The Procedural and Compensatory Framework for Workplace Injuries in Kenya

Introduction

The Work Injury Benefits Act, 2007 (WIBA) establishes a comprehensive legal framework governing the rights and obligations of both employees and employers following a workplace injury in Kenya. The Act provides a structured process for compensating workers, ensuring fairness and financial relief when accidents occur at the workplace. This article examines the critical, time-bound steps and legal responsibilities triggered from the moment an accident occurs, from immediate duties of first aid and reporting to the formal processes for claiming and settling compensation.

The Constitutional and Jurisdictional Framework

The legal landscape for workplace injury claims has been fundamentally shaped by the Supreme Court decision in Law Society of Kenya v Attorney General & Another Petition No. 4 of 2019 [2019] KESC 16 (KLR). In that decision, the Supreme Court upheld the constitutionality of WIBA and clarified the jurisdictional framework for work injury claims. The Court held that the Act’s purpose is noble: to offer protection to employees who get injured or contract diseases in the course of their duties, with a reach far wider than its predecessor, the Workmen’s Compensation Act Cap 236.

The Supreme Court emphasised that the Director of Occupational Safety and Health Services (DOSH) is the first point of call in addressing work injury claims. The Court stated that the Director’s inquiries are essentially preliminary investigations, and such mechanisms set out by statute must be left to run their full course before a court intervenes. This simplifies procedures, enhances access to justice, and encourages expeditious disposal of disputes.

However, the Court clarified that section 16 of WIBA does not operate as an ouster clause. Rather, it is merely facilitative of what may eventually end up in court, allowing alternative dispute resolution mechanisms to be invoked before one can approach a court. The practical outcome is that claims in respect of occupational accidents or diseases which fall within the ambit of WIBA must follow the route to compensation prescribed by WIBA.

The Legitimate Expectation Doctrine and Pending Claims The Supreme Court addressed the issue of legitimate expectation by parties already before court in paragraph 85 of its judgment:

“In agreeing with the Court of Appeal, we note that it is not in dispute that prior to the enactment of the Act, litigation relating to work-injuries had gone on and a number of the suits had progressed up to decree stage; some of which were still being heard; while others were still at the preliminary stage. All such matters were being dealt with under the then existing and completely different regimes of law. We thus agree with the Appellate Court that claimants in those pending cases have legitimate expectation that upon the passage of the Act their cases would be concluded under the judicial process which they had invoked.”

The Court of Appeal’s position on legitimate expectation was in tandem with the High Court interlocutory order by Justice Ojwang (as he then was) which directed that all pending litigation which had been commenced on the basis of either the Workmen’s Compensation Act or the common law, or a combination of both regimes of law, shall continue to be prosecuted and finalized on the basis of the operative law prior to the entry into force of WIBA.

The law on work injury related claims is now settled: all pending litigation filed prior to the entry into force of WIBA commenced on the basis of either the Workmen’s Compensation Act or of the common law are to be finalised on basis of the legitimate expectation that upon the passage of WIBA such cases would be concluded under the judicial process which had been invoked. All other litigation on work injury claims post entry into force of WIBA would proceed before the Director WIBA as provided for under section 52 of WIBA.

The Chief Justice’s Practice Directions

The Chief Justice issued Practice Directions through Gazette Notice No. 5476 dated 24th April 2023 providing directions on claims filed after commencement of WIBA but before the Supreme Court decision. Taking into account that the High Court vide its Judgment dated 4th March 2009 in Law Society of Kenya v Attorney General; Central Organization of Trade Unions (K) (Interested Party) [2009] KEHC 4250 (KLR) declared some provisions in WIBA including Sections 16, 23(1) and 52, which prescribe the procedure for lodging claims under the Act, unconstitutional, the declaration of nullity created a legitimate expectation that Claimants could directly lodge claims for compensation for work related injuries and diseases in court. Litigants cannot be penalised for relying on the declaration of nullity.

All claims with respect to compensation for work-related injuries and diseases filed after the commencement of WIBA and before the Supreme Court decision at the Employment and Labour Relations Courts or the Magistrates’ Courts shall proceed until conclusion before the said courts.

Immediate Action by the Injured Employee

The injured employee must, as soon as possible, give notice of the accident to their employer. This notice can be verbal or written under section 21 of the Act. While the law allows for a report up to 12 months after the accident under section 27, immediate reporting is critical for triggering the employer’s legal duties and ensuring prompt medical care and compensation processes.

Immediate and Ongoing Duty of the Employer

The employer’s responsibility begins immediately upon being notified of or learning about the injury. Their first duties are non-financial and include:

First Aid and Conveyance. The employer must provide first aid appliances under section 45 and must arrange for the injured worker’s conveyance to a hospital or back home if necessary under section 46.

Report on the Accident. The employer is legally required to report the accident to the Director of Occupational Safety and Health Services within seven days of learning of it under section 22(1). This is mandatory even if the employer disputes that it is work-related.

Provide Medical Aid. The employer is obligated to defray all reasonable medical expenses from the point of injury. This includes costs for treatment, surgery, medicine, transport for treatment, and appliances like crutches under section 47. Critically, the employer is prohibited from demanding any contribution from the employee for this medical aid under section 50.

Payment of Medical Bills: Immediate Employer Responsibility

The employer is required to pay the medical bills as they are incurred, not later after treatment. Section 47 states the employer “shall defray any expenses reasonably incurred,” placing the financial burden on the employer from the outset. These expenses are part of the “medical aid” benefit, which is a core component of “compensation” under the Act. The fees must align with a prescribed scale under section 49.

The Formal Claim and Compensation Process

The immediate medical aid is separate from the formal claim for disability or other compensation:

Lodging a Claim. A formal claim for compensation (for temporary or permanent disablement under section 10) must be lodged with the Director within twelve months of the accident or death under section 26(1).

Employer’s Role in the Claim. Upon receiving any claim or medical report from the employee, the employer must submit it to the Director within seven days under section 24(2).

Settlement of Claim. Once the Director lodges a formal claim with the employer or their insurer, they have 90 days to settle it under section 26(4). Failure to pay compensation is an offence under section 26(6).

Assessment of Permanent Disability

Where the degree of permanent disablement is not provided in the schedules to the Act, it should be assessed by a medical practitioner. Section 2 of the Act defines permanent disability as a permanent injury or disfigurement. The degree of permanent incapacity is to be determined by reference to the First Schedule to the Act.

In Galaxy Paints Ltd v Director of Occupational Safety and Health Services; Karanja (Interested Party) [2025] KEELRC 2772 (KLR), the court affirmed that the Director properly applied provisions of the First Schedule in assessing permanent incapacity. The court noted that ankylosis in optimum position of the shoulder is awarded at 35%, and where an employee had reduction of shoulder movements by 50%, the Director rightfully applied the schedule to award half the optimum percentage.

The Procedure for Second Medical Examinations

Section 25(1) of WIBA provides that an employee who claims compensation or to whom compensation has been paid or is payable, shall when required by the Director or the employer as the case may be, after reasonable notice, submit himself to an examination by a medical practitioner designated by the Director or the employer with the approval of the Director.

In Galaxy Paints Ltd, the court held that the second medical examination conducted by the employer without approval of the Director was illegal. The court stated:

“Any process outside of the statute that is shown to have been undertaken, either by the Respondent or its agents and/or insurers to the disadvantage of the Applicant regarding the assessment and award made by the Director of Occupational Safety and Health Services was an outright illegality, which this Court cannot sanction”.

The court observed that the drafters of WIBA must have foreseen a scenario where employers would come up with their medical reports or those of their insurers which would be detrimental to the injured employees. This is the reason the Act under section 25(1) requires such an employer to only undertake a second medical examination with approval with the Director.

Objections and Appeals Against Decisions of the Director

Section 51 of WIBA provides that any person aggrieved by a decision of the Director on any matter under this Act, may within sixty days of such decision, lodge an objection with the Director against such decision. The objection shall be in writing in the prescribed form accompanied by particulars containing a concise statement of the circumstances in which the objection is made and the relief or order which the objector claims.

Section 52 provides that the Director shall within fourteen days after the receipt of an objection in the prescribed form, give a written answer to the objection, varying or upholding his decision and giving reasons for the decision objected to. An objector may, within thirty days of the Director’s reply being received, appeal to the Industrial Court (now ELRC) against such decision.

Enforcement of WIBA Awards

The Court of Appeal in Charles v Cheto [2025] KECA 784 has decisively addressed longstanding ambiguities surrounding the enforcement of awards under WIBA. The Court affirmed that enforcement of the award lies with the Employment and Labour Relations Court, rooted in Article 162(2)(a) of the Constitution, section 12 of the ELRC Act, and section 86 of the Employment Act.

The Court provided a cogent and workable framework for enforcement:

a. Enforcement is to be initiated through miscellaneous or ordinary causes in the ELRC, strictly confined to matters of enforcement.

b. The ELRC’s role is strictly limited to adoption; it cannot entertain factual or merit-based challenges to the Director’s award.

c. In the absence of any valid objection to the award, adoption is a matter of course.

d. Once adopted, the award assumes the character of a court judgment and is executable through ordinary civil execution proceedings.

Crucially, the Court held that where the statutory window for objecting or appealing the Director’s award has lapsed, the only remedy available to an aggrieved party is judicial review. The Judicial Review should seek quashing of the award and must be pursued before adoption proceedings are concluded. The Court sternly rebuked any strategy designed to delay enforcement, emphasising that “no second bite at the cherry” now rings truer than ever .

Employer Liability and Exclusivity of WIBA

Section 16 of WIBA provides that no action shall lie by an employee or any dependant of an employee for the recovery of damages in respect of any occupational accident or disease resulting in the disablement or death of such employee against such employee’s employer, and no liability for compensation on the part of such employer shall arise save under the provisions of this Act.

The Supreme Court in Law Society of Kenya held that a plain reading of section 16 reveals that its intention is not to limit access to the courts but to create a statutory mechanism where any claim by an employee under the Act was subject, initially, to a process of dispute resolution starting with an investigation by DOSH and thereafter, under section 52, an appeal mechanism to the ELRC. The practical outcome is that claims in respect of occupational accident or disease which fall within the ambit of WIBA must follow the route to compensation prescribed by WIBA.

However, courts have distinguished between injuries that fall within WIBA’s scope and those that do not. In Margaret Wairimu Ndung’u v Safaricom Kenya Plc Limited [2021] KEHC 6233 (KLR), the court declined a preliminary objection based on WIBA where the claimant was not seeking work injury benefits but rather compensation and damages arising out of what she perceived to have been unlawful and unfair retirement on medical grounds.

Strategic Implications for Practitioners

Prompt Reporting is a must. Employers must report accidents to DOSH within 7 days. Failure to do so may constitute an offence under section 22.

Medical Bills Must Be Paid Immediately. The obligation under section 47 is immediate and ongoing. Employers cannot defer payment until a formal claim is lodged.

Objections Must Be Filed Within Statutory Timeframes. The Charles v Cheto decision makes clear that unchallenged WIBA awards carry the full weight of the law. Parties cannot spring objections at the enforcement stage. Compliance with WIBA’s tight objection and appeal deadlines is non-negotiable.

Second Medical Examinations Require Director’s Approval. Employers must not conduct medical examinations of injured employees without the Director’s approval. Such examinations are illegal and any report obtained through them will not be considered by the court.

Judicial Review is the Sole Post-Limitation Remedy. Where the statutory window for objecting or appealing has lapsed, the only remedy available is judicial review. This must be pursued before adoption proceedings are concluded.

Coverage Under WIBA is a Question of Fact. The test for compensability is whether the accident arose “out of and in the course of employment.” This is a fact-specific inquiry. Employers should carefully assess each incident to determine whether it falls within WIBA’s scope.

Nature of the Claim Determines Jurisdiction. If the claim is not for work injury benefits but for other employment-related remedies, the court may retain jurisdiction even if the claimant mentions occupational injury in their pleadings.

Conclusion

In essence, from the moment an injury occurs, the employer is legally obligated to act. The victim should report the injury immediately. The employer must then provide first aid, arrange transport, report the incident to the authorities within a week, and pay all necessary medical bills as they arise. The responsibility for medical bills is immediate and continuous. The process for formal disability compensation follows a separate, longer timeline, but the duty to provide and fund medical care is instantaneous and absolute.

The Supreme Court has settled the constitutional validity of WIBA, and the Court of Appeal has clarified the enforcement mechanism for awards. Employers must comply with statutory deadlines and cannot resist enforcement on merits once adoption is underway. For employees, the path to compensation is clear: report to the employer, lodge a claim with the Director, and, if necessary, seek enforcement through the ELRC.

Authored by Benson Odiwuor Otieno; Advocate of the High Court of Kenya

This article is a publication of the Litigation Practice Notes series, featured in The BOLD Newsletter. For questions, clarifications, or suggestions on this or related subjects, contact the author directly at insights@bensonodiwuor.com/ info@bensonodiwuor.com``