UNDERSTANDING WORKPLACE INJURIES AND COMPENSATION IN KENYA

The legal framework governing workplace injuries in Kenya is anchored in two primary statutes, the Occupational Safety and Health Act (OSHA), 2007, which focuses on preventing injuries through safety standards, and the Work Injury Benefits Act (WIBA), 2007, which provides a statutory mechanism for compensating employees who suffer injury, illness, or death arising out of and in the course of their employment. The core principle of WIBA is a no-fault compensation system, meaning an injured employee is entitled to compensation regardless of who was at fault, provided the injury occurred during work duties.

Section 6 of the Occupational Safety and Health Act places a duty to every occupier to ensure the safety, health and welfare at work of all persons working in his workplace.  The occupier has a duty to ensure the provision and maintenance of plant and systems and procedures of work that are safe and without risks to health, ensuring safety and absence of risks and providing and maintaining of a working environment for every person employed that is, safe, without risks to health, and adequate as regards facilities and arrangements for the employee’s welfare at work. An employee injured during the course of employment has the right to access medical treatment at the employer’s expense. Section 7 of the Work Injury Benefits Act, provides that every employer shall obtain and maintain an insurance policy, with an insurer approved by the Minister in respect of any liability that the employer may incur under the Act to any of his employees.

Rights of an Employee

An employee who suffers a workplace injury is required to promptly notify their employer or supervisor about the incident. The right to report the injury to the employer and the Director of Occupational Safety and Health Services (DOSHS) without fear of reprisal.    They must also cooperate fully with any medical examinations arranged by the employer or directed by the Director of Occupational Safety and Health. Additionally, the employee is obligated to provide accurate and complete information regarding the circumstances of the accident and the nature of the injury sustained. This cooperation is essential for proper documentation, timely treatment, and processing of any claims for compensation.

Right to Compensation is provided for under Section 10 of the Work Injury Benefits Act. An employer is liable to pay compensation to an employee injured while at work in accordance with the provisions of the Act. The right to receive compensation for medical expenses, temporary disablement, permanent disablement, or death. The employee has a right to be informed about the compensation process, the calculation method, and the final decision.

Duties of Employee

Every employee is responsible for ensuring their own safety and health, as well as that of others who may be affected by their actions or omissions in the workplace. They must cooperate with their employer or any authorized person in fulfilling duties or requirements set out by the Occupational Safety and Health Act or related regulations. Employees are also expected to follow all safety procedures, requirements, and instructions provided by supervisors, and must promptly report any accidents or injuries that occur during the course of their work.

Employer’s Duties

The employer has a legal duty to maintain a safe working environment by complying with the Occupational Safety and Health Act (OSHA), which includes providing necessary protective equipment and adhering to all relevant safety standards. In the event of an accident, the employer must ensure the injured employee receives immediate medical attention. Additionally, under the Work Injury Benefits Act (WIBA), the employer is obligated to report the incident by submitting a duly completed Forms to the Director within seven days. As employers are required to have WIBA insurance, they must also notify their insurer promptly and cooperate in facilitating the compensation process for the injured employee.

Reporting Protocol and Timelines

Timeliness is crucial in a WIBA claim. Failure to adhere to these statutory timelines may prejudice the employee’s claim. Under Section 21 of the Work Injuries and Benefits Acts, the employee shall issue a written or verbal notice to the employer of any accident that occurs during employment. Such notice shall be given by or on behalf of the employee concerned to the employer and a copy of the written notice or a notice of the verbal notice shall be sent to the Director within twenty-four (24) hours of its occurrence in the case of a fatal accident.

The employer shall report an accident to the Director in the prescribed manner within seven (7) days after having received notice of an accident or having learned that an employee has been injured in an accident. After receiving notice of an accident or having learned that an employee has been injured in an accident the Director shall make such inquiries as are necessary to decide upon any claim or liability in accordance with the Act.

Claim for compensation

A claim for compensation shall be lodged by or on behalf of the claimant in the prescribed manner within twelve (12) months after the date of the accident or, in the case of death, within twelve months after the date of death. If the accident was reported properly, your claim may still be considered even if it’s late. Employers are required to report accidents and cooperate with investigations. If they don’t, the government can investigate and make them pay for it or penalize them. Once a claim is lodged, the employer or their insurance must pay within 90 days, and the government will then pay the injured worker or their dependents within 30 days. If the employer doesn’t pay, they can be fined up to KES 500,000 or jailed for up to one year.  Normally, if an accident is not reported within 12 months, you lose the right to benefits but if your employer already knew about the injury, or if you had a good reason (like being out of the country), you may still be compensated.

An employee who suffers temporary total or partial disablement from a workplace injury is entitled to regular compensation payments equivalent to their earnings (within set limits) for up to 12 months, unless they are already receiving full or partial pay. This compensation ends if the employee recovers, resumes work at the same or higher pay, or is awarded permanent disablement compensation, but may be extended if the condition worsens or further treatment is needed. Compensation for permanent disablement is based on 96 months of the employee’s earnings, within limits set by the Minister. The level of compensation depends on the degree of disability listed in the First Schedule or, for unspecified injuries, as assessed by a medical doctor, with room for higher awards if the injury severely impacts the employee’s specific occupation. Temporary disablement payments are not deducted from this compensation.

When Compensation May Be Denied

A claim may be denied, or the compensation award reduced if,

1. If the injury is a direct result of the employee’s own serious and willful misconduct (e.g., deliberate contravention of safety rules, intoxication), unless the injury results in serious disablement or death.
2. If the injury did not arise out of and in the course of employment.
3. Where the employee fails to report the accident within the 12-month limitation period, making the claim statute-barred, unless justifiable reasons for the delay are accepted by the Director.
4. If the employee unreasonably refuses to submit to medical examination or recommended treatment, the right to compensation may be suspended.

WIBA and OSHA offer a robust framework for workplace injury management in Kenya. Employers must adhere to reporting timelines, maintain safe working conditions, and ensure fair compensation, while employees must report injuries and cooperate in the claims process. Understanding these rights and responsibilities is crucial for compliance and protection in the event of work-related harm.

At A.O. WANGA ADVOCATES we are happy to assist you with all your work/employment related matters in Kenya. For more information or assistance please contact us on info@aowangaadvocates.com or +254794600191

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