The Court of Appeal has overturned a landmark decision by the Employment and Labour Relations Court (ELRC) that had declared Aga Khan University Hospital’s cancellation of a doctor’s clinical privileges unconstitutional and discriminatory.
In a judgment delivered by Justices Jamila Mohammed, Fred Ochieng, and Aggrey Muchelule, the appellate court ruled that Dr. Edna Kemunto Gesore’s clinical privileges were lawfully terminated when she resigned from her full-time faculty position at the hospital in 2019.
Dr. Gesore had served as a senior anesthesiologist and faculty member at the hospital and was also granted clinical privileges allowing her to treat and admit private patients. When she resigned, the hospital notified her that those privileges would lapse automatically prompting her to move to the ELRC, claiming violation of her constitutional rights, including the right to equality and non-discrimination under Article 27.
The ELRC initially ruled in her favour, finding that the termination of her clinical rights was discriminatory. However, the Court of Appeal disagreed.
In a strongly worded ruling, the judges held that the privileges were intrinsically tied to her employment status and were governed by the hospital’s 2017 by-laws which clearly stated that only full-time faculty could hold such privileges.
“She cannot be treated as a private practitioner under the by-laws. The clinical privileges were not independent of her employment,” the court found, adding that Dr. Gesore had not provided evidence of differential treatment or targeted discrimination.
The court also upheld the jurisdiction of the ELRC to hear the matter, acknowledging that constitutional questions can arise from employment disputes. However, it concluded that the ELRC erred in its interpretation of the hospital’s by-laws and wrongly found that Dr. Gesore had been discriminated against.
The appellate court set aside the ELRC judgment in its entirety and dismissed the petition, awarding costs to Aga Khan University Hospital.
