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ELRCAllowedPetition filed 22.10.2018 (Notice of Motion dated 22.10.2018), Employment and Labour Relations Court at Nairobi· [2018] KEELRC 669 (KLR)

Stanley Ominde Khainga v Nairobi Hospital [2018] KEELRC 669 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
8 November 2018
3,963 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a doctor with 'courtesy staff' status was actually an employee, and the Nairobi Hospital couldn't suspend his rights for suing them.

What this practically means

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Executive summary

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The petitioner, a Consultant Plastic & Reconstructive Surgeon with admitting rights at The Nairobi Hospital as a Courtesy Staff Member since 2006, moved the Court by notice of motion dated 22.10.2018 seeking suspension of two letters from the respondent dated 08.10.2018 and 11.10.2018, which suspended his admitting rights with immediate effect. The suspension followed the petitioner's institution of High Court Petition No. 335 of 2018 against the hospital and others concerning the death of a patient, June Wanza Mulupi, who died during surgery. The respondent argued there was a conflict of interest, that the petitioner was not an employee so the Court lacked jurisdiction, and that the petitioner's engagement was suspended temporarily pending the outcome of proceedings before the Medical Practitioners and Dentists Board and the High Court. The Court first held, applying the multiple test from Stanley Mungai Muchai v National Oil Corporation, that the parties were in an employer-employee relationship with a contract of service, as the petitioner worked under the hospital's regulatory control, using its facilities and paid from revenues it collected. On the merits, applying the principles in Geoffrey Mworia v WRMA, the Court found no particulars of the alleged conflict of interest, held the suspension contravened section 46(h) and section 45(2)(b) of the Employment Act, that the earlier warning letter had exhausted disciplinary control rendering the suspension double jeopardy, and that bypassing the Standards Audit & Ethics Committee breached natural justice. Allegations of malice were left for the full hearing. The Court found a prima facie case, irreparable injury and that public interest favoured intervention, and stayed implementation of the suspension pending the petition, with costs in the cause.

Key legal issues

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01

Whether the petitioner, a courtesy staff member with admitting rights, is in an employment relationship with the hospital

Holding

Applying the multiple test, the relationship is one of employer-employee with a contract of service; the word 'consultant' describes the petitioner's qualification, not the relationship.

Reasoning

The petitioner was designated 'courtesy staff member' following an interview, was subject to the hospital's elaborate Rules and Regulations of the Medical Staff and Information Booklet for Doctors, worked under the hospital's regulatory control using the hospital's facilities, and was paid out of revenues collected by the hospital from patients. He did not work for himself or account for his own losses and profits. These elements satisfied the criteria for a contract of service rather than a contract for service.

p. 3
02

Whether the court should interfere with the suspension of the petitioner's admitting rights

Holding

The petitioner established a prima facie case, irreparable injury and that public interest and balance of convenience favoured intervention; the suspension contravened sections 45(2)(b) and 46(h) of the Employment Act and breached natural justice.

Reasoning

The sole reason for suspension was the petitioner naming the hospital in High Court Petition No. 335 of 2018, which the Employment Act forbids absent a foundationless complaint. No particulars of the alleged conflict of interest were shown. The patient's death matter had been settled through a warning letter, rendering further disciplinary action double jeopardy. The suspension bypassed the Standards Audit & Ethics Committee, breaching natural justice, and no internal review mechanism existed, ripening the court's jurisdiction.

p. 4
03

Whether allegations of malice and conflict of interest against the respondent's officials were established

Holding

Mere suspicion was insufficient; the relationship of some officials to the deceased was not denied but their involvement in the suspension decision was not established and requires deeper inquiry at the full hearing.

Reasoning

The respondent did not specifically deny that certain officials were related to the deceased patient, but the petitioner did not establish beyond mere suspicions that those persons were involved in the decision to suspend his admitting rights. That factual question is reserved for determination at the full hearing of the petition.

p. 4

Legal principles established

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  • Whether a relationship amounts to a contract of service or contract for service is an issue both of law and fact but largely one of fact, determined by the multiple test.
  • The court will very sparingly interfere in the employer's entitlement to perform human resource functions; to interfere, the applicant must show constitutional or statutory contravention, breach of agreement, manifest unfairness, or exhaustion/impossibility of internal process.
  • Under section 46(h) of the Employment Act, it is unfair to terminate employment on account of the employee initiating legal proceedings against the employer unless the complaint is irresponsible and without foundation.

Court orders

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  1. 1.Pending the hearing and determination of the petition, there shall be stay of implementation of the decision suspending the petitioner's admitting rights as conveyed in the letter Ref. TNH/ADMIN/CEO/08/10/2018 dated 08.10.2018 and the inter-office memorandum dated 11.10.2018
  2. 2.The costs of the application to be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 23, 27, 41, 47, 50
  • Employment Act, 2007Sections 2, 45(2)(b), 46(h)
  • Industrial Court Act, 2011Section 2
  • Civil Procedure Act, Cap. 21Section 3A
  • Civil Procedure Rules, 2010Order 50 Rule 1

Cases cited (2)

  • Stanley Mungai Muchai – versus- National Oil Corporation of Kenya
    Industrial Court of Kenya at Nairobi Cause No. 447N of 2009
  • Geoffrey Mworia-Versus- Water Resources Management Authority and 2 others
    [2015] eKLR
Jurisdiction invoked
Articles 22, 23, 47 and 50 of the Constitution of Kenya, 2010; section 3A of the Civil Procedure Act, Cap. 21 and Order 50 Rule 1 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Stanley Ominde Khainga v Nairobi Hospital [2018] KEELRC 669 (KLR)", Case Analysis (2018). Petition filed 22.10.2018 (Notice of Motion dated 22.10.2018), Employment and Labour Relations Court at Nairobi. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/669/eng@2018-11-08

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