Understanding the Legal Framework of Work Injuries in Kenya.
Work-related injuries are those injuries that one suffers while performing their job duties. These can be caused by several factors at the workplace and can be attributed either to the negligence of the employer or the employee. It is important that both parties understand the legal framework as well as the procedure to be followed while seeking compensation. In this article we will delve into the applicable law in Kenya and the emerging issues.
Applicable Law.
The applicable legal statutes that provide the legal framework that provides for compensation to employees for injuries, disease and death suffered while performing their job duties are; The Employment Act, The Occupational Safety and Health Act No. 15 of 2007 and the Work Injury Benefits Act, CAP 236 Laws of Kenya. In this article we will focus on the Work Injury Benefits Act (hereinafter referred to as “The Act”).
The Act applies to all employees except members of the Armed Forces and employees deployed outside Kenya for a continuous period of more than 12 months.
The Act gives the Director of Occupational Safety and Health Services (DOSHS) primary jurisdiction to hear and determine work injury related claims.
However, if aggrieved by the decision of DOSHS, either party is at liberty to lodge an objection within 60 days. DOSHS then responds within 14 days either by upholding or varying the decision. An objector may, within 30 days, appeal to the Employment and Labour Relations Court, such a decision.
The Act also provides for the duties of the employer and the rights of an employee.
Duties of the employer.
The Employer has the following duties under the Act:
- Take out workers’ compensation insurance to cover their employees.
- Register with DOSHS.
- Keep a proper record of workers’ wages and other information.
- Report incidents to DOSHS after being notified by an employee(s).
Rights of the employee.
An employee has the right to compensation for injuries and diseases suffered while performing their job duties.
Emerging issues in the Legal Framework.
Over the years, there have been emerging issues that highlight the gaps and limitations in the available legal framework that deal with work injuries and occupational diseases. Some of the emerging issues include:
- Notice or Report of the accident to DOSHS. The Act provides for either the employer or employee to report the incident to the director. However, in recent cases where employers have failed to report an incident and the claim is lodged and investigations conducted and an award issued, the employers move to court in a bid to appeal the decision indicating that they did not participate in the process leading to the award. The act is silent on how a party who was not made aware of the proceedings before the Director and who only learns of them at the adoption stage moves to re-open the assessment if the time for appeal has lapsed. In Charles v Cheto (Civil Appeal E046 of 2022) [2025] KECA 784 (KLR), the Court of Appeal held that where an employer was not made aware of the proceedings before the Director of Occupational Safety and Health Services (DOSHS) and only learns of the assessment and resulting award at the stage of court adoption, and the statutory time for appeal has already lapsed, the appropriate recourse is to file Judicial Review proceedings to challenge or quash the Director’s decision. The Court emphasized that such a challenge must be mounted before the award is adopted by the court. Once adopted, the decision takes the force of a judgment, limiting the available remedies.
- Enforcement of the award. Once DOSHS has issued its decision, compensation is to be done by the employer or its insurer within 90 days. However, in most instances there has been slow processing of claims prompting the aggrieved party to proceed to Court to seek for enforcement of the decision. There is a lacuna in the law with regard to the procedure for enforcement of the Director’s decision in that there is no express provision of the WIBA stipulating the procedure for enforcement. Be that as it may, Employment and Labour Relations Courts have aptly held that enforcement of the Director’s decisions properly lies with the ELRC as the court with the jurisdiction to deal with employment and labour relations claims and for connected purposes.
- Disagreements between employers, employees, insurers and DOSHS. Over time, disagreements have arisen between the parties involved. The disputes include: the procedure followed in filing and processing of claims, assessment and nature of injuries and diseases and the compensation awarded. These disputes often find themselves in Court where the employer or insurer seeks to quash the decision of the DOSHS by way of judicial review. The Act does not provide for dispute resolution leaving the parties to seek redress at the High Court.
- Scope and definition of workplace. Over the past years, the concept of workplace has evolved significantly. For example, there has been the introduction of the concept of working remotely and/or working from home policies. Employers are left with the challenge particularly of determining liability in compensating employees who sustain injuries or occupational diseases while working from home.
- Employer liability for occupational diseases. The Act is not exhaustive on the occupational diseases that an employee can seek compensation. Over time the DOSHS has awarded employees for diseases contracted in their course of employment as long as they can prove causation.
Conclusion.
There is still need for the improvement of the existing and development of new legal framework to address the emerging trends surrounding injuries and occupational diseases suffered at the workplace. It is important that both employers and employees understand their duties and rights under the Act.
At J.K. Kibicho & Company Advocates we provide compliance audit services to ensure compliance with the Act and also provide legal services on how to respond to claims and also how to go about filing a claim for compensation in the case of an employee.
This alert is for information purposes only and is provided for general purposes only and does not constitute legal advice. Should you have any questions or need legal advice, please contact us on info@jkkibicho.co.ke.
Contributor:
Judith Aura-Associate
