Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

Workmen's Compensation (Accidents) Convention, 1925 (No. 17) - Kenya (Ratification: 1964)

1. In reply to the Committee's previous comments, the Government states in its report and in the information supplied to the Conference Committee in June 1992 that it has found it necessary to re-examine the proposed legislation on work injuries in order to ensure that there is total harmony with the Convention and that every effort has been made to incorporate the Committee's comments during the revision of the text of the draft legislation on the Work Injury Benefits (Insurance) Scheme. The Committee notes this information. It has also examined the new draft legislation transmitted by the Government. In this context, it notes with interest that section 52(2) of the above draft legislation introduces a provision which explicitly lays down the right of a worker who has been a victim of an industrial injury whose degree of incapacity is subsequently increased by a worsening of his condition, to apply for a revision of the level of the pension, in accordance with Article 8 of the Convention. However, the Committee is bound to note that the text of the new draft legislation still does not respond to the requirements of the Convention with regard to certain other points that it raised in its observations in 1991 and 1992. The Committee therefore considers it necessary to draw the Government's attention once again to the following divergencies between the draft legislation and the Convention.

Article 2 of the Convention. Section 22(2) of the draft text excludes the compensation of industrial accidents for workers ordinarily employed outside Kenya but temporarily employed in Kenya by an employer who carries on business chiefly outside Kenya, unless an agreement has been concluded to the contrary. This exclusion is not covered by the cases mentioned in Article 2, paragraph 2, of the Convention.

Article 5. (a) In its previous comments, the Committee drew the Government's attention to the fact that the provisions of the previous draft text provided, contrary to the Convention, for the payment of a lump sum where a degree of incapacity is less than 40 per cent or where the amount of the compensation is less than a certain sum, under conditions which are not authorized by this provision of the Convention. The Committee notes in this context that section 56(1) of the latest draft text supplied by the Government prohibits the commutation into a lump sum of a pension in cases in which the degree of permanent disability is higher than 20 per cent. It therefore hopes that section 48(1)(c) and (d) will be brought into line with section 56(1) so as to provide for the payment of compensation in the form of a lump sum only when the degree of incapacity does not exceed 20 per cent.

(b) Furthermore, the Committee considers that it would be desirable to replace the term "accident" by the term "death" in section 4(1)(b) and section 50(1), in order to take into account situations in which the death of a victim of an industrial accident occurs after the accident.

Article 7. In view of the fact that the additional compensation to be provided in cases where the incapacity requires the constant help of another person must be paid, in accordance with this provision of the Convention, for as long as the state of health of the injured person requires it, the Committee considers that it would be desirable to delete from section 57(1) of the draft text the words "as may be required for a specified period which shall be reviewed from time to time".

Articles 9 and 10. (a) Section 69(2) of the new draft text provides for the fixing of maximum amount of compensation for expenses, particularly for medical, surgical, pharmaceutical and hospital treatment, and the supply and replacement of artificial limbs and surgical appliances, whereas the determination of a ceiling of this type is not authorized by the Convention, as the Committee has emphasized for many years.

(b) Furthermore, the Committee wishes to draw the Government's attention to the fact that the medical aid provided for in Article 9 of the Convention must be provided to injured workmen irrespective of the duration of their incapacity for work. It therefore considers that it would be desirable to delete from the definition of the term "accident" in section 2 of the draft text the terms "or results in that worker being incapacitated for work for more than three consecutive days excluding the day of the accident and any Sunday, or if Sunday is not a rest day, one rest day", particularly since section 36(2) of the draft text already provides for a waiting period of three days for the payment of cash benefit when the incapacity lasts for less than three weeks.

The Committee hopes that the Work Injury Benefits (Insurance) Scheme Bill, in its final version, will take into account the above comments and that it will also take into consideration the other points raised by the ILO in its communication dated 12 October 1990, and in particular point 1(b) concerning the extension of the definition of the term "accident" in order to include commuting accidents. It also hopes that it will be possible to adopt the above draft text in the near future in order to give full effect to the Convention. It requests the Government to supply information on any progress achieved in this respect and to supply the text of the Act when it has been adopted.

2. The Committee recalls that, in its previous report, the Government stated that it had the intention of immediately updating the Workmen's Compensation Act which is currently in force with a view to meeting the requirements of Article 5 of the Convention, as well as raising the level of payments for medical, surgical or pharmaceutical aid in the event of industrial accidents, in order to give better effect to Articles 9 and 10 of the Convention. The Committee would be grateful if the Government would indicate in its next report whether the above amendments have been adopted.

The Committee also wishes to draw the Government's attention to the possibility of availing itself of the technical assistance of the Office for the implementation of the new system of compensating industrial accidents.