Work Injury Benefits Act

This Act may be cited as the Work Injury Benefits Act.

This section provides definitions of terms used in the Act (e.g. "accident", "employer", "compensation", "medical practitioner", "temporary disablement").

The Act applies to all employees, including those employed by the Government except the armed forces, treating the Government like a private employer for this purpose.

Defines who counts as an "employer", including personal representatives of deceased employers, persons controlling the employer's business, the Government, trustees of clubs/associations, and managers or authorized agents for notices; it also deems an employer to remain the employer when an employee is temporarily lent or hired out.

Defines "employee" as a person employed for wages or salary under a contract of service and includes apprentices and indentured learners; specifies exclusions (casual workers not in the employer’s trade or business, persons employed outside Kenya except as in section 11, certain family members living with the employer not employed for work, and members of the Defence Forces).

Defines who counts as a 'dependant' for the purposes of the section and provides that if an employee leaves two or more widows they shall share the compensation payable to a single widow.

Employers must obtain and maintain an insurance policy with an insurer approved by the Cabinet Secretary covering liabilities to employees.

Employers must register with the Director, supply prescribed particulars of their business, provide additional particulars within a Director-determined period if required, furnish particulars separately for each business, notify the Director within thirty days of changes, and may be required to register separately for each workplace or class of business.

Employers must keep and retain employee earnings records, produce them to the Director on demand, and notify the Director before winding up if registered under section 8.

Employees injured at work are entitled to benefits; employers must pay compensation for work injuries; employees are not entitled where non-serious accidents result from the employee’s deliberate wilful misconduct; conveyance by employer vehicle for work is deemed in the course of employment; serious disablement means permanent disablement of forty percent or more.

Employees ordinarily employed in Kenya who are injured while temporarily deployed outside Kenya are entitled to compensation as if the accident occurred in Kenya, subject to subsection (3); employees ordinarily employed outside Kenya who are injured while temporarily deployed in Kenya are not entitled to compensation; employees deployed in Kenya for 12 months are deemed ordinarily employed in Kenya.

If an employee, with the employer's consent, is injured or contracts an occupational disease while taking part in organized first aid, ambulance, rescue, fire-fighting or other emergency service, the accident or disease is treated for the purposes of this Act as having arisen out of and in the course of their employment.

The Director may refuse to award compensation in special circumstances.

If, in a compensation claim, it appears an employee's contract of service, apprenticeship or learnership is invalid, the Director may approve compensation as if the contract had been valid at the time of the accident.

Where an injury causes disablement so the employee needs constant personal assistance, the Director must grant an allowance for the cost of such help; the Director may later revise that order on application and good cause.

Employees and their dependants may not bring an action for damages against their employer for occupational injury or death; employers are not liable for compensation except under this Act.

Employees may claim compensation under the Act and sue third parties; employers or insurers who pay compensation may sue third parties to recover amounts paid; courts must take account of compensation paid when awarding damages; compensation is defined to include certain medical and allowance costs.

Any person must not threaten, compel or influence an employee in a way that deprives the employee of rights to benefits; doing so is an offence.

Compensation shall not be alienated, assigned, pledged, attached, executed against, or set off against debts of the person entitled to it; agreements purporting to relinquish such rights by an employee are void.

Compensation paid under this Act for the death of an employee shall not form part of the employee’s estate.

Employees must give written or verbal notice of any workplace accident to their employer; if the accident is fatal, a copy (or notice of the verbal notice) must be sent to the Director within twenty-four hours of its occurrence.

An employer must report an accident to the Director in the prescribed manner within seven days of receiving notice or learning an employee was injured; employers must provide a copy of the Director notice to an employee or dependant on request; failure to comply with the reporting duty is an offence; employees may report an occupational accident or disease to the Director at any stage.

The Director must make inquiries after receiving notice of an accident or learning of an employee injury; an employer or employee must provide further particulars when requested by the Director; failing to comply with that request is an offence.

Injured employees (or their dependants) must give requested or prescribed information and documents; employers must submit received claims or related documents to the Director within seven days.

Employees who claim or receive compensation must, when required by the Director or employer and after reasonable notice, attend examination by a medical practitioner designated by the Director or employer; if unable to travel they must notify the party requiring the examination; the designated practitioner must examine at an agreed time/place; employees may have their own practitioner present at their own expense.

Claims for compensation must be lodged by or on behalf of the claimant within twelve months of the accident (or death), employers or insurers must settle certain Director‑lodged claims within 90 days, the Director must pay received money within 30 days to the employee or dependants, the Director may investigate and recover costs or levy penalties, and failure by an employer or insurer to pay is an offence punishable by a fine up to 500,000 shillings or up to one year imprisonment or both.

A right to benefits in accordance with this Act shall lapse if the accident is not reported to the employer within twelve months after the date of such accident.

Establishes a Director of Work Injury Benefits and makes the Director responsible for managing the Act and carrying out specified functions including registering employers, supervising implementation, ensuring employers insure employees, receiving reports and investigating accidents, and ensuring injured employees are compensated; the Director is to be assisted by other necessary officers.

Anyone who knowingly makes a materially false statement in a claim for compensation or in any return, notice, report or statement under the Act commits an offence.

A person convicted under this Act may be fined up to two hundred thousand shillings, or imprisoned for up to one year, or both.

Section 56 authorises the Cabinet Secretary to prescribe procedures, forms, fees and other matters and requires employers and insurers (insuring employers under the Act) operating in Kenya to make periodic returns within prescribed time limits; it creates offences for failure, false returns, or refusal to give information and makes company officers liable unless they prove lack of knowledge or consent.

Regulations or instruments made under the earlier Workmen’s Compensation Act and claims for accidents or diseases occurring before this Act’s commencement continue to have effect or be treated as lodged under this Act.

Employees who suffer temporary total disablement from an accident that incapacitates them for three days or longer are entitled to periodical payments equivalent to their earnings (subject to Cabinet Secretary minimum/maximum); payments stop while receiving full pay and periodical payments are not made for more than twelve months.

Compensation for temporary total or partial disablement ends when the disablement terminates, when the employee resumes work (including other work at the same or greater earnings), or when compensation for permanent disablement is awarded; it also expires if the disablement recurs, the employer’s health deteriorates, or further medical aid causes additional absence provided that such aid reduces disablement.

Compensation for permanent disablement is calculated on the basis of ninety six months' earnings (subject to minimums and maximums in the Third Schedule); employees are deemed to have the degree of disablement listed in the First Schedule for listed injuries; employees shall be paid a percentage for other injuries as a medical doctor considers consistent with the First Schedule; the Director may determine a higher percentage where an employee’s occupation makes the consequences unusually serious; temporary disablement payments under section 29 must not be deducted from this compensation.

Publication of the intention to amend the First Schedule and the proposed content of the amendment.

If an apprentice or trainee is permanently disabled by an accident, the employee's earnings for compensation are to be calculated as if they had the earnings of a worker in the same occupation with five years' experience.

The Director may consider any compensation already awarded to an employee when awarding or reviewing compensation for permanent disablement.

If an employee dies from a work accident, compensation is payable to dependants under the Third Schedule subject to maximum and minimum amounts set by the Cabinet Secretary after consulting the Council; additionally the employer must pay reasonable funeral expenses subject to a Cabinet Secretary maximum.

Announces an intention to amend the Third Schedule and describes the proposed content of the amendment

Specifies how compensation must be paid or applied (to employee, dependants, Public Trustee, or as directed); unpaid balances on death go to dependants and, if no dependant, the Director may pay the estate.

Describes what counts as an employee's earnings (rations, quarters, allowances, overtime, special payments, ex-gratia), sets averaging rules for variable pay, addresses multi‑employer contracts, permits the Director to calculate earnings equitably if standard methods are impracticable, and allows weekly-based calculations with a monthly conversion factor of four and one‑third.

Employees who contract diseases arising out of and in the course of employment are treated as having an occupational disease and are entitled to compensation; they may also be entitled to medical aid for non-occupational diseases that worsen recovery; medical practitioners may consider aggravating diseases when assessing permanent disablement.

If an employee contracts an occupational disease listed in the Second Schedule and worked in any job listed there for that disease, it is presumed—unless proven otherwise—that the disease arose out of and in the course of their employment.

Earnings for compensation are calculated at the time of disease commencement or an earlier date a medical practitioner may determine, using whichever earnings are more favourable to the employee; if the employee is no longer employed, calculate based on what they would have been earning.

Employees must promptly give written notice of an occupational disease to their (current or last) employer and in the prescribed manner to the Director; employers must report such disease to the Director within fourteen days of notice or learning of it, and failure by an employer to comply with that reporting duty is an offence.

The start date of an occupational disease is treated as the date a medical practitioner first diagnosed it, or an earlier date the practitioner may choose if that is more favourable to the employee; accident provisions apply to such diseases where appropriate.

Amendment of Second Schedule.

Members of a medical advisory panel are entitled to be paid prescribed remuneration and allowances from funds set aside by Parliament.

Employers must provide and maintain first-aid appliances and services for employees; failure is an offence; the Cabinet Secretary may exempt employers after consultation and by Gazette notice.

The employer must provide necessary transport to a hospital or from a hospital to the employee’s home if an employee is injured and requires conveyance.

Section 47 lists types of medical expenses covered (dental/medical/surgical/hospital treatment, skilled nursing, medicine and dressings, travel and subsistence for treatment within Kenya, and supply/maintenance/repair/replacement of artificial limbs and other appliances); it deems damage to such appliances (subsection (1)(e)) to be an injury and states that the Council determines the necessity, nature and sufficiency of medical aid.

A medical practitioner who examines an injured employee or diagnoses an occupational disease must, within fourteen days, furnish a medical report to the Director in the prescribed manner; if the employee had left employment at diagnosis, the report must be made in a separate prescribed form.

Fees and charges for medical aid to an employee must follow a scale prescribed by the Cabinet Secretary; employers are protected from claims for amounts exceeding that scale.

Employers must not require employees to contribute towards the cost of medical aid; doing so is an offence; if convicted the Director may order repayment of the amount received.

A person aggrieved by a Director's decision may, within sixty days, lodge a written objection with the Director; the objection must be in the prescribed form and include particulars stating the circumstances and relief or question claimed.

The Director must, within 14 days of receiving a properly formed objection, provide a written reply varying or upholding the decision with reasons and send a copy to others affected; an objector may appeal to the Industrial Court within 30 days of receiving the Director’s reply.