In a rather interesting decision the Court of Appeal of Kenya, in the Attorney-General vs. the Law Society of Kenya and another, upheld most of the provisions of the Work Injury Benefits Act, 2007 (WIBA) and thereby paving the way for WIBA to finally become operational. WIBA was to become operational on the 2nd of June, 2008, but on the 14th of April, 2008 the Law Society of Kenya (LSK) contested the constitutionality of various provisions of WIBA.
In their petition, the LSK contended various things, among them being that section 7 (1) of WIBA was unconstitutional because it compels an employer to obtain and maintain insurance from an insurer approved by the Minister concerned with Labour matters (the Minister) and to the LSK, this was unconstitutional because it was said to contravene section 80 (1) of the former Constitution of Kenya which to the LSK deprived employers of the right to take out insurance from insurers licenced by law, that section 10 (4) of WIBA was unconstitutional for creating "without fault" liability on the part of the employer and to the LSK this was a violation of fair trial and that section 16 was unconstitutional because by barring court action for work related injuries, the LSK viewed this as violating access to justice. There were a lot of other contentions by the LSK.
The High Court where LSK's petition was filed agreed with the contentions of the LSK, prompting an appeal by the Attorney-General. The Court of Appeal overruled most of the findings of the High Court and as mentioned earlier basically upheld WIBA as a valid enactment under the Constitution. The Court of Appeal, especially, did not find the provisions barring court action to violate the Constitution, meaning, therefore, that the Courts have been divested of their jurisdiction in these matters except for the appellate intervention of the Employment and Labour Relations Court (ELRC) from the decision of the Director of Occupational Health and Safety Services (the Director). Only section 7 of WIBA (so far as it provides for the Minister's approval or exemption) and section 10 (4) of WIBA were declared to be unconstitutional. This decision has implications that will reverberate not only in the employer employee relationship but also in the legal profession. Some of these implications are:
1. Employers will need to get insurance covering work related injuries. The employer will however not be restricted by the Minister's desires on this.
2. Employers carrying on business in Kenya will have to register with the Director.
3. Compensation for work related injuries will be dealt with by the Director and not the courts (which will only have appellate jurisdiction through the ELRC). Further and more detailed advice on how the Act affects employers and employees, will be given to our various clients.