Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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

Legislative reform. In its previous comments, the Committee noted the Government’s indication that it was in the process of amending the Work Injury Benefits Act, 2007 (WIBA, 2007). It notes that the Government indicates in its report that it has put effort towards development of a new legislation that will address the gaps in the current law and replace the WIBA and that the Bill is yet to be tabled in Parliament. The Committee hopes that this new piece of legislation will take duly into account the comments it has been providing in order to give full application to the Convention.

Article 5 of the Convention. Payment of compensation for permanent incapacity or death 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 if the competent authority is satisfied that the lump sum will be properly utilized. The Committee notes that the Government does not indicate whether the new Bill will regulate a compensation in the form of a periodical payment. It therefore requests the Government to take advantage of the ongoing legislative reform to ensure full compliance with Article 5 and to provide information on progress made in the reform.

Articles 9 and 10. Free of charge medical, surgical and pharmaceutical aid. In its previous comments, the Committee noted that section 47 of the WIBA, 2007, provides that an employer must defray reasonably incurred medical expenses which occurred after an occupational accident. The Government had indicated in previous reports that the term “reasonable expenses” would be defined on the occasion of the review of the WIBA, 2007, so as to include all medical intervention necessary. The Committee welcomes the Government’s indication that Clause 55 of the Bill would contain a list of the expenses incurred by an employee as the result of an accident arising out of, and in the course of, the employee’s employment to be defrayed by the employer.

Article 11. Compensation of industrial accidents in the event of the insolvency of the employer or insurer. The Committee notes that the WIBA, 2007, does not provide arrangements aiming to ensure in all circumstances, in the event of the insolvency of the employer or insurer, the payment of compensation to workers who suffer personal injury due to industrial accidents. The Committee requests the Government to take the necessary measures in the context of the ongoing legislative reform to ensure that provision is made for the payment of compensation to the victims of occupational accidents in case of insolvency of the employer.

The Committee has been informed that, based on the recommendations of the Standards Review Mechanism Tripartite Working Group (SRM TWG), the Governing Body has decided that member States for which the Convention is in force should be encouraged to ratify the more recent Employment Injury Benefits Convention, 1964 [Schedule I amended in 1980] (No. 121), or the Social Security (Minimum Standards) Convention, 1952 (No. 102) (Part VI) (see GB.328/LILS/2/1). Conventions Nos 121 and 102 reflect the more modern approach to employment injury benefits. The Committee therefore encourages the Government to follow up the Governing Body’s decision at its 328th Session (October–November 2016) approving the recommendations of the SRM TWG and to consider ratifying Convention No. 121 and/or Convention No. 102 (Part VI) as the most up-to-date instruments in this subject area.

[The Government is asked to reply in full to the present comments in 2020.]