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Supreme Court upholds law on work injury compensation

By Kamau Muthoni | December 5th 2019

The Supreme Court has faulted a lower court for delivering judgment on a matter that is still pending before it.

A five-judge bench addressed Justice Erick Ogola’s verdict on compensation for injuries at work while an appeal filed by the Law Society of Kenya (LSK) was being heard by the apex court.

Chief Justice David Maraga and justices Mohamed Ibrahim, Njoki Ndung’u, Smokin Wanjala and Isaack Lenaola found that the court ought to have waited before proclaiming itself on the matter.

“We are greatly dismayed that the learned judge did not take judicial notice of the pendency of this appeal although he was aware of it. As a matter of fact, he stated so in his judgment that an appeal had been preferred to us against the decision of the Court of Appeal on matters whose determination may well have been binding on him,” the judges ruled.

They continued: “The learned judge ought to have held his horses and acknowledge the hierarchy of the courts and await for this court to pronounce itself before rendering himself, if at all. As we perceive it, his judgment has created unnecessary confusion in the application of Wiba and cannot be allowed to stand as it may also be contrary to this judgement.”

In June this year, Justice Ogola, sitting at the High Court in Mombasa, had declared the Work Injury Benefits Act (Wiba) unconstitutional. At the time, there was a pending dispute between LSK, the Central Organisation of Trade Unions (Cotu) and the Attorney General.

At the heart of the dispute is whether the director of medical health should assess workplace injuries and determine how much should be paid.

Seek justice

According to the LSK, Wiba is unconstitutional because it had taken away the right of employees to seek justice in courts.

Justice Jackton Ojwang’, who was then a High Court judge, agreed with the LSK but the Court of Appeal set aside the orders.

Aggrieved, the LSK moved to the Supreme Court, where it argued that the Wiba Act impedes the rights of employees to a fair trial.

The lawyers’ lobby stated that the law allows an injured employee to first seek treatment from a doctor approved by the director of medical services prior to filing for compensation.

LSK argued that employees should be allowed to visit a doctor of their choice before seeking compensation.

But Cotu, through lawyer Judith Guserwa, argued that the law gives both the director of medical services and the employer equal rights.

This means that an employee has the right to have, at their own expense, a doctor of their choice present during the assessment to determine the extent of their injury and how much they should be paid.

The AG supported Cotu’s stand, arguing that any party aggrieved by the outcome of the injury assessment exercise could file a case in court.

The Supreme Court agreed with Cotu and the AG, stating that allowing medical professionals to assess the extent of injuries had helped to settle disputes that would have swamped the courts.

“It is therefore evident that Wiba’s purpose is a noble one. It is meant to offer protection to employees should they get injured or contract diseases in the course of their duties. In addition, its reach is far wider than its predecessor; the Workmen’s Compensation Act, Cap 236.”

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