Nduati & 3 others v Cabinet Secretary Ministry of Health & 9 others [2018] KEELRC 1776 (KLR)

Relying on Article 162(2)(a) and 165(5), and the Owners of Motor Vessel Lilian S principle that jurisdiction must be decided first, the court held the ELRC enjoys the High Court's constitutional interpretation jurisdiction for employment and labour disputes. The deployment of Cuban doctors into the public medical service is squarely an employment and labour relations matter. The preliminary objection was never pressed.

Petition 42 pleaded with some precision the constitutional provisions violated (Articles 10, 27, 41 read with statutory provisions) and the manner of infringement. Petition 46 made only general and broad allegations without particulars, like the petition in Mumo Matemu, and its prayer 2 was so wide it would affect all foreign medical practitioners including in the private sector.

The court found the failure to engage the interested parties and to locally advertise the specialist positions amounted to a failure of public participation under Article 10. However, the KMPDU schedule of unemployed doctors was not conclusive proof of 100 available specialists with comparable qualifications, the recruitment in Cuba was unrebuted competitive evidence, and the state's obligation under Article 43(1)(a) to realise the right to health, especially in underserved counties, weighed in favour of the decision.

The burden of proof lay with the petitioners to substantiate the alleged discrimination. They tendered no evidence of the alleged disparity in terms of service between Cuban doctors (job group S) and Kenyan counterparts (job group P), and the respondents neither denied nor admitted the allegation. On lack of evidence alone the claim failed. The court nonetheless rejected any executive claim of diplomatic immunity from constitutional scrutiny.