Revisiting Work Injury Benefits Framework for Kenya: a Case for Review of Wiba 2007

Abstract

The Work Injury Benefits Act CAP 236 of the Laws of Kenya (WIBA), was one of the highlights of labour reforms in 2007 that was seeking to promote employees’ rights to compensation for work related injuries. However, WIBA was received with a lot of disquietness by lawyers, who considered some of the provisions of the Act to be inconsistent with the Constitution of Kenya. In addition to these provisions being considered unconstitutional, the same were seen to lock out other stakeholders within the workmen compensation structure. The contested provisions of WIBA were challenged before the High Court by the lawyers’ professional body, the Law Society of Kenya (LSK) and the said court concurred with LSK in a judgment delivered in 2009, that indeed, sections 10(4), 16, 23(1), 25(1) and (3), 52(1) and (2) and 58(2, respectively, were unconstitutional. The Attorney General (AG) challenged this decision before the Court of Appeal and the said court upheld WIBA as being constitutional. LSK, dissatisfied with this decision, appealed to the Supreme Court who finally put this matter to rest by upholding the Court of Appeal decision. The Supreme Court in giving WIBA a clean bill of health, noted some drafting challenges in some provisions which if interpreted in their ordinary meaning, would be ambiguous. It is in the ambiguity that the research is seeking to establish whether it is time to consider a review of WIBA. Particularly, there has since been a lot of confusion on how the Director of Occupational Safety and Health Services, (DOSH)can determine the issue of liability when he only serves an administrative role and what processes have been put in place to allow for an employer to challenge an employee’s injuries. Secondly, whilst it is clear that the magistrates’ courts lack jurisdiction to hear and determine work related injuries, there is no recourse before the Director when an employee’s case has been dismissed at the magistrates’ court. It was therefore necessary to revisit the work injury benefits framework and seek answers to these challenges, by appreciating the dynamism of Kenya’s workforce and the necessity to have all stakeholders on board, to end the impasse that still remains unaddressed, two years after the Supreme Court pronounced itself on WIBA. An attempt has been made to identify and perhaps address all these pressing challenges by unpacking the work injury benefits framework in Kenya, in five chapters. In Chapter One, the Introduction and Background of the research gives a general overview of how the era of industrialization played a big role in promoting workers’ welfare especially when they were injured in the course of employment and the enactment of legislation further progressing worker’s rights. The Statement of the Problem uniquely identifies the gaps in WIBA and how they have greatly affected fair administration of work injury claims. The research objectives and research questions seek to address one goal, which is whether it is time to review WIBA considering the pressing gaps and challenges of the Act. Finally, the Literature Review shall discuss various authors who highlighted flaws of a ‘no fault’ workmen compensation system. In Chapter Two, the research will highlight the historical background of workmen compensation in Kenya’s context discussed in three phases’ i.e colonial period, postindependence period and post Constitution of Kenya, 2010. This chapter shall also discuss the obligations of the stakeholders as envisaged under WIBA. In Chapter Three, the research will reflect on the legal and policy framework of Kenya’s workmen compensation in reference to the Workmen’s Compensation (Accidents) Convention, 1925(No.17) and WIBA’s adaptation to the Convention . This chapter will also look at two jurisdictions, i.e. U.S and U.K’s workmen compensation models and the lessons that Kenya can learn from these two jurisdictions. In Chapter Four, the research analyses the decision of the Supreme Court on WIBA and discussions on the practicability and interpretation of the decision will be the basis for making a case for review of WIBA. Finally, Chapter Five is the climax, where the research will be proposing reforms under the Act by way of amendments, with an all-inclusive approach of all parties that are involved in the workmen compensation process and not just an employer and employee as envisaged in the Act. This chapter will also look at policy reforms at the Ministry of Labour, and particularly, the Department of Occupational Health and Safety, in relation to the proposed legal reforms.