Dr. Ednah Kemunto Gisore v Aga Khan University Hospital (Petition 105 of 2019) (Employment and Labour) [2020] KEELRC 1548 (KLR)
The bottom line
#A Kenyan court ruled that a doctor's hospital clinical privileges survive resignation from her teaching job, and cancelling them was unconstitutional discrimination.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over a petition by a former employee concerning clinical privileges
The court has jurisdiction because the dispute arises from the employment relationship and the respondent itself contends the clinical rights were conferred by employment
Jurisdiction is founded on Article 162(2) and section 12 of the ELRC Act. The respondent's objection that the petitioner was no longer an employee contradicted its own position that clinical rights flowed from employment. The court held it proper to determine whether the clinical rights were employment rights extinguished by resignation.
Whether clinical privileges were attached to employment as full-time faculty
They were separate and distinct; resignation from faculty did not affect clinical privileges
The appointment letter made no reference to clinical privileges; privileges were granted and renewed by separate instruments and subject to separate criteria not requiring faculty membership. Section 3.4 of the Bylaws refers disjunctively to resignation from Full Time Faculty or Active Medical Staff Membership, and Section 2.3.2 excepted those already privileged from the 3rd Edition Bylaws.
Whether the letter of 17th June 2019 discriminated against the petitioner contrary to Article 27
Yes - it treated her differently from other already-privileged private practitioners excepted by Section 2.3.2
The respondent did not produce evidence that privileges granted to non-faculty private practitioners differed from those granted to the petitioner. Applying Section 2.3.2 as read with 3.4 to strip the petitioner's privileges, while grandfathering other already-privileged practitioners, amounted to discrimination under Article 27.
Legal principles established
#- Clinical privileges granted by a separate instrument are distinct from employment as full-time faculty; resignation from faculty does not automatically surrender clinical privileges under Bylaws Sections 2.3.2 and 3.4
- The word 'or' in Bylaws Section 3.4 is disjunctive, so resignation from one of Full Time Faculty or Active Medical Staff Membership does not relinquish the other
Court orders
#- 1.A declaration that the conduct of the Respondent was a discrimination against the petitioner
- 2.An order quashing the letter dated 17th June 2019 to the extent it purports to cancel the clinical privileges of the petitioner on 30th June 2019
- 3.Costs of the petition to be borne by the respondent
- Jurisdiction invoked
- Article 162(2) of the Constitution and section 12 of the ELRC Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dr. Ednah Kemunto Gisore v Aga Khan University Hospital (Petition 105 of 2019) (Employment and Labour) [2020] KEELRC 1548 (KLR)", Case Analysis (2020). Petition dated 24th June 2019 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1548/eng@2020-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.