High Court ruling cripples workplace law

By Luke Anami

A recent High Court ruling that struck off nine sections of the Work Injury and Benefits Act 2007 (Wiba) have rendered the Act inoperational, throwing the labour market into confusion.

Justice Jacktone Ojwang’ in a case of filed by the Law Society of Kenya against the Attorney General on behalf of the Minister for Labour, declared sections 4, 7(1), 10(4), 16, 23(1), 25(1), 52(1) and (2) and 58(2) unconstitutional making it impossible to implement provisions of the entire law.

And now the Federation of Employers (FKE) and the Central Organisation of Trade Unions (Cotu) want the Labour Minister to move with speed, and initiate amendments to have the law implementable.

"The effect of the High Court decision is that the Act is not implementable without the provisions that have been declared null and void," said FKE Chief Executive Jacqueline Mugo.

"In view of the judgment, the Federation is taking up with the Minister to initiate amendments to this Act. We will demand that adequate consultations be held with employers in this process," said Ms Mugo.

Cotu’s Secretary-General said the workers were in the process of instructing their lawyers to move to court to challenge the ruling.

"We will appeal against the decision. We want the court to look at the case afresh," said Atwoli.

The High Court ruling implies workers cannot make injury claims under the Act. They will have to contend with the common law as the Workmen’s’ Compensation Act was repealed following the enactment of the Work Injury Benefits Act, 2007, thereby creating a vacuum.