Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

With reference to its observation, the Committee asks the Government to indicate the measures taken or envisaged in order to adopt the necessary legislative amendments and technical regulations, including as regards sections 30 and 47 of the Work Injury Benefits Act (WIBA), 2007, so as to be able to report real progress on the following issues which were the subject of the Committee’s comments for a number of years.

Articles 9 and 10. Free of charge medical, surgical and pharmaceutical aid. The Committee notes the Government’s indication that currently there is no provision or arrangement explicitly requiring the employer to meet the medical aid bills before a claim for compensation has been lodged. Section 47 of WIBA, 2007, providing that an employer must defray reasonably incurred medical expenses occurred after an occupational accident, does not specify the stage at which the employer is supposed to meet his/her obligation to defray such expenses. The Government adds that the enforcement of section 47 in line with this provision of the Convention is a challenge until the WIBA, 2007, is amended or subsidiary regulations adopted to implement it and guarantee compliance with the principle of free of charge medical, surgical and pharmaceutical aid to the victims of occupational accidents. Consideration will be given to this question during the review of the WIBA, 2007, to amend the Act in order to give the Director of Occupational Safety and Health Services explicit powers to prosecute for non-compliance with the Act.

The Government further indicates that the term “reasonable expenses” incurred by victims of occupational accidents used by section 47 of the WIBA, 2007, has voluntarily not been defined. It undertakes, however, to give consideration as to how best to define this term on the occasion of the review of the WIBA, 2007, so as to include all medical intervention necessary to ensure quick and complete recovery and to provide artificial limbs, skilled nursing services, dental, medical, surgical or hospital treatment; the supply of medicine and surgical dressing; travelling and subsistence in connection with the employee’s journey to and treatment in Kenya; and the supply, maintenance, repair and replacement of artificial limbs, crutches and other applicances and apparatus.

Article 5 of the Convention. Payment of compensation in the form of periodical payments. In its previous comments, the Committee noted that, in accordance with section 30 of the WIBA, 2007, an employee who suffers permanent disablement is entitled to a lump sum payment equivalent to 96 months’ earnings. It invited the Government to review the WIBA, 2007, so as to compensate victims of occupational accidents suffering permanent incapacity, or their dependants in cases of fatal accidents, with periodical payments and to reserve the compensation in the form of 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.

In reply to these comments, the Government indicates that, in order to comply with this provision of the Convention, an amendment of section 30 of the WIBA, 2007, or the adoption of appropriate regulations is necessary. Currently, periodical payments are made in respect of minor dependants through the public trustee, in conformity with section 36(1) of the WIBA, 2007, authorizing the Director of Occupational Safety and Health Services to make decisions as to the method of payment (whether in lump sum or in instalments).The Government indicates that this section could be used to allow payment of compensation in the form of periodical payments but recalls that this provision applies only where individual claims have been filed or where the Director has intervened for reasons he deems to be sufficient to allow for payment of the benefits in instalments. In doing so, the Director must ensure that benefits are paid within 120 days (section 26(4) and (5) of the WIBA, 2007). Therefore, consideration will be given to these issues during the review of the WIBA, 2007, which excludes periodical payments, to see how best the Act can be aligned with this provision of the Convention.