The Work Benefits Act, 2007 (“WIBA” “the Act”) was enacted into law on 22nd October, 2007. The purpose of the Act is to provide for compensation to employees for work related injuries and diseases contracted in the course of their employment and for connected purposes.
On 14th April, 2008 the Law Society of Kenya (“LSK”) filed High Court Petition No. 185 of 2008 contesting various Sections of WIBA which it alleged were inconsistent with the former Constitution of Kenya (“former constitution”). The Respondent in the case was the Attorney General. The Central Organization for Trade Unions was admitted in the suit as an Interested Party. The High Court agreed with LSK and declared Sections 4; 7(1) and (2);10(4); 16; 21(1); 23(1); 25(1) and (3); 52(1) and (2); and 58(2) of WIBA null and void for being inconsistence with the former constitution.
Being dissatisfied with the decision of the High Court, the Attorney General filed Civil Appeal No 133 of 2011 at the Court of Appeal. The Appellate Court held that only Sections 7 and 10 (4) of the WIBA are inconsistent with the former Constitution.
Aggrieved by the decision of the Appellate court, LSK filed Petition No. 4 of 2019 at the Supreme Court. LSK’s grievances can be summarised as follows:-
Section 16 prevents an employee from instituting a court action for recovery of damages in respect of injuries arising from an accident or disease resulting in the disablement or death thus impeding access to justice; Section 23 (1) confers judicial power on (an individual) the Director of Occupational and Safety Services at the Ministry of Labour(“Director”) ousting the High Court’s jurisdiction to deal with constitutional violations arising from such claims; Section 25(1) and (3) denies employers the privilege to appoint a medical practitioner to examine an employee so as to determine the requisite compensation while the privilege is granted to the Director and employee which is discriminatory; Section 52 (1) and (3) confers equal rights of appeal to the Objector and not to a party on the opposite side nor to an affected person wishing to vary an award made by the Director and Section 58(2) seeks to convert suits pending in Court into claims under WIBA thereby purporting to promote the retrospective application of WIBA which is unconstitutional.
The Supreme Court dismissed Petition No 4 of 2019 giving the Work Benefits Act, 2007 a clean Bill of Constitutional Health. The Supreme Court decision can be summarised as follows:-
Section 16 cannot be read in isolation so as to create the impression that it curtails the right to access the courts. Its purpose is revealed in Section 23 which calls for initial resolution of dispute by the Director. If one is aggrieved by the decision of the Director, Section 52 allows the aggrieved parties to seek redress in court. Further, Section 23 grants quasi-judicial functions to the Director therefore his actions and decisions are subject to the overriding authority of the High Court. With regard to section 25(1) and (3), the employer can with the approval of the Director, refer the employee to its own medical practitioner(s) as a safeguard against the Director’s arbitrary use of power. With regard to Section 52, it was not the legislature’s intention to limit appeals, it was a case of unrefined drafting and the Attorney General should take the appropriate action. With regard to Section 58 while a party has the legitimate expectation to have a dispute resolved under the invoked legal regime, there is nothing unconstitutional in WIBA being applied in a manner that is consistent with its provisions but taking into account the invoked legal regime.
The Work Benefits Act, 2007 and court decisions are available at http://kenyalaw.org/caselaw/
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