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Court of AppealPartially AllowedAppeal from Employment and Labour Relations Court petition (judgment of 21st February 2020)

Aga Khan University Hospital v Gesore (Civil Appeal 133 of 2020) [2025] KECA 1214 (KLR)

Court of Appeal of Kenya
4 July 2025
5,310 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that a doctor's hospital clinical privileges ended when she resigned her faculty job, and that this was neither a contract breach nor discrimination.

What this practically means

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Executive summary

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This is a first appeal against a judgment of the Employment and Labour Relations Court delivered on 21st February 2020, which had allowed a petition by a doctor who, upon resigning from a full-time faculty position at the appellant hospital, was informed that her clinical privileges would automatically lapse. The ELRC had held that the privileges were conferred under the hospital's by-laws, that the doctor was exempt under clause 2.3.2 as a previously privileged practitioner, and that the letter of 17th June 2019 was discriminatory under Article 27 of the Constitution. The Court of Appeal framed three issues: the ELRC's jurisdiction, whether the privileges lapsed on resignation, and whether their termination was discriminatory. On jurisdiction, the Court held that since the privileges flowed directly from the employment relationship and the trigger was the resignation, the dispute was rooted in employment, and the ELRC was properly seized of the matter under Article 162(2)(a) and Section 12 of the ELRC Act, relying on USIU, Shollei and Kenya Airways. On the merits, however, the Court found that the learned judge had misapprehended the by-laws: clause 3.4 of the 2017 by-laws, which governed the 2018 renewal, tied privileges to full-time faculty status, and clause 2.3.2 concerned private practitioners, a category the respondent never solely occupied. Relying on the sanctity of contract, the Court held the privileges lawfully lapsed upon resignation. On discrimination, applying the test requiring differential treatment, absence of justification and prejudice, the Court found no proper comparator was identified. The appeal was allowed, the ELRC judgment set aside in its entirety, and the petition dismissed with costs to the appellant in both courts.

Questions the Court framed

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

  1. 1.Whether the ELRC had jurisdiction to entertain the petition, given the nature of clinical privileges
  2. 2.Whether the respondent's clinical privileges were intrinsically tied to her employment as a full-time faculty member and thus lapsed upon resignation
  3. 3.Whether the termination of the respondent's clinical privileges was discriminatory in violation of Article 27 of the Constitution

Key legal issues

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01

Jurisdiction of the ELRC over clinical privileges disputes

Holding

The ELRC had jurisdiction because the privileges flowed directly from the employment relationship and the trigger for the dispute was the resignation from employment; constitutional questions arising incidentally fall within its domain.

Reasoning

Relying on USIU vs Attorney General, JSC vs Shollei and Kenya Airways, the Court held that the ELRC's jurisdiction under Article 162(2)(a) and Section 12 of the ELRC Act covers disputes rooted in employment even where contractual elements are present. The respondent's clinical privileges flowed from her full-time faculty employment; her resignation triggered the denial of continued privileges, establishing a sufficient nexus with the employment relationship.

p. 8
02

Whether clinical privileges survived resignation

Holding

The privileges were tied to full-time faculty employment under Clause 3.4 of the 2017 by-laws and automatically lapsed upon resignation; the 2018 renewal was governed by the 2017 by-laws, not the 2010 by-laws.

Reasoning

The Court accepted the appellant's interpretation: Clause 3.4 expressly links clinical privileges to faculty status. The respondent's 2018 renewal occurred when the 2017 by-laws were in force, and the law does not operate retrospectively to invoke the 2010 by-laws. Clause 2.3.2, on which the respondent relied, pertains to private practitioners, a category to which she never solely belonged.

p. 11
03

Whether the withdrawal of privileges was discriminatory under Article 27

Holding

No discrimination was established; the respondent failed to prove differential treatment, lack of justification and prejudice against a properly similarly situated comparator.

Reasoning

Applying Trusted Society of Human Rights Alliance on pleading and Mohammed Abduba Dida on the discrimination test, the Court found the respondent identified no comparator - another full-time faculty member who resigned and retained privileges. Non-faculty private practitioners were not similarly situated since their privileges were never employment-based. The University of Nairobi's request for clarification showed the loss of privileges was a foreseeable consequence of resignation.

p. 10

Legal principles established

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  • The ELRC has jurisdiction to enforce not only Article 41 rights but also fundamental rights ancillary and incidental to employment and labour relations, where the dispute is rooted in the employment relationship
  • Clinical privileges conferred on full-time faculty members as part of their employment lapse automatically upon resignation under the governing by-laws, and a court cannot rewrite the parties' contract
  • A party alleging discrimination must establish differential treatment, absence of justification, and prejudice; mere unequal outcomes do not amount to discrimination

Court orders

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  1. 1.The appeal is meritorious and is hereby allowed
  2. 2.The judgment and orders of the Employment and Labour Relations Court delivered on 21st February 2020 are set aside in their entirety
  3. 3.The respondent's petition is dismissed with costs to the appellant in both this Court and the court below

The bench

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

majority
majority
majority
On appeal from
Employment and Labour Relations Court
Jurisdiction invoked
First appeal under Rule 31(1)(a) of the Court of Appeal Rules from the ELRC exercising original jurisdiction under Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act

Relief refused

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Respondent's claim that she retained clinical privileges after resignation and that their withdrawal was discriminatory under Article 27

Privileges were tied to full-time faculty employment and lapsed upon resignation under Clause 3.4 of the 2017 by-laws; no comparator was identified to prove discrimination

p. 10

Costs

The respondent's petition is dismissed with costs to the appellant in both this Court and the court below

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 appeal is meritorious and is hereby allowed.
p. 11Final orders - appeal allowed
The judgment and orders of the Employment and Labour Relations Court delivered on 21st February 2020 are set aside in their entirety.
p. 11Final orders - ELRC judgment set aside
The respondent's petition is hereby dismissed with costs to the appellant in both this Court and the court below.
p. 11Final orders - petition dismissed with costs
The respondent's loss of privileges, therefore, stemmed directly and causally from the termination of her employment. This chain of events establishes a suficient nexus between the privileges dispute and the employment relationship.
p. 8ELRC jurisdiction
a party alleging discrimination must establish: difierential treatment; absence of justification; and prejudice.
p. 10Legal test for discrimination under Article 27
A Court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue infiuence are pleaded and proved.
p. 9Sanctity of contract

Issues in the judgment

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minor

The judgment refers to the cancelling letter as dated 17th June 2019 in the factual narrative but the respondent's submissions refer to a letter dated 17th June 2018

minor

The respondent's counsel is recorded as 'Mr. Teddy Ochieng' while one member of the appellate bench is 'F. OCHIENG'; the judgment contains no recusal discussion despite the shared surname

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Aga Khan University Hospital v Gesore (Civil Appeal 133 of 2020) [2025] KECA 1214 (KLR)", Case Analysis (2025). Appeal from Employment and Labour Relations Court petition (judgment of 21st February 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1214/eng@2025-07-04

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