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ELRCDismissedCause No 1566 of 2012· [2014] KEELRC 1142 (KLR)

Wycliffe Lisalitsa v Chief Executive Officer Kenyatta National Hospital & 5 others [2014] KEELRC 1142 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
12 May 2014
4,150 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court dismissed KNH workers' bid for extra allowances because they couldn't prove they were covered by the government circulars or discriminated against.

What this practically means

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Executive summary

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The Claimant, suing on his own behalf and on behalf of workers of Kenyatta National Hospital across various departments and job grades K4 to K13, sought declarations that the respondents' implementation of government circulars dated 19th December 2011 and 12th January 2012 on extraneous allowances was discriminatory, null and void, plus an order compelling payment of the allowances backdated to 1st December 2011, with costs and interest. The circulars arose from a return-to-work formula with the Kenya Medical Practitioners, Pharmacists and Dentists Union after the 2011 doctors' strike. Kenyatta National Hospital implemented the circulars and paid 3,645 employees, but the Claimants were excluded. The 1st and 6th Respondents argued the Claimants were not party to the negotiations and fell outside the circulars' categories; the 2nd to 5th Respondents denied discrimination and noted allowances were structured by a constitutional body. The court framed two issues: whether the Claimants were covered by the 12th January 2012 circular, and whether their exclusion was discriminatory. It held the January 2012 circular merely varied the December 2011 circular by substituting 'support staff' for 'patient attendants', clarified as porters, patient attendants, theatre attendants, cleaners and laundry assistants only, and the Claimants proved no coverage. On discrimination, no comparators doing equal work paid differently were proved. The claim was dismissed with no orders for costs on 12th May 2014.

Key legal issues

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01

Whether the Claimants fell within the categories of employees covered by the circulars of 19th December 2011 and 12th January 2012 for payment of extraneous allowance

Holding

The Claimants were not covered; the January 2012 circular merely varied the December 2011 circular by substituting 'support staff' for 'patient attendants' and clarified support staff to mean porters, patient attendants, theatre attendants, cleaners and laundry assistants only.

Reasoning

The court read the January 2012 circular against the December 2011 circular, which was the originator of the allowance and listed specific categories: medical officers, dentists, pharmacists, clinical officers, nurses, technologists, technicians, mortuary attendants, hospital drivers and patient attendants. The January 2012 circular expressly stated it varied the referenced circulars and did not expand any other category. The clarifying circular of 27th January 2012 restricted 'support staff' to five categories, and the Claimants did not demonstrate they were deployed within them.

p. 12
02

Whether the exclusion of the Claimants from payment of the extraneous allowance was discriminatory contrary to Section 5 of the Employment Act

Holding

No discrimination was proved; the Claimants led no evidence of comparators doing the same work paid differently without justification.

Reasoning

Section 5 of the Employment Act prohibits discrimination on specified grounds and requires equal remuneration for work of equal value, but also permits differentiation based on inherent job requirements and affirmative action. The Claimants produced no evidence of two employees in the same office doing the same job where one was paid and the other excluded, nor of a supervisor earning less than supervised staff. They did not explain the purpose of the allowance and wrongly treated it as a general wage increase.

p. 14

Legal principles established

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  • The 12th January 2012 circular must be read with, and only varied the categories in, the 19th December 2011 circular which originated the allowance; it did not expand any other category.
  • An employee alleging discrimination must demonstrate that two or more persons doing the same work were paid differently without justification such as merit, seniority or length of service.
  • Non-parties to a negotiated agreement cannot claim benefits arising from it.

Court orders

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  1. 1.The claim is dismissed with no orders for costs

Authorities

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Legislation

  • Employment ActSection 5
  • Labour Relations ActSection 57
  • Evidence ActSection 64

Cases cited (5)

  • Kenya Plantation & Agricultural Workers Union V Coffee Research Foundation
    [2014] eKLR
  • VMK V CUEA
    Cause No. 1161 of 2010
  • Lawi Duda & Others V Bamburi Cement Co. Ltd
    [2012] eKLR
  • Kenya Small Scale Farmers Forum & Others V Attorney General
    Petition No. 1174 of 2007
  • Sammy Muhia & Others V Kenya Power and Lighting Company Ltd
    HCC 620 of 2004
Jurisdiction invoked
Original jurisdiction of the Industrial Court under the Industrial Court Act over employment and labour relations disputes (provisions not expressly cited in the judgment)

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 [2014] KEELRC 1142 (KLR)", Case Analysis (2014). Cause No 1566 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1142/eng@2014-05-12

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