Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

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

The Committee notes the adoption of the Work Injury Benefits Act which replaced the Workmen’s Compensation Act as of June 2008 and addresses certain issues previously raised as regards the manner in which the Convention is implemented in the country. The necessary regulations for the effective implementation of the new Act are yet to be developed and the social partners are being consulted on the matter. The Committee encourages the Government to rapidly adopt the necessary implementing regulations and to give favourable consideration to the following remarks.

Article 5 of the Convention. Payment of compensation in the form of periodical payments. In accordance with section 28 of the Work Injury Benefits Act (WIBA), an employee who suffers temporary total or partial disablement due to an accident that incapacitates the employee for three days or longer is entitled to receive a periodical payment. In case of permanent disablement, section 30 of the Act maintains the payment of a lump sum granted under the previous system, only increasing the amount of the compensation granted to 96 months’ earnings as opposed to the 48 months granted under the previous system. While it welcomes this increase, the Committee wishes to recall that Article 5 of the Convention guarantees that the compensation payable to the injured workers, or their dependants, where permanent incapacity or death results from the injury, needs to be paid in the form of periodical payments; it may only be wholly or partially paid in a lump sum, if the competent authority is satisfied that it will be properly utilized. The Committee therefore once again invites the Government to seize the opportunity of the ongoing reform so as to provide for the payment of the compensation in a lump sum only for injured persons with a slight degree of incapacity or for whom the competent authority is satisfied that the lump sum will be properly utilized. Other victims of occupational accidents suffering permanent incapacity or their dependents in cases of fatal accidents need to be provided with periodical payments.

Articles 9 and 10. Medical, surgical and pharmaceutical aid free of charge. Section 47 of WIBA provides that an employer must defray any expenses reasonably incurred by an employee as the result of an accident arising out of, and in the course of, the employer’s employment in respect of, inter alia, dental, medical, surgical and hospital treatment, the supply of medicine and surgical dressing, as well as the supply, maintenance, repair and replacement of artificial limbs, crutches and other appliances and apparatus. The Committee asks the Government to indicate the manner in which this provision gives effect to the principle of free of charge medical, surgical and pharmaceutical aid to the victims of occupational accidents without any participation, even temporary, to the cost of such aid by the victims. Please also clarify how the term “reasonable expenses” incurred by victims of occupational accidents is defined and applied in practice given that the Convention guarantees injured workers the right to such medical aid as is recognized to be necessary in consequence of their accidents.