PETITION NO. 21 OF 2013
The six (6) Petitioners approached the High Court pursuant to Article 22 and 23 of the Constitution of
Kenya 2010 by a petition dated 2nd December, 2011 and filed on 5th December, 2011.
The Petitioners were employed by the 1st Respondent under (KEMRI) Wellcome Trust Programme on
On 1st October 2005, the agreement under the said KEMRI Wellcome Trust Research Programme
was subsumed under KEMRI in a new agreement under KEMRI.The Petitioners’ terms of service with the KEMRI Wellcome Trust Research Programme were brought under KEMRI by an agreement between KEMRI and the Welcome Trust Research Laboratory.
In terms thereof, the Petitioners contracts were severally extended on short term basis.
These short term contracts are alleged by the petitioners to have been unclear and oppressive effectively subjecting the petitioners to unfair administrative arrangement by the Respondent.
1. Whether the Respondents treated the petitioners with inequality on the basis of their race contrary to Article 27(4) of the Constitution with respect to;
a) awarding international jobs
b) awarding grants from the wellcome Trust based on requirements for funding that tend to bar non-EEA residents and that at KWTRP, the white expatriate are more likely to be supported to apply for grants from WJ while there is no clear policy to do this for equally or more qualified local black scientists;
c) distribution of senior scientific positions at KWTRP;
d) equal pay for equal work
e) Insignificant high impact publications;
f) Prejudice / condescension against local African workers.
g) Lack of commitment to racial equality or a policy to ensure racial equality.
2. Whether the Respondents conduct, acts and or omissions are unlawful, illegal and or unfair for violating Articles 27(1)(4),28, 29(f), 35(1)(b),40(1), 41(1)(2) & 47(1)of the Constitution.
3. Whether or not the Petitioners are entitled to an order for;
a) reinstatement; or
b) compensation under Article 23 of the Constitution
RESOLUTION OF ISSUES
Article 259of the Constitution provides that the Constitution must be interpreted in a manner that promotes its purposes, values and principles; advances the rule of law and human rights and fundamental freedoms in the Bill of Rights. Permits the development of the law and contributes to good governance.
It was apposite to note that whereas Clause 4 of Article 24 of the constitution
deals with discrimination by the state, Clause 5specifically prohibits discrimination by any person directly or indirectly against another person.
In this regard, the Petitioner’s term of service within the KEMRI Wellcome Trust Research Programme were brought under KEMRI by an agreement between KEMRI and the Welcome Trust Research Laboratory. It is under this programme that the impugned short contracts and terms of sponsorship were
Implemented. The alleged discriminatory salaries are also part of an Oxford University exchange programme.
The Court found that a requirement that a scientific researcher under the employment of KEMRI must have “relevant connection to the European Economic area (EEA).”is discriminatory as against colleagues under the same employment who do not have such relevant connection.
In the case of Pravin Bowry Vs. Ethics & Anti-corruption Commission, Cause No. 1168 of 2012, and in matter of Veronica Muthio Kioko Vs. Catholic University of Eastern Africa, Industrial Cause No. 1161 of 2010. Article I of Convention No. 111– Convention concerning discrimination in respect of Employment and Occupation, 1958 which defines discrimination thus; For the purpose of this convention the terms discrimination includes;
“any distinction exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.”
The above definition was hence applicable to Article 27(4) and (5)of the constitution as read with Section 5(3) (a) and (b) of the Employment Act No. 11 of 2007which expressly prohibits discrimination at the work.
Accordingly, and in line with the prayers in this Petition, the Court declares and orders against the
Respondents jointly and severally;
1. That, the 1st Respondent’s conduct amounts to and is discriminatory against the Petitioners under Article 27(4) of the Constitution
2. That, the 1st Respondent’s conduct, acts and or, omissions are unlawful, illegal and or unfair and the same violates Articles 27(1) 28, 29(d) & (f), 35(1) (b) 40(1) and 41(1) & (2) of the Constitution.
3. That each of the Petitioners is entitled to compensation for the said violations under Article 23of the Constitution in the sum of Kshs.5million within thirty (30) days of this Judgment.
4. That the Petitioners are entitled to access all the outcomes of their scientific research and to the credit and benefit attached to the outcomes under Article 35and 40 of the Constitution
5. That each of the Petitioners is entitled to a certificate of service acknowledging the service and scientific outcomes attributed to their research and work within 30 days from the date of this judgment.
6. The 1st Respondent to pay interest at Court rates on (c) above from date of this judgment to payment in full.
7. The 1st Respondent to pay costs of the Petition
PETITION NO. 21 OF 2013