Gwer v. KEMRI Case: Researchers Awarded 30 Million Shillings for Infringement of Intellectual Property Rights

KEMRI-Wellcome Trust Research Programme KWTRP
In the recent case of Dr. Samson Gwer & 5 others v. Kenya Medical Research Institute (KEMRI) & 2 others Petition No. 21 of 2013, the Industrial Court at Nairobi found that KEMRI-Wellcome Trust Research Programme (KWTRP) had violated the constitutional rights to intellectual property of six Kenyan research doctors and ordered KEMRI to pay each of the doctors a sum of 5 million shillings as compensation. A copy of the court’s judgment is available here.
After an in-depth review of this case from an intellectual property (IP) perspective, this blogger concludes that this case sets an important precedent for the State’s obligations to protect the right to property under Article 40 of the Constitution of Kenya.
The researchers alleged that the respondents “routinely violated the Petitioners’ right under Article 40(1) of the Constitution by taking away the Petitioners’ right to intellectual property resulting in the Respondents, its servants, employees and students taking credit for the work and scientific innovation of the Petitioners by:
(i) (a) disregard syndrome; (b) Mathew Effect (Discovery credit inadvertently reassigned from the original discoverer for a better known researcher)
(ii) disapproval by the Respondent of the Petitioners and other local scientists innovations or work to apply for grants;
(iii) misappropriation of the work of local scientists to benefit expatriate scientists
(iv) frequent unfair administrative action
(v) Inability to veto adverse decisions by the scientific team leader
(vi) redeployment and chastisement through mail from the Director of KEMRI on the account of raising these grievances.
As a result the Petitioners submitted that the cumulative effect was to forever stifle the progress by Kenyan researchers and to impede their autonomy and dream of Kenyanising scientific innovations.
Therefore the petitioners sought the following reliefs, inter alia, a declaration that the Respondent’s conduct, acts and/or omissions are unlawful, illegal and/or unfair and the same violates Article 40 of the Constitution as well as an order that the Petitioners are entitled to compensation for the above alleged violation of the Constitution.
With regard to allegation (i) on the ‘disregard syndrome’, the petitioners submitted that the most rampant scientific misconduct by the Respondents against the Petitioners was plagiarism, a behaviour the latter termed as ‘citation amnesia’, ‘disregard syndrome’ and ‘bibliographic negligence’ on the part of the Respondents.
In this connection, the Petitioners alleged that the Respondents “arm-twisted the Petitioners to give up their intellectual property rights and cede their passwords to research and innovation” and that “the contracts of employment do not entitle KEMRI to the intellectual property of the Petitioners and the appropriation outlined is unlawful.”
The Respondents flatly denied these allegations arguing that there was not an iota of evidence before the court to substantiate the petitioners’ claims.
In its determination, the learned court noted that whereas KEMRI as an employer is a public institution, the funding under the KEMRI Wellcome Trust Research Programme emaned from external donors. These external donors attached specific terms and conditions to the grant and administration of the Wellcome Trust Research Programme which terms and conditions became subject of grievances by the Petitioners. However the Court found in favour of the Petitioners and stated thus at paragraph 82:
“The 1st Respondent as a state employer is bound by the Constitution to protect the right of the Petitioner and not allow a policy that appropriates their intellectual property as has been ably demonstrated by the Petitioners herein contrary to Article 40(1) of the Constitution.”
Therefore the court ordered that each of the Petitioners is entitled to compensation for the said constitutional violation in the sum of KES 5 Million within thirty days of the judgment date, including interest at Court rates from the judgment date to payment in full. Further the court ordered 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 Articles 35 and 40 of the Constitution. KEMRI was also ordered to pay the costs of the Petition.
From the above, it is submitted that the petitioner’s case for scientific misconduct and denial of intellectual property (IP) rights by KEMRI raises a number of important issues. Furthermore, the learned court’s determination that the petitioner had ably made a case for infringement of the constitutional right to property under Article 40 is quite significant as it reinforces a dangerous precedent set by the Court of Appeal on constitutional enforcement of IP rights.
To begin, the petitioners’ case is problematic as it does not disclose which specific intellectual property rights have been infringed by KEMRI. This case is further complicated by the petitioners’ conflation of plagiarism and alleged IP infringement. As previously discussed by this blogger here and here, copyright infringement may also amount to plagiarism but plagiarism can never amount to copyright infringement. However the petitioners appear to have successfully misled the court to make a finding that KEMRI’s scientific misconduct of plagiarism amounts to infringement of the petitioners’ intellectual property rights as enshrined in the Bill of Rights.
This leads us to consider the impact of the court’s IP-related findings in this case. The present judgment in the Gwer v KEMRI case appears to be in line with the recent Court of Appeal decision in the digital migration case where the majority of the appellate judges found that the alleged infringement of intellectual property rights could be the subject of a constitutional Petition. However as this blogger has argued here, the reasoning by the Court of Appeal on IP (and seemingly adopted in the Gwer case) was flawed.
Therefore on this issue of constitutional enforcement of IP rights, this blogger respectfully submits that the earlier decisions by the learned Majanja J. in the High Court cases of Sanitam Services (EA) Ltd v Tamia Ltd Petition No. 305 of 2012 and Royal Media Services Ltd & 2 others v Attorney General & 8 others [2013] appear to be more cogent and correct in law compared with the findings in the present judgment and that of Court of Appeal in the digital migration case.
As a parting shot, this blogger notes that one unintended consequence of this emerging jurisprudence of constitutional enforcement of IP rights particularly in the employment context is that ex-employees such as Samson Ngengi (See our analysis of Ngengi v. KRA here) have an added avenue to obtain damages and compensation from public sector ex-employers in IP-related disputes. This blogger is informed that arbitration proceedings in the Ngengi’s case are still on-going.

  1. Moses Muchiri
    Moses Muchiri
    I think the title to the post is slightly misleading. To be clear, the award of Ksh. 5 million per Petitioner (with interest until full payment) was NOT in respect to the lack of credit for the Petitioners’ scientific contributions/ outputs which is the part of the Petition relevant to IP, but rather for that part of the Petition which was based on discrimination (cf. para. 91 (b) and (c) of the judgment). That said, the judgment does not explain how the award of Kshs. 5 million per Petitioner was determined. What criteria were used or was it heaven-forbid arbitrarily determined? In terms of IP, the judgment addressed the part of the Petition relating to being denied access to their scientific research and the lack of credit to the benefits of the outcomes of the Petitioners’ research. Here the court found and ordered that (cf. para. 91 (d)) - “that the Petitioners are entitled to access all the outcomes of their scientific research and to the benefit attached to the outcomes …” In this respect, the court further ordered that each of the Petitioners “is entitled to a certificate of service acknowledging the service and scientific outcomes attributed to their research and work …” (cf. para. 91 (e)). I agree with the blogger that it is not clear exactly which IPRs have been infringed although nowhere in any of the 7 orders were the words infringement of intellectual property rights used, which shows there is a possibility the judge was aware of this at the back of his mind. It is worth carefully considering that by ordering in para. 91 (d) that the Petitioners are entitled to the ‘benefit’ attached to the outcomes of the Petitioners’ research work, the Petitioners are entitled to any and all ‘benefits’ arising from the results in addition to being credited. That means that if the research results are used commercially (e.g. commercially published) they would be entitled to a proportion of the proceeds. This order has a far reaching effect. On the other hand, that in this day and age Kenya’s reputable research institutions the likes of KEMRI are still being run as fiefdoms is disheartening not to mention a loss to scientific progress and innovation. This judgment is equally symptomatic of the unsatisfactory management of Kenya’s public research institutions particularly in terms of strategic IP management to wit the lack of clear IP policies, guidance and processes. Let us conduct a quick preliminary survey of KEMRI’s IP framework. Upon consulting KEMRI’s well-designed website entering a search query using the terms ‘IP’, ‘intellectual property’, ‘intellectual property policy’ all those search queries yielded no results. KEMRI’s research guidelines available here also do not mention IP. KEMRI’s internal data request form does mention IP albeit in a very limited manner. I would like to believe that KEMRI has an IP policy which maybe is not published on their website although this wouldn’t make sense. Institutions should take every opportunity available to be clear and forthright about their IP policies, if anything it would only be to the institute’s advantage to have their IP policy publicly available. An undated abstract of a post graduate study conducted at the University of Nairobi seems to suggest KEMRI does have an IP policy but I have not come across any. It is no wonder then that “citation amnesia and bibliographic negligence” syndromes are exhibited (cf. para. 24). This falls generally within the ambit of attribution. After working very closely with scientists in several countries in the world, I can confidently say that there are very few areas more sensitive to scientists than attribution or lack of it. Researchers want to be credited for all research they conduct or are involved in conducting. Development of proper attribution and citation standards and practices in any research institution is one way to incentivize research, increase recognition and reward in all scientific endeavors and disciplines. Lack of a clear citation and attribution policy or guideline is a recipe for a lot of misunderstandings particularly when dealing with international research partners that have such policies. It is a high risk factor to engage with donors and research partners without these IP policies. This partly explains why Kenya’s intellectual property is easily misappropriated. Lack of such attribution and citation standards in a research institution in any field of science (which would form part of a coherent IP policy and set of implementation guidelines) is nothing short of institutional negligence. If anything is to be deduced from this judgment, it is that now more than any other time in Kenya, we need foresight and action in order to drive innovation in our research institutions. IP has for too long been relegated to the background of institutional priorities, largely I believe because there is lack of understanding of what IP is all about, the value and benefits derived from IP which leads to lack of demand for IP as a whole. IP is “the invincible infrastructure of innovation. ” We need a change of attitudes around IP. We need some sort of IP campaign or advocacy program particularly targeting publicly funded research institutions in Kenya. Assessing the personnel needs of these institutions and having individuals who understand IP, how IP functions and who are able to establish strategic IP management at the institutional level is a good start. Publicly funded research institutions in Kenya are in dire need of committed and driven IP enthusiasts to (a) influence IP policy changes by inter alia designing an IP policies aligned with the overall institutional mission and core values and objectives, (b) understand the institute’s internal resources and external operating environment and (c) engage at the institutional management level to elicit support critical to set up an IP department/office, develop an IP management plan and processes and to implement the plan across the organization’s corporate structure and in certain key departments such as the R&D team, information and communications team, data management teams. Without such capacity building, Kenya will perpetually continue to trail behind in scientific visibility. Perhaps this should be a call to action.
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