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Court throws out petition against KEMRI on payment of allowances



The Employment and Labour Relations Court of Kenya has thrown out a petition that sort to compel the Kenya Medical Research Institute (KEMRI) to pay all eligible workers extraneous allowances and any other allowances they are entitled to receive backdated to the date other workers were given the benefits and to provide for retirees who were in the service at the said period.

The petition filed by Okiya Omtata and Wycliffe Nyakina alleged that there has been discriminatory payment of health risk allowances, health service allowance, non-practice allowance, health workers allowance and health worker’s extraneous allowances at KEMRI.

Reacting to the petition, lawyer Peter Munge of MMC Africa Law, representing KEMRI said that the petitioners – Okiya Omtata and Wycliffe Nyakina are not and have never been employees of KEMRI and as such their claim is speculative and also based on unfounded allegations.

Mr Munge sort the court to decide on if the petitioners have the right or capacity to institute the proceedings.

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He additionally argued that was a separate suit filed by the employees on the same cause of action, being Cause No. 1545 of 2018, pointing out that the court cannot hear two separate suits on the same subject matter and especially by one filed by parties in breach of Section 12 of the Employment and Labour Relations Court Act.

“The petitioners want KEMRI to pay the backdated allowances to employees who are not stated or disclosed in the petition or at all. The petitioners are also not privy to any employment contracts between the subject employer and employees and their claims generalized hence the respondents are unable to respond appropriately,” Mr Munge had argued in response to the petition.

The MMC Africa Law Managing Partner also told the court that the issues in dispute have been determined in a previous suit, being Cause No. 1315 of 2013, and enforcement can only be in the said suit.

In his judgment on the matter on Friday, Justice Stephen Radido narrowed down the issues the court needed to determine on as whether the petitioners had locus standi- the right or capacity- to file the petition and whether the petitioners could prosecute the petition when the issues before the court had already been determined in another suit and with another suit pending before the same court on the same issue.

Justice Radido ruled that even though the petitioners are not employees of KEMRI, they had locus as the issue of discrimination in remuneration is provided under Article 41 of the Constitution and is therefore a matter of public interest.

“Even though the petitioners did not disclose the employees’ names, the court found that the employees are an identifiable class of persons,” Justice Radido said in his judgement.

On the matter of if the court can determine an issue which has previously been determined and where the issues are still pending in another suit before the same court, the judge ruled that the court cannot deliver a judgment where another matter with similar issues is still pending.

This is to avoid inconsistencies and embarrassment for the court.

The court therefore ultimately ruled that although the petitioners had locus standi to file the petition, it was an abuse of the court process and the petition was therefore dismissed with each party expected to bear its own costs.

This judgment comes shortly after the Court of Appeal recently overturned a July 18, 2014 judgement by the Industrial Court which had ruled that six doctors be awarded Ksh. 5 million each by the Kenya Medical Research Institute (KEMRI).

The six doctors working under KEMRI’s Wellcome Trust Research Programme had moved to court to seek action against the research institute for allegedly infringing on their constitutional and employment rights.

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