Stanley Ominde Khainga v Nairobi Hospital [2018] KEELRC 669 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the petitioner, a courtesy staff member with admitting rights, is in an employment relationship with the hospital
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.
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.
Whether the court should interfere with the suspension of the petitioner's admitting rights
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.
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.
Whether allegations of malice and conflict of interest against the respondent's officials were established
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.
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.
Legal principles established
#- 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
#- 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.The costs of the application to be in the cause
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Gathuya v Registered Trustees of Gertrude Garden t/a Gertrude Children’s Home (Cause 1000 of 2017) [2025] KEELRC 585 (KLR)[2025] KEELRC 585 (KLR)27 Feb 2025applied
Cite this brief
#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.