Wycliffe Lisalitsa v Chief Executive Officer Kenyatta National Hospital & 5 others [2014] KEELRC 1142 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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.
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.
Whether the exclusion of the Claimants from payment of the extraneous allowance was discriminatory contrary to Section 5 of the Employment Act
No discrimination was proved; the Claimants led no evidence of comparators doing the same work paid differently without justification.
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.
Legal principles established
#- 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
#- 1.The claim is dismissed with no orders for costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.