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Supreme CourtDismissedPetition 12 of 2019

Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others

Supreme Court of Kenya
10 January 2020
Mohammed Khadhar IbrahimM. K. IbrahimJackton Boma OjwangJ. B. OjwangSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. Lenaola
7,408 words in judgment
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The bottom line

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Supreme Court ruled researchers failed to prove discrimination against KEMRI, upholding the Court of Appeal's decision.

What this practically means

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Five Kenyan researchers sued KEMRI, claiming they were paid less and given fewer opportunities than white foreign colleagues. The Supreme Court dismissed their case. The Court explained that the researchers had the initial duty to provide solid evidence of discrimination. They failed to do this. KEMRI had explained that the foreign researchers were employed under different contracts with separate organizations. The Court also rejected claims about ownership of inventions, as the researchers' contracts gave KEMRI rights to work-related discoveries.

Executive summary

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This was an appeal from the Court of Appeal's judgment of 9 November 2018, which had set aside the Employment and Labour Relations Court's decision awarding each of five petitioners KES 5 million for discrimination by their employer, Kenya Medical Research Institute (KEMRI). The petitioners, clinical researchers who had been employees of KEMRI under various contracts, alleged racial discrimination in employment, including unequal access to research grants, career stagnation, and differential pay compared to white expatriate researchers. They also claimed violation of their intellectual property rights under Article 40 of the Constitution. The Supreme Court dismissed the appeal, affirming the Court of Appeal's decision. The Court held that the petitioners bore the initial burden of proof to establish a prima facie case of discrimination, which they failed to discharge. The Court noted that the trial court had overlooked the respondent's detailed replying affidavits which provided explanations for the alleged differential treatment, including that foreign researchers were employed under separate contracts with third parties. On the intellectual property claim, the Court found that the petitioners' employment contracts provided that intellectual property arising in the course of employment belonged to the Institute, and the claim regarding innovations made outside employment was not pleaded at trial. Regarding the Court of Appeal's failure to determine a cross-appeal, the Court acknowledged the omission but declined to remit the matter back, finding it would serve no useful purpose. The Court ordered each party to bear their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether discrimination in the course of employment had characterized the operations of the 1st respondent?
  2. 2.who has the onus of proof in discrimination cases?
  3. 3.were the petitioners’ rights to intellectual property violated by the 1st respondent?
  4. 4.what was the effect of the non-determination of a cross-appeal by the Appellate Court?

Key legal issues

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01

What is the onus of proof in discrimination cases under Article 27 of the Constitution?

Holding

The burden of proof lies on the party alleging discrimination to first establish a prima facie case. Only after this threshold is met does the evidential burden shift to the respondent.

Reasoning

The Court relied on sections 108 and 109 of the Evidence Act and its own precedent in Raila Odinga & others v IEBC & others, Petition No 5 of 2013. It held that the petitioners bore the overriding obligation to lay substantial material before the Court in discharge of the evidential burden. The Court found that the petitioners failed to discharge this initial burden, as the trial court had overlooked the respondent's detailed replying affidavits which provided explanations for the alleged differential treatment. The Court emphasized that constitutional rights safeguards require a higher standard of proof than ordinary civil claims.

p. 15
02

What constitutes indirect discrimination under Article 27 of the Constitution?

Holding

The Court did not define indirect discrimination because the petitioners failed to establish a prima facie case of discrimination, making it unnecessary to reach that question.

Reasoning

The petitioners argued that indirect discrimination is difficult to prove and urged the Court to focus on outcomes and statistics. However, the Court found that the petitioners had not provided sufficient evidence to establish even a prima facie case. The Court noted that the trial court had overlooked the respondent's detailed replying affidavits which explained the employment arrangements, including that foreign researchers were employed under separate contracts with third parties. The Court held that without first establishing a prima facie case, the question of what constitutes indirect discrimination did not arise.

p. 15
03

Were the petitioners' intellectual property rights under Article 40 of the Constitution violated?

Holding

The petitioners failed to establish that their intellectual property rights were violated, and the claim regarding innovations made outside employment was not pleaded at trial.

Reasoning

The Court considered section 32(1) and (5) of the Industrial Property Act. Section 32(1) provides that inventions made in the course of employment belong to the employer, while section 32(5) provides that inventions made without relation to employment and without use of the employer's resources belong to the employee. The Court found that the petitioners' employment contracts provided that intellectual property arising in performance of duties belonged to the Institute. The claim that the 5th petitioner made innovations while out of employment was not pleaded at trial and could not be introduced at the appellate stage. The Court also found the particulars of the alleged violations were inadequately focused.

p. 16
04

What is the effect of the Court of Appeal's failure to determine a cross-appeal?

Holding

While the cross-appeal ought to have been determined, there was no need to refer it back as it would not yield a different result given the petitioners' failure to establish their case.

Reasoning

The Court acknowledged that the Court of Appeal should have determined the cross-appeal. However, the Court found that the cross-appeal sought benefits related to unfair termination, but the petitioners had not denied being paid even for periods they did not work. Since the petitioners failed to discharge their evidential burden on the main claim, the cross-appeal necessarily lacked merit. The Court exercised its discretion not to remit the matter back to the Court of Appeal, as doing so would serve no useful purpose.

p. 17

Legal principles established

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  • The party alleging a constitutional violation must first establish a prima facie case before the burden shifts to the respondent.
  • The standard of proof in constitutional rights claims is higher than the ordinary civil standard.
  • A party cannot introduce a new claim at the appellate stage that was not pleaded before the trial court.
  • Inventions made in the course of employment belong to the employer, as per the Industrial Property Act and employment contracts.
  • A lower court's failure to determine a cross-appeal does not require remittal if the main claim has already failed.

Court orders

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  1. 1.The petition of appeal dated 19 March 2019 has no merit, and is hereby disallowed.
  2. 2.The parties shall bear their own individual costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Mohammed Khadhar Ibrahim
majority
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Setting aside the Judgment of the Court of Appeal and allowing the petition

The petition of appeal has no merit

p. 17

Declaration that discrimination under article 27 of the Constitution includes institutional discrimination

The petitioners failed to discharge their initial burden of proof

p. 15

Declaration that the onus of proving discrimination shifts from the victim to the culprit once a prima facie case is established

The petitioners did not establish a prima facie case

p. 15

Declaration that the right to intellectual property under article 40 of the Constitution for innovations made when an employee is not in employment belongs to the employee

The claim was not pleaded at trial and the petitioners failed to establish it

p. 16

Order that the Court of Appeal determine the cross-appeal

No need to refer the cross-appeal back as it would not yield a different result

p. 17

Costs

The parties shall bear their own individual costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The petition of appeal dated 19 March 2019 has no merit, and is hereby disallowed.
p. 17 Final orders - dismissal of appeal
the petitioners, in the instant case, bore the overriding obligation to lay substantial material before the Court, in discharge of the evidential burden establishing their treatment at the hands of 1st respondent as unconstitutional. Only with this threshold transcended, would the burden fall to 1st respondent to prove the contrary.
p. 15 Burden of proof in constitutional claims
we would not allow a fresh claim at this ultimate appellate stage
p. 16 New issues on appeal
The parties shall bear their own individual costs.
p. 17 Costs order

Key timeline

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Various dates
Petitioners employed as clinical researchers by KEMRI under different contracts.
Before 2018
Petitioners file suit at the Employment and Labour Relations Court (ELRC) alleging discrimination and IP violations.
2018 (before Nov 9)
ELRC awards each petitioner KES 5 million.
2018-11-09
Court of Appeal sets aside the ELRC award.
2019-03-19
Petitioners file a petition of appeal to the Supreme Court.
Supreme Court Judgment
Supreme Court dismisses the appeal, affirming the Court of Appeal.

Practical implications

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For lawyers

Burden of proof in discrimination claims

When alleging discrimination under Article 27, you must first present substantial evidence to establish a prima facie case. The court will not shift the burden to the respondent until this threshold is met. The standard is higher than the ordinary civil balance of probabilities. Ensure your pleadings are comprehensive from the outset.

For businesses

Structuring employment and IP rights

Ensure your employment contracts explicitly state that intellectual property created during employment belongs to the company. The Court upheld the Industrial Property Act's default position, but clear contracts prevent disputes. Also, document the rationale for different employment terms for different categories of staff to defend against discrimination claims.

For individuals

Proving workplace discrimination

If you believe you have been discriminated against at work, you must gather concrete evidence to support your claim. The court will not assume discrimination just because of different outcomes. You must show that the employer's explanations for the differences are false or unreasonable. The burden of proof starts with you.

Frequently asked questions

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What is the burden of proof in a discrimination case in Kenya?+

In Kenya, the person alleging discrimination must first provide enough evidence to establish a basic case (prima facie). Only then does the burden shift to the accused party to defend themselves. This standard is higher than in ordinary civil cases.

Can I sue my employer for owning my inventions in Kenya?+

Generally, no. Under the Industrial Property Act and standard employment contracts, inventions made by an employee in the course of their duties belong to the employer. The Supreme Court in the KEMRI case confirmed this principle.

What happened in the KEMRI discrimination case in Kenya?+

Five Kenyan researchers sued KEMRI for racial discrimination. The Supreme Court dismissed their case, ruling they failed to provide enough initial evidence. The Court noted KEMRI had explained that foreign researchers were employed under different contracts with third parties.

Can I introduce a new legal claim during an appeal in Kenya?+

No. The Supreme Court in the KEMRI case ruled that a party cannot introduce a completely new claim at the appellate stage that was not pleaded before the trial court. All claims must be raised and argued from the beginning of the case.

Later judgments citing this (25)

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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, "Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others", Case Analysis (2020). Petition 12 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/66/eng@2020-01-10

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