Kenya Medical Research Institute v Attorney General & 37 others [2015] KEELRC 1620 (KLR)

Relying on Shah Vershi Devji & Co. Ltd v Transport Licencing Board, the Court held 'individual' includes a corporation where the right is capable of corporate enjoyment. The earlier Petition No. 201 of 2010 was withdrawn without determination on merits, so res judicata did not apply. Alleged defects in the affidavit were curable under Article 159(2)(d) of the Constitution.

Following Owners of the Motor Vessel 'Lilian S' v Caltex Oil, where a tribunal makes a factual finding as to antecedent facts going to jurisdiction, a constitutional court will not reverse that finding, as doing so would usurp an appellate function. Whether the Interested Parties had served 13 months was a factual finding. Further, counsel conceded section 45(3) had been declared unconstitutional, so nothing turned on the issue.

The former Industrial Court was a subordinate court amenable to the High Court's supervisory jurisdiction, as held in Kemri's own JR case before Korir J, so judicial review was available. However, the petition was instituted after promulgation of the 2010 Constitution, under which Article 23 permits appropriate relief in Bill of Rights enforcement. The Court deprecates the conduct but declines to disallow the petition solely on that ground.

The Court of Appeal authority in Menginya Salim Murgani establishes that statutory decision-making bodies are masters of their own procedures if they achieve appropriate fairness. The applicable rules empowered the Court to dispense with oral evidence; no objection was raised. The Petitioner's advocate could have objected to cross-examination under section 24(2) of the repealed Industrial Relations Act but chose not to. Participating fully with legal counsel and later complaining of unfairness is untenable.

Citing Odd Jobs v Mubia and subsequent authorities, the law permits a court to base its decision on an issue that appears from the course followed at trial to have been left for decision. It was the Respondent's case that the alleged unpleaded issue of probationary contract was submitted on by the parties and not denied, so the Industrial Court was bound to address it. This does not amount to a constitutional violation.

The Interested Parties contended that reinstatement is provided for under section 49(3)(a) as read with section 50 of the Employment Act, 2007, and the Court had discretion whether to reinstate. The petition pleaded no specifics on how sections 70 and 73 of the former Constitution were violated. The general complaints about procedure and the consequences of the reinstatement award do not disclose infringement of constitutional rights.