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

Individual Case (CAS) - Discussion: 1994, Publication: 81st ILC session (1994)

A Government representative indicated that the present Workmen's Compensation Act, Chapter 236, Laws of Kenya, was first enacted in 1949, and has since been amended several times, the latest amendment having been made in 1987 aiming at providing more benefits to workers in view of the present-day high rate of inflation and the rise in the cost of living. In 1990, following the detailed discussion by the Tripartite Labour Advisory Board, the Government had decided to replace the above Act with the proposed Work Injury Benefits (Insurance) Scheme. The main aims of the proposed changes were: (i) to ensure that all workers were insured against employment accidents; (ii) to convert the present lump-sum payment into periodical payments, in conformity with the requirements of Article 5 of the Convention, as pointed out by the Committee of Experts; (iii) to improve on the present scale of medical aid and supply and repair of surgical appliances; and (iv) to increase the level of benefits in keeping with the rising cost of living generally. The Government representative recalled that the original text of the proposed legislation was sent to the ILO for detailed study and advice in order to make sure that the final text to be submitted to Parliament was in full conformity with the relevant provisions of the Convention. As a result of the comments made by the Committee of Experts and by the Office, the Government found it necessary to revise the original text of the proposed Work Injury Benefits (Insurance) Scheme in order to ensure full harmony between this legislation and Convention No. 17. In particular, the latest comments of the Committee of Experts concerned the following areas, all of which have been sufficiently covered in the new draft Bill: (i) Article 2 of the Convention which covers compensation of industrial accidents for workers ordinarily employed outside but temporarily employed in Kenya by an employer who carries on business chiefly outside Kenya; (ii) Article 5 of the Convention concerning the payment of lump-sum compensation only when the degree of incapacity does not exceed 20 per cent recommended by the Committee of Experts; (iii) Article 7 where the incapacity required a payment for the services of a constant helper; (iv) Articles 9 and 10 concerning compensation for expenses for medical, surgical, pharmaceutical and hospital treatment, and the supply and replacement of artificial limbs and surgical appliances. The views expressed by the Committee of Experts in its 1994 report would be carefully considered before the final Bill was passed into law, and his Government would undertake to ensure that the necessary amendments were effected in the proposed Work Injury Benefit (Insurance) Scheme in order to give better compliance to Articles 2, 5, 7, 9 and 10 of the Convention.

The Workers' members stated that while this case had not been previously discussed in this Committee, there had been observations and direct requests made by the Committee of Experts for many years since 1967. For many years the Government had recognized that national legislation was not in conformity with various provisions of the Convention and already in 1991 it had expressed the intention to immediately bring its legislation up to date in accordance with the requirements of Articles 5, 9 and 10 of the Convention. In its report of 1994, the Government stated that it was necessary to once again submit the draft legislation to the Tripartite Labour Advisory Board and confirmed its will to put the legislation into full conformity with the Convention. Acknowledging these facts, the Workers' members pointed out that various aspects of the draft legislation still gave rise to important problems in relation to the Convention: section 22 of the draft Bill concerning the exclusion of workers temporarily employed in Kenya, with respect to Article 2 of the Convention; section 48 concerning the payment of compensation in the form of a lump sum in place of periodical payments, with respect to Article 5 of the Convention; sections 4 and 50 which did not explicitly take into account the situation in which the death of a victim of an industrial accident occurred after the accident, with respect to Article 5 of the Convention; section 57 setting time-limits for the payment of additional compensation in cases where help of another person was required, with respect to Article 7 of the Convention; section 69 which fixed the maximum amounts for the reimbursement of medical, hospital and other expenses, with respect to Articles 9 and 10 of the Convention prohibiting such limits; section 36 laying down a three-day waiting period, with respect to Article 9 of the Convention. It was evident and it was recognized by the Government itself that the eventual approval by the authorities of the present draft legislation would only bring about a very partial solution to the problems of non-application of the Convention. In conclusion, the Workers' members insisted that the Government should comply with the observations of the Committee of Experts and that it should provide precise information. They also supported the suggestion made by the experts concerning the possibility of using the technical assistance of the Office.

The Employers' members recalled that, since 1981, there had been observations made by the Committee of Experts on this subject, and that in 1991 the Government had provided written statements to this Committee which, however, had not been discussed at the time. Referring to the detailed indications given by the Workers' members concerning discrepancies between the domestic legislation in Kenya and the requirements of the Convention, the Employers' members stressed that apart from the minor amendments which were required, there was a need for some significant modification of the legislation. Already in 1991, the Government indicated that it was prepared to meet all the requirements of the Committee of Experts in order to fully implement the Convention, and now the point had been reached where these promises needed to be fulfilled. The Employers' members associated themselves with the comments made by the Workers' members and by the Committee of Experts and emphasized that, if necessary, the assistance of the Office should be requested in order to ensure an expeditious and comprehensive solution of the existing problems.

The Government representative assured the Committee that he had taken very careful note of all the views and points raised during the discussion which would be conveyed to his Government for careful study and further necessary remedial action and, if need be, for further technical assistance in finalizing the matter.

The Committee took note of the information provided by the Government representative as well as of the discussion which took place. The Committee noted that certain measures were envisaged but stressed that specific action had yet to be undertaken in such a way as to eliminate all discrepancies noted by the Committee of Experts, thus giving full effect, in law and in practice, to the relevant provisions of the Convention. In this respect the Committee also took note of the willingness of the Government to remedy the situation. The Committee reminded the Government that it would be useful to avail itself of the technical assistance which could be provided by the Office. The Committee hoped that it would be able to note substantial progress in the very near future.

Individual Case (CAS) - Discussion: 1991, Publication: 78th ILC session (1991)

The Government has communicated the following information:

Articles 2, 5, 6, 7, 8 and 9 of the Convention

In an effort to ensure Kenya's full compliance with the requirements of the Convention, a draft Bill was prepared and circulated and a copy sent to the ILO for the necessary advice and comments. The draft Work Injury Benefits (Insurance) Scheme Act is intended to replace the current Workmen's Compensation Act Cap. 236, Laws of Kenya, and the ILO has already furnished the Government with very useful comments. Some of these comments have necessitated redrafting the "draft" Bill, in order to ensure that the final Act will be in full compliance with the Convention.

The redrafted Bill (i.e. incorporating the various comments as raised by the Committee of Experts in their 1991 observations) is now being rediscussed by the National Tripartite Labour Advisory Board, before submission to Parliament. An advanced copy of the said draft Bill is sent to the ILO.

The main objectives of the proposed changes will be to ensure, among others, the following:

(i) to ensure that all workers were insured against employment accidents;

(ii) to convert the present lump-sum payments into periodical payments in conformity with the requirements of Article 5 of the Convention;

(iii) to improve on the present scale of medical aid and supply and repair of surgical appliances; and, finally,

(iv) to increase the level of benefits in keeping with the rising cost of living generally.

Reasons behind the government proposal to set up a Work Injury Benefits (Insurance) Scheme " Background information

The current Workmen's Compensation Act Cap. 236 was first enacted in 1949, and has been amended several times, the latest amendment having been done in 1987. The provisions of this Act are today considered outmoded and insufficient to cater for adequate and effective protection of workers in all sectors of the economy, in the country's current stage of development because:

1. It is not a legal requirement under the existing Act to insure workers, except for those employees working in construction and road transport industries. This, therefore, means that a large number of workers are not adequately protected in case of injuries sustained in the course of their employment. This applied equally to dependants in case of death.

2. In addition to inadequate protection, payment of compensation is left to the employer under the law. Experience has, however, shown that this is not a very satisfactory state of affairs. This is particularly so where an employer becomes insolvent as pointed out by the ILO, or decides to simply abscond or use other delaying tactics to avoid compensation.

3. A few cases on record where reporting of accidents by employers has been deliberately withheld or delayed, contrary to legal requirements, to avoid payment of compensation.

4. The existing Act does not provide for the promotion of rehabilitation of persons who suffer personal injury by accident.

In order to overcome the apparent weakness created by the existing system and legal provisions, the current Workmen's Compensation Act Cap. 236, Laws of Kenya, needs complete overhaul, so as to provide for the creation of a better system which will be effective, and quick in settlement of claims in addition to providing more and comprehensive benefits to workers.

This is one reason as to why the Government has taken a decision to set up a Work Injury Benefits (Insurance) Scheme or Fund. The scope and purpose of the Fund will be:

(a) to provide annuity to incapacitated employees, for the duration of the injury and/or to provide relief to dependants of deceased employees;

(b) to promote rehabilitation of persons who suffer personal injury by accidents arising out of and in the course of their employment;

(c) to promote safety and health of workers at places of employment;

(d) to provide for the compensation of persons who contract, or die of, a prescribed disease (i.e. occupational diseases).

The proposed Scheme or Fund will derive its finances mainly from:

(a) levies payable by employers;

(b) money appropriated by Parliament for this purpose to cover government employees. It should be pointed out here that, currently, some K£300,000 to K£400,000 is voted annually by Parliament under the Ministry of Labour vote for compensating civil servants who fall under the existing Workmen's Compensation Act.

In order to protect the proposed Fund agaisnt large claims, it will be necessary to reinsure it. Any surplus in the proposed Fund, after meeting all its liabilities may and will be invested as directed by the Government.

The Government undertakes to report in full on this Convention, during the period ending 15 October 1991.

Individual Case (CAS) - Discussion: 1990, Publication: 77th ILC session (1990)

The Government has communicated the following information:

As the Government previously indicated in its reports, proposals were underway to transform the National Social Security Fund into a pension scheme. This would have meant incorporating the proposed workmen's injury benefits scheme into the National Social Security Act. The main objectives of the proposed changes were: (1) to ensure that all workers were insured against employment accidents; (2) to convert the present lump sum payment into periodical payments in conformity with the requirements of Article 5 of the Convention; (3) to improve on the present scale of medical aid and supply and repair of surgical appliances; and (4) to increase the level of benefits in keeping with the rising cost of living generally.

The Social Security Bill was finally drafted and presented to Parliament but was later shelved for technical reasons until the full implications of the proposed changes had been studied. It was later decided that all the intended changes affecting the application of the Convention should be introduced through the transformation of the existing Workmen's Compensation Act.

Arising out of the various comments by the Committee of Experts (i.e. regarding practical application of the Convention and especially Articles 5, 9, 10 and 11), the Government recently decided to update the existing Workmen's Compensation Act, Chapter 236, immediately with a view to meeting the requirements of Article 5 of the Convention; and raising the levels of payments with regard to medical, surgical and pharmaceutical aid recognised to be necessary in consequence of accidents.

The Government points out that as a result of the various comments by the Committee of Experts, it recently revised the above Act (see Statute Law (Miscellaneous Amendments) Act, No. 220, of 1987). The above amendments became operational with effect from 31 December 1987. A copy of the new Act has been communicated.

Under Part III of the updated Chapter 236 (on medical aid), newly revised medical aid rates were also announced in respect of the supply, maintenance, repair and renewal of any artificial appliances or apparatus to an amount not exceeding ten thousand Kenyan shillings in all.

Due to a variety of reasons (including the various observations by the Committee of Experts regarding application of the Convention), the Government recently decided to transform the current Workmen's Compensation Act into a "Work Injury Benefits (Insurance) Scheme". Once the new scheme is legally established, all liability under the current Workmen's Compensation Act will be paid from the Fund, including cases where an employer becomes insolvent or bankrupt. The above will fully take care of the views expressed by the Committee of Experts under Articles 9, 10 and 11 of the Convention.

The views of the Committee of Experts have been duly taken into accont in the new draft legislation on the proposed Workmen's Compensation Insurance Scheme, to ensure that in all circumstances, in the event of the insolvency of the employer or insurer, the payments of compensation to the victims of employment accidents or their dependents is guaranteed. In future such responsibility will lie with the proposed insurance scheme.

The Government recalls that the current Workmen's Compensation Act, Chapter 236, was first enacted in 1949 and has been amended several times since then, most recently in December 1987. The provisions of this Act are today considered outdated and insufficient to cater for adequate and effective protection of workers in all sectors of the economy in the country's current stage of development, because: (i) It is not legal requirement under the existing Act to insure workers, except those employees working in construction and road transport industries. This means that a large number of workers are not adequately protected in case of injuries sustained in the course of their employment. This applies equally to dependents in case of death. (ii) In addition to inadequate protection, payment of compensation is left to the employer under the law. Experience has, however, shown that this is not a very satisfactory state of affairs. This is particularly so where an employer becomes insolvent, or decides simply to abscond or uses other delaying tactics to avoid compensation. (iii) A few cases are on record where reporting of accidents by employers has been deliberately withheld or delayed, contrary to legal requirements, to avoid payment of compensation. (iv) The existing Act does not provide for rehabilitation of persons who suffer personal injury by accident.

In order to overcome the apparent weaknesses created by the existing system and legal provisions, the Workmen's Compensation Act, Chapter 236, needs a complete overhaul to provide for a better system which will be effective and quick in settlement of claims in addition to providing more and compehensive benefits to workers. This is one reason why the Government has proposed to set up a "Work Injury Benefits (Insurance) Scheme". The scope and purpose of the scheme will be: (a) to provide an annuity to incapacitated employees for the duration of the injury and/or to provide relief ot dependents of deceased employees; (b) to promote rehabilitation of persons who suffer personal injury arising out of, and in the course of their employment; (c) to promote safety and health of workers at places of employment; (d) to provide for the compensation of persons who contract or die of prescribed diseases.

The proposed scheme will derive its finances mainly from levies payable by employers and money appropriated by Parliament for this purpose to cover Government employees. Currently, some KL 300,000/KL 400,000 is voted annually by Parliament under the Ministry of Labour for compensating civil servants who fall under the existing Workmen's Compensation Act. In order to protect the proposed scheme fund against large claims, it is necessary to re-insure it. Any surplus in the proposed scheme after its legal liabilities will be invested as directed by the Government.

The Government has sent to the ILO a copy of the newly revised Workmen's Compensation Act, Chapter 236, and the draft bill on the proposed Work Injury Benefits (Insurance) Act. The proposed legislation is intended to meet the comments raised by the Committee of Experts regarding practical implementation of the Convention. It is likely to be submitted to Parliament before the end of December 1990. The Government hopes to receive comments on the proposed legislation from the Office or from the Committee of Experts.

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Legislative reform. Further to its previous comments, in which it took note of the ongoing process of amendment of the Work Injury Benefits Act, 2007 (WIBA, 2007) and development of a new legislation that would address current gaps, the Committee notes the indication provided by the Government in its report that a Bill is now before the National Treasury to seek concurrence on the financial implications if enacted. The Committee further notes with interest that the Government has initiated a process to develop the Occupational Diseases Fund established by the Bill into a social insurance-based employment injury scheme, and that the first high-level Social dialogue meeting to address this matter was held on 23 September 2020. The Committee expects that these legislative developments will give full effect to the Convention and that its comments will be duly taken into account for this purpose. The Committee requests the Government to keep it informed of the adoption of the bill and of the establishment of the Occupational Diseases Fund, and of the adoption of any other measures related to their implementation.

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 suffered permanent disablement was 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 limit compensation by way of lump sum to cases where the competent authority was satisfied that it would be properly utilized. The Committee notes the indication provided by the Government that the new social insurance-based employment injury scheme “will introduce periodical payments for victims of occupational accidents suffering permanent incapacity or survivors of victims of occupational fatalities”, and that in cases of payment of a lump sum, the Government agency under which the scheme will be administered will ensure that compensation will be paid on assurance that the lump sum will be properly utilized. The Committee hopes that the Government will take the necessary measures to ensure that permanently injured workers or their dependents, as the case may be, are provided with compensation in the form of periodical payments, in accordance with Article 5 of the Convention, under the new employment injury insurance scheme. The Committee also hopes that, in cases where compensation is paid in the form of a lump sum, the Government will put in place the necessary safeguards to ensure that it is properly used by beneficiaries. The Committee requests the Government to provide information on the measures taken for these purposes upon adoption of the new employment injury insurance scheme.

Articles 9 and 10. Provision of medical, surgical and pharmaceutical aid free of charge. 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 Committee further noted the indication by the Government that the term “reasonable expenses” would be defined at the occasion of the review of the WIBA, 2007, so as to include all medical intervention necessary and welcomed 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. The Committee hopes that the Government will take the necessary measures, without further delay, to ensure that injured workers are provided, free of charge, with all the medical, surgical and pharmaceutical aid as well as with the artificial limbs and surgical appliances that are recognized to be necessary in consequence of accidents at work, without limitation of cost, with a view to give full effect to Articles 9 and 10 of the Convention. The Committee requests the Government to provide information on the legislative provisions and other measures adopted or envisaged for that purpose.

Article 11. Compensation of industrial accidents in the event of the insolvency of the employer or insurer. In its previous comments, the Committee noted that the WIBA, 2007, did not provide the necessary arrangements 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, as required by Article 11 of the Convention. The Committee hopes that the Government will take advantage of the ongoing legislative reform to address this issue and requests the Government to provide information on the measures taken or envisaged to ensure that victims of occupational accidents and their dependents are provided with the compensation they are entitled to in all circumstances, in line with Article 11 of the Convention.

The Committee has been informed that, based on the recommendations of the Standards Review Mechanism Tripartite Working Group (SRM Tripartite Working Group), 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), and accept its 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 Tripartite Working Group and to consider ratifying Convention No. 121 or Convention No. 102 (Part VI) as the most up-to-date instruments in this subject area, taking opportunity of the ongoing legislative review and of the establishment of an employment injury insurance scheme.

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

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.]

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

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.

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

The Committee notes that the Government is in the process of amending the Work Injury Benefits Act, 2007 (WIBA, 2007) so as to align it with the National Constitution of 2010 and the National Occupational Safety and Health Policy, as well as with the Convention, where necessary. The Committee also notes the annual report of the Directorate of Occupational Safety and Health Services provided by the Government in appendix to its report. According to this report, there are about 140,000 workplaces in the formal sector, while the total workforce in Kenya is estimated at 10.3 million in both formal and informal sectors. However, only a total of 6,023 accidents were reported during the year (249 of which were fatal). The report explains in this respect that whereas reporting of occupational accidents is a requirement under the WIBA, 2007 reporting remained poor and in most cases not done within the stipulated time. In addition, non availability of transport for field stations, inadequate financing and staffing to deal with increasing workload, together with the need to provide continuous technical training for occupational safety and health officers were identified as major challenges.

Taking note of the above, the Committee wishes to acknowledge the importance for the application of the Convention in practice of strengthening the human and material resources made available to the competent authorities in charge of monitoring the implementation of the national legislation in the area of employment injuries. The Committee considers in this respect that the work injury benefits scheme in Kenya which settles 768 compensation cases per year for a workforce of over 10 million does not appear to fulfil the objective of the Convention of providing compensation to all workers who suffer personal injury due to an industrial accident. The Committee therefore requests the Government to provide information on any measures taken or envisaged in this respect in the light of the main conclusions of the report of the Directorate of Occupational Safety and Health Services.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

Repetition

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.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

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

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.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s information that there has been no change in the legislation on workmen’s compensation in the period covered by the report. The Government also indicates that it is enclosing a copy of the Work Injury Bill currently before the competent authority, which is to replace the Workmen Compensation Act (Cap. 236). However, the text was not included with the report received by the Office.

The Committee has been raising several issues about application of the Convention for many years, which is why the case of Kenya was examined by the Conference Committee in 1994. On that occasion, the Government undertook to take the necessary steps to ensure that full effect was given to the Convention in the national legislation. The Committee is nonetheless bound to note that, since then, it has examined a series of bills and has several times commented that they needed amending in order to give full effect to the Convention. Despite earlier assurances by the Government, none of the bills has as yet been enacted and promulgated. In these circumstances, the Committee can but renew its hope that the Government will be in a position to provide in its next report information on progress made in the enactment of new legislation on workmen’s compensation, and to send a copy of it to the Office. It hopes that the new legislation will give full effect to all provisions of the Convention and particularly to Article 5 (principle of compensation payable to the injured workman or his dependants in the form of periodical payments), Article 9 (entitlement to medical aid free of charge and to such surgical and pharmaceutical aid as is recognized to be necessary in consequence of accidents), Article 10 (supply and normal renewal, by the employer or insurer, of such artificial limbs and surgical appliances as are recognized to be necessary), and Article 11 (guarantees in the event of the insolvency of the employer or insurer), to which the Committee referred in its previous comments. Lastly, it would point out that the Government may seek technical assistance from the Office in setting up a new system of insurance for workmen’s compensation.

[The Government is asked to reply in detail to the present comments in 2008.]

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes that the Government’s report merely indicates that the proposed Work Injury Benefits Insurance Bill of 1990 has been withdrawn and that new draft legislation, a copy of which is not appended to the report, covers the provisions of the Convention. In these circumstances, the Committee is bound to recall that it has, for many years, been drawing the Government’s attention to the need to amend the current national legislation, i.e. the Workmen’s Compensation Act, Chapter 136, as amended in 1987, in order to ensure the full application of Articles 5 (principle of compensation payable to the injured workman or his dependants in the form of periodical payments), 9 (entitlement to medical aid free of charge and to such surgical and pharmaceutical aid as is recognized to be necessary in consequence of accidents), 10 (supply and normal renewal, by the employer or insurer, of such artificial limbs and surgical appliances as are recognized to be necessary), and 11 (guarantees in the event of the insolvency of the employer or insurer) of the Convention. The Committee therefore expresses the hope that the Government will take without further delay the measures needed in order to give full effect to the above provisions of the Convention. It would also like to draw the Government’s attention to the possibility of availing itself of the technical assistance of the Office in order to seek the early solution of all the problems involved.

[The Government is asked to reply in detail to the present comments in 2007.]

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

1. For many years the Committee has been drawing the Government’s attention to the need to amend the national legislation (Workmen’s Compensation Act, Chapter 136, as amended in 1987) in order to ensure full application of Articles 5, 9, 10 and 11 of the Convention. In 1990 the Government sent a Bill referred to as the Work Injury Benefits Insurance Scheme. The Committee noted that although the Bill made substantial improvements to the legislation in force, in particular by introducing a social insurance scheme to replace the system of workers’ compensation payable by the employer, it was nonetheless inconsistent with the Convention on a number of points. In its last observation the Committee pointed out that the latest version of the Bill sent by the Government lacked the necessary amendments to eliminate these inconsistencies.

In its last report the Government states that although the Labour Advisory Board has agreed to all the comments made by the Committee, the Government and the social partners are still having difficulty in drafting the abovementioned Bill. The latter will nonetheless be revised in the framework of the comprehensive labour law revision project which is to start soon with the technical assistance of the ILO and in consultation with the social partners.

The Committee notes this information. It hopes that the Government will take all necessary measures to enable the Bill, to which it has been referring since 1990, to be adopted very soon. The Committee trusts that the final version of the Bill will take account of the following comments.

Article 2, paragraph 2, of the Convention. The Committee draws the Government’s attention to section 22(2) of the Bill which, contrary to this provision of the Convention, excludes from compensation for accidents workers ordinarily employed abroad but temporarily employed in Kenya by an employer who carries on business chiefly outside Kenya, subject to international agreements.

Article 5. (a) In its previous report, the Government stated that the final draft of the Bill had been amended to bring section 48 into line with section 56. The Committee hopes that the final version of section 48 will provide for the payment of the compensation in a lump sum only for injured persons whose degree of incapacity does not exceed 20 per cent and for whom the competent authority is satisfied that the lump sum will be properly utilized.

(b) In addition, the Committee recalls that it would be desirable to replace, in section 4(1)(b) and 50(1) of the Bill, the term "accident" by the term "death", so as to take account of cases in which the death of the injured worker occurs after the accident has taken place.

Article 7. The Government stated previously that, although the additional compensation paid in case of incapacity requiring the constant help of another person which is provided for in section 57 of the Bill may be limited to a particular period, the insurance scheme director may extend this compensation depending on the injured worker’s condition. The Committee recalls that the additional compensation must be paid for as long as the injured worker’s state of health so requires. The Committee accordingly hopes that, in practice, the competent authority will make sure at the end of each period for which the additional compensation has been granted that an injured worker, whose state of health so requires, continues to receive the additional compensation for a further period.

Articles 9 and 10. (a) The Committee recalls that section 9(2) of the Bill, which sets a ceiling for the reimbursement of expenses relating, in particular, to medical, surgical, pharmaceutical and hospital treatment, and to the supply and renewal of artificial limbs and surgical appliances, does not comply with this provision of the Convention which guarantees injured workers the right to such medical aid as is recognized to be necessary in consequence of their accidents.

(b) In addition, the medical aid must be granted irrespective of the duration of the injured worker’s incapacity for work and from the day on which the accident occurs. Consequently, in the definition of "accident" given in section 2 of the Bill, the phrase "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" should be deleted. This is all the more necessary as section 36(2) of the Bill already provides for a waiting period of three days for the payment of cash benefits where the duration of the incapacity does not exceed three weeks.

2. The Committee would also be grateful if the Government would provide detailed information on how the Convention is applied in practice including the statistical information requested under Part V of the report form.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes that the Government's report has not been received. It must therefore repeat its previous observation which read as follows:

In response to the Committee's previous comments, the Government specifies that the Work Injury Benefits Insurance Scheme Bill has been amended and forwarded to the competent authorities for enactment. The Committee notes this information. It observes, however, that the Bill provided by the Government does not seem to have incorporated the new amendments. The Committee hopes that the Bill, to which the Government has referred since 1990, will be adopted soon and that it will enable full effect to be given to the provisions of the Convention, by taking into account the following specific points. Article 2, paragraph 2, of the Convention. Further to the Committee's comments, the Government refers to section 22(1) of the Bill which provides for the maintenance of protection in respect of workmen's compensation for accident where a worker is temporarily employed abroad. While noting this information, the Committee recalls that its comments related to section 22(2) of the Bill which, contrary to this provision of the Convention, excluded from compensation for accidents workers ordinarily employed abroad but temporarily employed in Kenya by an employer who carries on business chiefly outside Kenya, subject to international agreements. Article 5. (a) The Government specifies that the final Bill has been amended to bring section 48 into line with section 56. Consequently, the Committee hopes that in its final version section 48 will provide for the payment of the compensation in a lump sum only for victims whose degree of incapacity does not exceed 20 per cent and for whom the competent authority is satisfied that the lump sum paid will be properly utilized. (b) In addition, the Committee recalls that it would be desirable to replace, in sections 4(1)(b) and 50(1) of the Bill, the term "accident" by the term "death", so as to take account of the situations in which the death of an injured workman occurs well after the accident has taken place. Article 7. In response to the Committee's comments, the Government indicates that, although the additional compensation paid in case of incapacity requiring the constant help of another person which is provided for in section 57 of the Bill may be limited to a particular period, the insurance scheme director may extend this compensation depending on the injured worker's condition. The Committee recalls that the additional compensation must be paid for as long as the injured worker's state of health so requires. Consequently, the Committee hopes that, in practice, at the end of each period for which the additional compensation has been granted, the competent authority will ensure that an injured worker whose state of health so requires continues to receive the additional compensation for a further period. Articles 9 and 10. (a) The Committee recalls that section 9(2) of the Bill, which sets a ceiling for the reimbursement of expenses relating, in particular, to medical, surgical, pharmaceutical and hospital treatment, and to the supply and renewal of artificial limbs and surgical appliances, does not comply with this provision of the Convention which guarantees injured workers the right to such medical aid as is recognized to be necessary in consequence of their accidents. (b) In addition, the medical aid must be granted irrespective of the duration of the injured worker's incapacity for work and from the day on which the accident occurs. Consequently, in the definition of "accident", given in section 2 of the Bill, the phrase "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" should be deleted. This is all the more necessary, since section 36(2) of the Bill already provides for a waiting period of three days for the payment of cash benefits, where the duration of the incapacity does not exceed three weeks. The Committee trusts that, in its final version, the Bill will take account of the comments made above and that the Government's next report will provide details of its enactment.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

In response to the Committee's previous comments, the Government specifies that the Work Injury Benefits Insurance Scheme Bill has been amended and forwarded to the competent authorities for enactment. The Committee notes this information. It observes, however, that the Bill provided by the Government does not seem to have incorporated the new amendments. The Committee hopes that the Bill, to which the Government has referred since 1990, will be adopted soon and that it will enable full effect to be given to the provisions of the Convention, by taking into account the following specific points.

Article 2, paragraph 2, of the Convention.Further to the Committee's comments, the Government refers to section 22(1) of the Bill which provides for the maintenance of protection in respect of workmen's compensation for accident where a worker is temporarily employed abroad. While noting this information, the Committee recalls that its comments related to section 22(2) of the Bill which, contrary to this provision of the Convention, excluded from compensation for accidents workers ordinarily employed abroad but temporarily employed in Kenya by an employer who carries on business chiefly outside Kenya, subject to international agreements.

Article 5. (a) The Government specifies that the final Bill has been amended to bring section 48 into line with section 56. Consequently, the Committee hopes that in its final version section 48 will provide for the payment of the compensation in a lump sum only for victims whose degree of incapacity does not exceed 20 per cent and for whom the competent authority is satisfied that the lump sum paid will be properly utilized. (b) In addition, the Committee recalls that it would be desirable to replace, in sections 4(1)(b) and 50(1) of the Bill, the term "accident" by the term "death", so as to take account of the situations in which the death of an injured workman occurs well after the accident has taken place.

Article 7. In response to the Committee's comments, the Government indicates that, although the additional compensation paid in case of incapacity requiring the constant help of another person which is provided for in section 57 of the Bill may be limited to a particular period, the insurance scheme director may extend this compensation depending on the injured worker's condition. The Committee recalls that the additional compensation must be paid for as long as the injured worker's state of health so requires. Consequently, the Committee hopes that, in practice, at the end of each period for which the additional compensation has been granted, the competent authority will ensure that an injured worker whose state of health so requires continues to receive the additional compensation for a further period.

Articles 9 and 10. (a) The Committee recalls that section 9(2) of the Bill, which sets a ceiling for the reimbursement of expenses relating, in particular, to medical, surgical, pharmaceutical and hospital treatment, and to the supply and renewal of artificial limbs and surgical appliances, does not comply with this provision of the Convention which guarantees injured workers the right to such medical aid as is recognized to be necessary in consequence of their accidents.

(b) In addition, the medical aid must be granted irrespective of the duration of the injured worker's incapacity for work and from the day on which the accident occurs. Consequently, in the definition of "accident", given in section 2 of the Bill, the phrase "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" should be deleted. This is all the more necessary, since section 36(2) of the Bill already provides for a waiting period of three days for the payment of cash benefits, where the duration of the incapacity does not exceed three weeks.

The Committee trusts that, in its final version, the Bill will take account of the comments made above and that the Government's next report will provide details of its enactment.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes that a new Work Injury Benefits (Insurance) Scheme Bill has been prepared. The Committee recalls that for many years it has been raising several issues concerning application of the Convention and that this case was discussed in the 1994 Conference Committee. It hopes that these issues will be fully taken into consideration in the adoption of the Bill so as to give full effect to the following Articles of the Convention:

Article 2(2) (including within the normal scope of the scheme workers ordinarily employed outside Kenya but temporarily employed in Kenya by an employer who carries on business chiefly outside Kenya, subject to international agreements).

Article 5 (payment of compensation in periodic form where the degree of incapacity is less than 40 per centum, unless the competent authority is satisfied that the lump sum will be properly utilized). (It is also recommended to include children born within ten months of the death of the worker in determining the dependants entitled to an allowance.)

Article 7 (provision of a constant attendance allowance for as long as the state of health of the injured worker requires it).

Article 9 (compensation for expenses, particularly for medical, surgical, pharmaceutical and hospital treatment, and supply and replacement of artificial limbs and surgical appliances, without fixing a maximum amount; and provision of medical aid to an injured worker irrespective of the duration of the incapacity).

The Committee hopes that the Bill will be enacted in the near future, and that it will take into account all of the above-mentioned points. It reminds the Government of the possibility of availing itself of the technical assistance of the Office for the establishment of the new insurance system of compensation for industrial accidents. The Committee requests the Government to report on any progress made in this respect.

[The Government is asked to report in detail in 1997.]

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

1. In reply to the Committee's previous comments, the Government states in its report that it has found it necessary to once again refer the proposed legislation on the Work Injury Benefits (Insurance) Scheme to the Tripartite Labour Advisory Board for further detailed discussions with a view to bringing it into total harmony with the relevant provisions of the Convention. It adds that the proposed legislation which also aims at incorporating the views of the Committee has now been submitted to Parliament for possible enactment. The Committee notes this information. It hopes that this legislation will be adopted soon so as to give full effect to the provisions of the Convention, that the final text will eliminate all previously noted discrepancies with the Convention on the following points and that it will also take into consideration the points raised by the ILO in its communication dated 12 October 1990.

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 falls outside 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 conversion 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 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.

2. The Committee recalls that in its report of 1991, 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.

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

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.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

1. With reference to its previous comments, the Committee notes the information provided by the Government in its reports received in June and August 1991 as well as the information communicated to the Conference Committee.

According to the information supplied by the Government, the various comments formulated previously by the Committee and the International Labour Office on a draft Work Injury Benefits (Insurance) Scheme Bill have been duly taken into account in a redrafted text which was placed before the National Tripartite Labour Advisory Board before submission to Parliament. As indicated in the government report received in June 1991 a copy of the redrafted Bill was sent to the ILO for further study and comments. The Committee notes, however, that the text supplied is identical to the previous draft at least with regard to the points the Committee and the Office had raised previously. Under these circumstances the Committee finds it necessary to once again draw the attention of the Government to certain divergencies between the draft Bill and the Convention which were already indicated in its previous observation.

Article 2 of the Convention. Section 13(2) of the draft text excludes the compensation of workers employed ordinarily 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. Sections 53(2)(c) and 61 of the draft text provide 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. Section 63 of the draft text provides for monitoring of the payment of compensation in the form of a lump sum, although it would not appear to provide for sufficient guarantees to ensure that the sum is properly utilised, as set out in Article 5 of the Convention.

Article 7. The Committee notes that by virtue of section 61(1) of the draft text (at the bottom of page 42) the payment of the additional allowance in the event of incapacity that necessitates the constant assistance of another person may be limited to a specific period, whereas such a restriction is not authorised by the Convention, since the additional compensation shall be provided for as long as the state of health of the victim necessitates it.

Article 8. The draft text should be completed in such a way as to explicitly lay down that any worker who is a victim of an employment accident, whose degree of incapacity is subsequently altered following a worsening of his condition, may have the amount of his pension reviewed.

Articles 9 and 10. Section 73(2)(a) of the draft text provides for the setting of maximum limits for the reimboursement of expenses, particularly those incurred for medical, surgical or pharmaceutical care and for the supply and replacement of artificial limbs and surgical appliances, whereas the determination of such limits is not authorised by the Convention, as the Committee has been emphasising for many years.

The Committee hopes that the redrafted Work Injury Benefits (Insurance) Scheme Act will take into account the above points as well as the comments made previously by the Office and that it will be adopted soon in order to give full effect to the Convention. The Committee requests the Government to supply information on any progress achieved in this respect and to transmit the text of the legislation when it has been adopted.

2. The Committee also notes with interest that the Government decided to immediately update the existing Workmen's Compensation Act with a view to meeting the requirements of Article 5 of the Convention, as well as to raise levels of payments for medical, surgical or pharmaceutical aid in case of industrial accidents in order to give better application to Articles 9 and 10. Pending the adoption of the Work Injury Benefits (Insurance) Scheme Act, the Committee hopes that such amendment to the Workmen's Compensation Act will be adopted in the very near future.

[The Government is asked to report in detail for the period ending 30 June 1992.]

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

1. With reference to its previous comments, the Committee notes the following information that was provided by the Government in its report and the information communicated to the Conference Committee in 1990. As regards the amendments made by Act no. 22 of 1987 to the Workmen's Compensation Act (Revised edition 1988), the Committee refers to its observation of 1989 and recalls that these amendments, which had the effect of raising the amount of the benefits payable to workmen and their dependants, have still not given full effect to Articles 5, 9, 10 and 11 of the Convention.

The Committee also notes with interest the draft Work Injury Benefits (Insurance) Scheme Act which was transmitted by the Government with its report. This draft text provides for important improvements in relation to the legislation that is in force. It provides for the replacement of the workmen's compensation scheme financed by the employer with a social insurance scheme against industrial accidents and occupational diseases, which should make it possible to give effect to Article 11 of the Convention. Furthermore, under the terms of the draft text, the compensation due in the event of occupational injury to victims who are permanently disabled, or to their dependants (in the event of the victim's death), will be paid principally in the form of periodical payments, which should make it possible to give better effect to Article 5 of the Convention.

The Committee however notes that this draft text, on which the International Labour Office made a number of comments and communicated them to the Government, at its request, in a letter dated 12 October 1990, includes certain divergencies with the Convention on the following points:

Article 2 of the Convention. Section 13(2) of the draft text excludes the compensation of workers employed ordinarily 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. Sections 53(2)(c) and 61 of the draft text provide 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. Section 63 of the draft text provides for monitoring of the payment of compensation in the form of a lump sum, although it would not appear to provide for sufficient guarantees to ensure that the sum is properly utilised, as set out in Article 5 of the Convention.

Article 7. The Committee notes that by virtue of section 61(1) of the draft text (at the bottom of page 42) the payment of the additional allowance in the event of incapacity that necessitates the constant assistance of another person may be limited to a specific period, whereas such a restriction is not authorised by the Convention, since the additional compensation shall be provided for as long as the state of health of the victim necessitates it.

Article 8. The draft text should be completed in such a way as to explicitly lay down that any workman who is victim of an employment accident, whose degree of incapacity is subsequently altered following a worsening of his condition, may have the amount of his pension reviewed.

Articles 9 and 10. Section 73(2)(a) of the draft text provides for the setting of maximum limits for the reimboursement of expenses, particularly those incurred for medical, surgical or pharmaceutical care and for the supply and replacement of artificial limbs and surgical appliances, whereas the determination of such limits is not authorised by the Convention, as the Committee has been emphasising for many years.

The Committee therefore hopes that the draft Work Injury Benefits (Insurance) Scheme Act will be amended so as to take into account the above points and the comments made by the ILO. It also hopes that the draft text, once it has been amended, will be adopted in the near future in order to give full effect to the Convention. The Committee requests the Government to supply information on any progress achieved in this respect and to transmit the text of the legislation when it has been adopted.

2. The Committee wishes to draw the Government's attention to the fact that there appears to be an error in the wording of section 32 of the Workmen's Compensation Act (Revised Edition) 1988, since subsection 1(a) respecting medical care has not been reproduced, even though reference is made to it in subsection (2).

[The Government is asked to report in detail for the period ending 30 June 1991.]

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee notes the information supplied by the Government in its reports. It regrets to note that there has been no progress in the adoption of the Social Security Bill which proposes to transform the current National Social Security Fund, on which the Committee has been commenting since 1967, into a pension scheme. The Government points out that there have been some delays in completing the draft Bill primarily because the Central Organisation of Trade Unions, Kenya, had asked for more time to consider in greater detail the whole question and implications of the proposed Bill. The Government hopes that it will soon be able to report some progress in the adoption of the proposed new Social Security Bill.

Article 5 of the Convention. Referring to the Committee's previous comments the Government indicates that discussions between the three social partners in Kenya on the replacement of the current Workmen's Compensation Act with what is being referred to as "Employment Injury Insurance Fund Scheme", are at a very early stage and details will be forwarded at a later date. The Committee notes this information. Given the time that has now elapsed in examining the draft Bill in question the Committee can only again express the hope that the National Social Security Fund will shortly be transformed into a pension scheme and that full effect will be given to this provision of the Convention, under which the compensation payable in the case of permanent incapacity or death shall be paid in the form of periodical payments, provided that it may be wholly or partially paid in a lump sum, if the competent authority is satisfied that it will be properly utilised.

Articles 9 and 10. The Committee regrets to note that the Government limits itself to indicating that it is currently studying the Committee's previous comments. It therefore again expresses the hope that the Government will adopt the necessary measures to give full effect to these provisions of the Convention which fix no maximum limits in respect of medical treatment and the supply and renewal of medical appliances.

Article 11. The Government reiterates that the Committee's previous comments will be taken into account when the present Workmen's Compensation Act is replaced by the proposed "Employment Injury Insurance Fund Scheme". The Committee takes note of this statement. It can therefore only again express the hope that the legislation referred to will be adopted shortly and that a new compensation scheme for industrial accidents will soon be introduced, ensuring in all circumstances, in the event of the insolvency of the employer or insurer, the payment of compensation to workmen who suffer personal injury due to industrial accidents or to their dependants.

The Committee requests the Government to provide information on any progress made in this respect. [The Government is asked to provide full particulars to the Conference at its 77th Session and to report in detail for the period ending 30 June 1990.]