Introduction
Kenya has undergone a significant transformation in its approach to workplace injury compensation, evolving from the colonial-era Workmen’s Compensation Act to a modern, comprehensive statutory regime under the Work Injury Benefits Act, Cap. 236, Laws of Kenya (WIBA). The Act, which came into force on 2nd June 2008, fundamentally modernised the country’s approach to workplace safety and compensation. This article provides a comprehensive examination of the work injury compensation framework in Kenya, with a focus on recent judicial developments that have shaped the law.
Legal Framework Governing Work Injury Compensation in Kenya
The primary legislation governing work injury compensation in Kenya is the WIBA. The Act was enacted to provide for compensation to employees for work-related injuries and diseases contracted in the course of their employment. It establishes a comprehensive scheme covering accidents arising in the course of an employee’s employment, resulting in personal injury.
Scope of Application
The Act applies to all employees working under a contract of service or apprenticeship, whether local or foreign, covering both the private sector and government institutions, with the only category excluded being members of the armed forces. This broad application ensures that virtually all workers in Kenya are protected under the statutory compensation scheme.
Types of Compensation
WIBA provides a comprehensive range of compensation benefits to employees who suffer work-related injuries. These include compensation for:
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a) Temporary Partial Disablement/Incapacity
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b) Temporary Total Disablement/Incapacity
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c) Permanent Partial Disablement/Incapacity (PPD)
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d) Permanent Total Disablement/Incapacity (PTD)
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e) Fatal Workplace Accidents (Dependency Claims)
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f) Occupational Diseases
Compensation for the injuries is calculated according to the employee’s earnings and the extent of incapacity. In cases where a workplace injury or occupational disease results in death, the deceased employee’s dependants are entitled to compensation.
Limitations on Compensation
It is important to note that WIBA contains certain limitations in relation to claims for compensation. First, an employee is not entitled to compensation if an accident that does not result in serious disablement or death is proven to have been caused by the deliberate or wilful misconduct of the employee. Secondly, the law requires that claims be made within twelve (12) months of the accident or discovery of the occupational disease.
One of the most noteworthy features of WIBA is its approach to fault. WIBA operates on a no-fault basis, meaning that an employee does not have to prove negligence on the part
of the employer to receive compensation. Instead, the focus is on whether the injury or illness occurred in the course of employment.
Employer and Employee Obligations
Under WIBA, all employers are legally required to take out a WIBA-compliant insurance policy to cover their workforce against work-related injuries, occupational diseases, permanent disability, or death. Failure by an employer to provide adequate insurance is not only a violation of the Act but also a criminal offence. Additionally, employers have an obligation to report workplace injuries promptly and to ensure that affected employees receive the benefits they are legally entitled to.
Employees also have obligations under WIBA, including reporting workplace injuries promptly, submitting to medical examination as required and cooperating with the claims process.
Procedure for Lodging and Determining Claims
The procedure for lodging and determining claims entails the following:
a) Reporting the Injury
Upon a work injury or an employee contracting an occupational disease, the injury must be reported to the Director of Occupational Safety and Health Services (DOSHS) who has exclusive jurisdiction to hear work injury claims under sections 23 and 25 of WIBA.
b) Medical Examination
Upon lodging a claim, the Director refers the injured employee for medical assessment to determine the degree of incapacity.
c) Assessment and Award of Compensation
Once the degree of incapacity has been determined, an award will be made based on the employee’s monthly earnings and the degree of injury.
d) Enforcement of the Director’s Award
Where a decision has been made and there is no objection or appeal, one can move the ELRC for enforcement of the Director’s award through miscellaneous or ordinary cause pursuant to Rule 69 of the Employment and Labour Relations Court (Procedure) Rules. The ELRC’s role is strictly limited to adoption of the award, and once adopted, the award assumes the character of a court judgment and is executable through ordinary civil execution proceedings.
e) Objection and Appeal
A person aggrieved by the Director’s decision may file an objection before the Director within 60 days of such decision as provided for under Section 51 of the Act. The Director is mandated to give a written decision on the objection within 14 days of receiving it. An objector may, within 30 days of receiving the Director’s decision on the objection, appeal against the decision to the Employment and Labour Relations Court (ELRC).
Recent Jurisprudence
a) Law Society of Kenya v Attorney General & another [2019] KESC 16 (KLR)
Immediately the Work Injury Benefits Act, Cap. 236 was enacted in 2007, the constitutionality of the same was challenged by the Law Society of Kenya (LSK), leading to a protracted legal battle that would span over a decade and culminate in a landmark Supreme Court decision. On 4th March 2009, the High Court declared several provisions of WIBA unconstitutional for being inconsistent with various Sections of the former Constitution. Consequently, all WIBA claims found their way back into the courts, with the bulk of them being filed in the Magistrates’ courts because of their pecuniary jurisdiction. Eight years later, the Court of Appeal reversed the High Court’s decision, reinstating the impugned provisions of WIBA.
Aggrieved by the Court of Appeal’s decision, the Law Society of Kenya filed Petition No. 4 of 2019 before the Supreme Court. On 3rd December 2019, the Supreme Court delivered its landmark judgment in which it upheld the constitutionality of the Act, including the provisions that had been challenged by LSK. The Court affirmed that the DOSHS has exclusive jurisdiction to hear work injury claims and issue awards, and that employees must exhaust the statutory mechanism before approaching the courts.
Following the Supreme Court decision, a critical question arose: what was to become of the thousands of WIBA claims that had been filed in courts during the period between the High Court’s declaration of unconstitutionality (2009) and the Supreme Court’s decision (2019)? To resolve this uncertainty, the Chief Justice issued Practice Directions through Kenya Gazette Notice No. 5476 dated 24th April 2023 directing that all claims filed after the commencement of WIBA and before the Supreme Court decision at the ELRC or the Magistrates’ Courts shall proceed until conclusion before the said courts. Only suits filed after the Supreme Court Decision with respect to compensation for work-related injuries and diseases shall commence before the DOSHS.
b) Charles v Cheto [2025] KECA 784 (KLR)
The most significant judicial development in recent years is the Court of Appeal’s decision in Charles v Cheto [2025] KECA 784 (KLR), delivered on 9th May 2025. This decision addressed two persistent issues under WIBA: the absence of an explicit enforcement mechanism for the Director’s awards and the procedural options available to employers who dispute such awards.
First, the Court affirmed that the ELRC is the proper forum to entertain enforcement proceedings of the Director’s award. This conclusion is rooted in Article 162(2)(a) of the Constitution, Section 12 of the ELRC Act, and Section 86 of the Employment Act. The Court noted that, in the absence of a statutory enforcement mechanism, judicial precedent has established that award holders may approach the ELRC to enforce Director’s awards.
Second, the Court provided a workable enforcement framework as follows:
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Enforcement is to be initiated through miscellaneous or ordinary causes in the ELRC, strictly confined to matters of enforcement.
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The ELRC’s role is strictly limited to adoption, it cannot entertain factual or merit-based challenges to the Director’s award. In the absence of any valid objection to the award, adoption is a matter of course.
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Once adopted, the award assumes the character of a court judgment and is executable through ordinary civil execution proceedings.
Lastly, the Court held that where the statutory window for objecting or appealing has lapsed, the only remedy available is judicial review. This must be pursued before adoption proceedings are concluded, and the employer should seek a stay of enforcement proceedings pending determination of the judicial review application. The judgement essentially delivered clarity, finality and enforceable direction in an area where the law has long been plagued by procedural uncertainty.
c) Timsales Limited v Director of Occupational Safety and Health [2025] KEELRC 1626 (KLR)
In this case, the court addressed a critical procedural question: whether the Director, as a decision-maker, can be named as a party on appeal. The court held that the Director is a decision-maker, not a party to the work injury dispute. The procedure under the Act involves the Director making an award, an aggrieved person filing an objection, the Director giving a written decision, and the objector appealing to the ELRC.
Conclusion
Kenya’s work injury compensation regime under the Work Injury Benefits Act (WIBA) has developed into a comprehensive and employee-centred framework founded on the principle of no-fault compensation.
Recent judicial decisions have clarified the jurisdiction of the Director of Occupational Safety and Health Services and the Employment and Labour Relations Court, bringing greater certainty to the administration and enforcement of work injury claims. Although challenges such as delayed compensation and insurance non-compliance remain, ongoing legislative and judicial developments continue to strengthen the effectiveness of the system. Employers, employees, and insurers must therefore remain informed and compliant to safeguard their rights and ensure the efficient resolution of work injury disputes.
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How ESK Advocates LLP Can Help
ESK Advocates LLP is uniquely positioned to assist employers, employees and insurers in navigating the complex landscape of work injury compensation in Kenya. The firm advises on regulatory compliance, workplace safety and claims management, while representing clients in objections, appeals and enforcement proceedings before the ELRC. We also assist employees in pursuing compensation claims, securing appropriate medical assessments, and enforcing awards, while helping insurers resolve disputes and meet statutory obligations. With extensive experience in employment and labour law, the firm delivers practical, strategic and results-oriented legal solutions tailored to the evolving landscape of work injury compensation in Kenya.
Article By:
Frankline Ojanji
Associate Advocate
Disclaimer: This publication is for informational purposes only and does not constitute legal advice. For tailored legal support, kindly consult our team.
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