Daily Archives: October 14, 2026

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. The Act, which came into force on 2^nd 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.

The Work Injury Benefits Act (WIBA)

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:

1. Temporary Partial Disablement/Incapacity

2. Temporary Total Disablement/Incapacity

3. Permanent Partial Disablement/Incapacity (PPD)

4. Permanent Total Disablement/Incapacity (PTD)

5. Fatal Workplace Accidents (Dependency Claims)

6. 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:

1. Reporting the Injury – Upon a work injury or an employee contracting an occupational disease, the injury must be reported to Director of Occupational Safety and Health Services (DOSHS) who has exclusive jurisdiction to hear work injury claims under sections 23 and 25 of WIBA.

2. Medical Examination – Upon lodging a claim, the Director refers the injured employee for medical assessment to determine the degree of incapacity.

3. 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.

4. 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.

5. Objection and Appeal – A person aggrieved by the Director’s decision may 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

1. 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 4^th 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 3^rd 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 24^th 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.

2. 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 9^th 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: Enforcement is to be initiated through miscellaneous or ordinary causes in the ELRC, strictly confined to matters of enforcement. 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. 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.

3. 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.

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.

INTRODUCTION

Imagine dedicating several years of your life to creating an innovative product or invention, spending valuable resources, time, skills, and money on its creation, only to find out later that someone else has already started manufacturing, selling, or making money out of it. Few things can be as frustrating as such for innovators, and Patent Law is designed specifically to protect innovators and inventors from such exploitation of their inventions.

Patents are intellectual property rights, which award inventors exclusive rights over their invention for a certain period of time, thus stimulating innovation, investments in research and development, and economic growth.

Patent rights in Kenya are regulated mainly through the Industrial Property Act, 2001, with the Kenya Industrial Property Institute (KIPI) being the government agency that is responsible for the registration and administration of patents. Nevertheless, having a patent certificate is only half of the battle. Patent owners should also know about the process of patent registration, its rights and limitations, what constitutes an infringement of patent rights, as well as legal actions that can be taken in case of violation of their rights.

This article examines the legal framework governing patent registration and infringement in Kenya, highlighting the patent application process, the rights available to patent holders, common instances of infringement, and the available legal remedies.

WHAT IS A PATENT?

A patent is an exclusive legal right granted to an inventor for a new invention that offers a technical solution to a specific problem. The invention may relate to a product, a process, or an improvement of an existing product or process.

A patent does not grant the holder the right to utilize the invention without limitation. Rather, it grants the right to prevent others from making, using, selling, importing, offering for sale, or otherwise commercially exploiting the patented invention without the patent owner’s authorization.

In Kenya, patents are territorial rights. Protection is only available within Kenya unless the inventor also secures protection in other jurisdictions.

WHAT CAN BE PATENTED?

Under the Industrial Property Act, an invention is patentable if it satisfies the following three essential requirements:

1. Novelty

The invention must be new. It should not have been disclosed anywhere in the world before the patent application is filed, whether through publication, public use, sale, or any other means. Even disclosure by the inventor before filing may destroy novelty.

2. Inventive Step

The invention must not be obvious to a person skilled in the relevant field of technology. An invention that merely combines existing knowledge without producing an unexpected technical result may fail this requirement.

3. Industrial Applicability

The invention must be capable of being made or used in some kind of industry. “Industry” is interpreted broadly to include technology, healthcare, agriculture, manufacturing, commerce, and other productive sectors.

WHAT CANNOT BE PATENTED?

The Industrial Property Act excludes certain subject matter from patent protection. These include:

• Discoveries, scientific theories, and mathematical methods;

• Schemes, rules, or methods for doing business, performing mental acts, or playing games;

• Methods for treatment of the human or animal body by surgery or therapy;

• Diagnostic methods practiced on the human or animal body;

• Plant varieties (which are protected under separate legislation);

• Literary, artistic, and other aesthetic creations protected under copyright law; and

• Inventions whose commercial exploitation would be contrary to public order or morality.

THE PATENT REGISTRATION PROCESS IN KENYA

Patent applications are filed with the Kenya Industrial Property Institute (KIPI). The registration process generally involves the following stages:

1. Filing the Application

The applicant submits:

• A completed application form; (Form IP 3 for patents or IP 4 for utility models).

• Patent specification document; describing the invention, the scope of protection sought, drawings where necessary, and an abstract summarizing the invention.

• Payment of the prescribed fees.

The application may be filed by the inventor or an assignee.

2. Formal Examination

KIPI examines the application to determine whether all procedural requirements have been satisfied. Have all the requisite documents been filed or not.

If the application is not procedurally compliant, KIPI issues a formality examination report, and the applicant has 90 days (extendable by another 90 days) to address them.

3. Search and Substantive Examination

KIPI conducts or relies upon an international search and substantive examination to determine whether the invention satisfies the requirements of:

• Novelty;

• Inventive step; and

• Industrial applicability.

Where objections arise, the applicant may amend the application or respond to the examiner’s observations.

4. Grant of Patent

Once the application satisfies all legal requirements, KIPI grants the patent and records it in the Patent Register.

The patent is then published in the Kenya Industrial Property Journal.

Duration of Patent Protection

A patent remains valid for twenty (20) years from the filing date, provided annual maintenance fees are paid. Failure to pay renewal fees may result in lapse of the patent.

Once the patent expires, the invention enters the public domain and may be freely used by anyone.

Rights Conferred Upon a Patent Holder

Registration grants the patent owner exclusive rights to:

• Manufacture the patented product;

• Use the patented process;

• Sell or offer the invention for sale;

• Import the patented product;

• License the invention to third parties;

• Assign ownership of the patent; and

• Institute legal proceedings against infringers.

These exclusive rights enable inventors to commercialize their innovations and recover investments made during research and development.

PATENT INFRINGEMENT

Patent infringement occurs where a person, without the authorization of the patent owner, performs acts reserved exclusively to the patent holder.

Common acts of infringement include:

• Manufacturing a patented product;

• Using a patented manufacturing process;

• Selling or offering for sale patented products;

• Importing patented products into Kenya;

• Stocking patented products for commercial purposes; and

• Inducing another person to infringe the patent.

DEFENCES TO PATENT INFRINGEMENT

A person accused of infringement may rely on certain defences, including:

• 1. Prior Use

Where a person had already begun using the invention in good faith before the filing date of the patent application, they may continue such use.

• 2. Experimental Use

Acts carried out solely for scientific research or experimentation may not amount to infringement.

• 3. Private and Non-commercial Use

Certain private acts undertaken without commercial purpose may fall outside the scope of infringement.

• 4. Invalidity of the Patent

The alleged infringer may challenge the validity of the patent on grounds such as:

• Lack of novelty;

• Obviousness;

• Lack of industrial applicability;

• Insufficient disclosure; or

• Failure to satisfy statutory requirements.

If the patent is declared invalid, the infringement claim fails.

REMEDIES FOR PATENT INFRINGEMENT

Where infringement is established, Kenyan courts may grant various remedies depending on the circumstances of the case.

• 1. Injunctions

The court may issue interim or permanent injunctions restraining further infringement.

• 2. Damages

The patent owner may recover monetary compensation for losses suffered as a result of the infringement.

Where appropriate, damages may include lost profits or reasonable royalties.

• 3. Account of Profits

Instead of damages, the patent owner may elect to recover profits earned by the infringer from the unlawful exploitation of the invention.

• 4. Delivery Up or Destruction

The court may order infringing goods, machinery, packaging materials, or implements used in infringement to be surrendered or destroyed.

LICENSING AND ASSIGNMENT OF PATENTS

Patent owners may also derive benefits from their innovations without necessarily or directly manufacturing their products.

Instead, they may;

• Grant licences to third parties in exchange for royalties;

• Assign ownership of the patent outright; or

• Enter into joint commercialization arrangements.

To be enforceable against third parties, assignments and licences should be registered with KIPI in accordance with the Industrial Property Act.

INTERNATIONAL PATENT PROTECTION

Patent rights are territorial. Registration in Kenya does not automatically protect an invention in other countries.

Kenya is a member of several international intellectual property treaties, including the:

• Paris Convention for the Protection of Industrial Property;

• Patent Cooperation Treaty (PCT); and

• Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

These treaties facilitate international filing procedures but do not automatically confer worldwide patent protection.

CONCLUSION

Every successful invention starts with an idea, but only a protected idea can truly become a valuable asset. Registering your patent is an investment in your innovation, your business, and your future. Taking the right legal steps today can save you significant time, money, and disputes tomorrow.

At ESK Advocates LLP, we provide reliable legal support on all aspects of patent law, from registration and licensing to enforcement and dispute resolution. Contact us today and let us help you protect what you’ve created before someone else claims it.