Work Injury Benefit Act (WIBA)

The Work Injury Benefit Act (WIBA) 2007 provides for compensation to employees for work related injuries and diseases contracted in the course of their employment and for connected purposes.

It repealed the Workmen Compensation Act, Cap 236 of the laws of Kenya.

Some of the arguments presented by labour union and human rights groups include against the Act were;

• The WCA was too obsolete to cater for worker’s interest
• WCA was too restrictive as it only covered some employees
• It did not provide for compulsory insurance
• It did not meet the international standards

WIBA applies to all employees including those employed by the government, other than members of armed forces. The Act provides that every employer shall obtain and maintain an insurance policy, with an insurer approved by Minister of Finance in respect of any liability that the employer may incur under the Act in respect to any of their employees.

An employee who is involved in an accident or contract sickness arising out of and in the courses of employment resulting to disablement or death, is subject to the provisions of the Act, and entitled to the benefits provided for there in, regardless of fault.

Provisions of the Act

It provides for a schedule of compensation based on the degree of disablement

Compensation shall be based on 96 months’ earnings as opposed to 60 months under WCA

It provides that claims should be settled within 90 days of lodging and the employer who fails to pay out the claim shall be liable to a fine not exceeding KES 500,000 or one-year imprisonment or both

The policy is required to cover all medical expenses including first aid facilities, conveyance to and from medical facility, payment of all dental, surgical treatment, nursing care, travelling and replacement of artificial limbs. Compensation is structured and based on earnings.

The first schedule covers degree of disablement arising from death, general injury, loss of limbs, eye injury and loss of hearing.

The second schedule covers occupational diseases such as poisoning, by toxic fumes, exposure to chemicals and electromagnetic radiation, tuberculosis, anthrax, inflammations.

 The third schedule is on the dependents’ compensation

WCA had low medical limits. Compensation under WIBA is structured and based on the earnings. The Act also seeks to bar claims made under common law, seeking all injury claims subject to the Act. It provides for a schedule of compensation based on the degree of disablement.

The Act bars the employer from applying claim proceeds against any debts owed by employee. It also declares void any agreements which purport to confer any party a right to injury claim monies. It provides that claims occurring prior to commencement of the Act were deemed to have been lodged under the Act.

The Act allows any party aggrieved by Director of Injury Benefits to lodge an appeal to within 14 days to which the Director shall reply within 14 days, either varying or upholding his decisions. If further aggrieved, the party may appeal to the Industrial Court and the decision of the Industrial Court shall be Final.

Areas of Dissatisfaction

Since its passing, the Act has attracted a lot of controversies especially in the following areas:

• It was hurriedly passed.
• It lacks limits of compensation and therefore makes it financially unpredictable for employers
• It had no maximum limits for medical, dental, surgical, nursing care and replacement of artificial
• The administrative controls vested on the government under the Act are too stringent and may open room for corruption
• The insurance industry needed time to come up with the necessary products addressing the risk.
• Some sections of the Act had apparently denied lawyers opportunities of representation in injury claims.
• The Act restricted claims on employment injury to the provision of the Act only.