsorship programme rather than government policy per se. Adopting the ILO Convention No. 111 definition, the court found the EEA-connection requirement and the differential outcomes in grants, senior positions and pay amounted to institutional racism which the 1st Respondent, as a state employer, failed to eliminate.

p. 13
02

Unfair labour practices and unfair administrative action (Articles 41 and 47)

Holding

The 1st Respondent perpetrated unfair labour practices by arbitrarily suspending the Petitioners for raising grievances and recalling them on changed, ambiguous and inferior terms.

Reasoning

The court found the suspension and recall on vague terms violated Article 41, and that the conduct amounted to unfair administrative action contrary to Article 47. This was exacerbated by the 1st Respondent's failure to attend conciliation under the Minister for Labour, its renunciation of the conciliator's reinstatement recommendation, and denial of access to the investigation report.

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Intellectual property and access to information (Articles 40 and 35)

Holding

The 1st Respondent, as a state employer, was bound not to allow a policy appropriating the Petitioners' intellectual property, and its failure to provide the investigation report violated Article 35(1)(b).

Reasoning

The court accepted that the Petitioners demonstrated misappropriation of their work and scientific innovations by expatriate colleagues contrary to Article 40(1), and that denial of the sub-committee report denied them information essential to prosecuting their case, breaching Article 35(1)(b). Relief included access to research outcomes and credit for them.

p. 13
04

Reinstatement

Holding

Reinstatement was not granted because the contractual relationship had lapsed and salaries had been paid in full to the end of each contract; compensation was awarded instead.

Reasoning

Although the Minister for Labour's conciliator had recommended reinstatement without loss of seniority or benefits, by the time of judgment the short-term contracts had expired and full salaries had been paid. The court therefore compensated each Petitioner with Kshs. 5 million and ordered certificates of service to ease their transition.

p. 10

Legal principles established

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  • A requirement that a scientific researcher employed by KEMRI must have a 'relevant connection to the European Economic Area' is discriminatory against colleagues under the same employment without such connection.
  • Racial discrimination at the workplace perpetuated by an institution for purposes of accessing international funding is unacceptable and not to be tolerated.
  • The ILO Convention No. 111 definition of discrimination applies to Article 27(4) and (5) of the Constitution as read with Section 5(3)(a) and (b) of the Employment Act.

Court orders

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  1. 1.Declaration that the 1st Respondent's conduct amounts to and is discriminatory against the Petitioners under Article 27(4) of the Constitution.
  2. 2.Declaration that the 1st Respondent's conduct, acts and/or omissions are unlawful, illegal and/or unfair and violate Articles 27(1), 28, 29(d) & (f), 35(1)(b), 40(1) and 41(1) & (2) of the Constitution.
  3. 3.Each of the Petitioners awarded compensation of Kshs. 5 million within thirty (30) days of the judgment.
  4. 4.Declaration that the Petitioners are entitled to access all the outcomes of their scientific research and to the credit and benefit attached to the outcomes under Articles 35 and 40 of the Constitution.
  5. 5.Each of the Petitioners entitled to a certificate of service acknowledging their service and scientific outcomes within 30 days from the date of judgment.
  6. 6.The 1st Respondent to pay interest at court rates on the compensation from date of judgment to payment in full.
  7. 7.The 1st Respondent to pay costs of the Petition.

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 10, 22, 23, 259, 27(1), 27(4), 27(5), 28, 29, 30, 35(1)(a) & (b), 40(1), 41(1) & 2(b), 47
  • Employment Act No. 11 of 2007Section 5(2), 5(3)(a) and (b)

Cases cited (6)

  • Dr. Anne Kinya Vs. Nyayo Tea Zone Development Corporation and 3 others
    Industrial Court Cause No. 1065 of 2012
  • Pravin Bowry Vs. Ethics & Anti-corruption Commission
    Cause No. 1168 of 2012
  • Veronica Muthio Kioko Vs. Catholic University of Eastern Africa
    Industrial Cause No. 1161 of 2010
  • Professor Daniel N. Mugendi Vs. Kenyatta University and 3 others
    Civil Appeal No. 6 of 2012
  • Gilbert Mwangi Njuguna Vs. The Attorney General
    Industrial Court Petition No. 17 of 2013
  • Attorney General of Trinidad & Tobago Vs. Ramawop
    Appeal No. 13 of 2004
Jurisdiction invoked
Articles 22 and 23 of the Constitution of Kenya 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Dr. Samson Gwer & 5 others v Kenya Medical Research Institute (KEMRI) & 3others [2014] KEELRC 352 (KLR)", Case Analysis (2014). Petition dated 2nd December, 2011 filed 5th December, 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/352/eng@2014-07-18

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