Lack of Clear Procedure in Work Injury Disputes faulted for Delays
It is sad that 10 years after enactment of WIBA, 2007 Employers and Employees still find themselves in a state of limbo on work injury dispute resolution
A judge at the Kenya Employment and labour Relations Court (E&LRC) has blamed lack of clarity in the Workplace Injury Benefits Act for the delays in finalizing claims under the Act.
Judge James Rika of the Mombasa E&LRC made this observation while making a determination in a claim initiated on 13th May, 2007 in which a ruling was made in September 2018. The case filed by David Kibe who had sued his employer, Sarova Whitesands Hotel was first filed at the Chief Magistrate's Court in Mombasa but was adjourned severally due to transfers of the trial magistrates and unavailability of the attorneys. The issue of concern to Judge Rika however was the contention on whether the magistrate's court had jurisdiction over the matter. This was further affected by the promulgation of the 2010 constitution which then required that the case be transferred to the Employment and labour Relations Court.
The judge noted that the uncertainty on the jurisdiction resulted from ever changing law on work injury claims, in particular on jurisdiction in which such claims are to be heard. According to the judge it is disheartening that for over a decade after enactment of the Work Injury Benefits Act 2007, Employers and Employees still find themselves in a state of limbo on work injury dispute resolution, as different Courts have kept giving different interpretation to work injury law, and on employment law in general, particularly on the jurisdiction of the Courts.
The judge therefore recommended that there is need to provide clarity on the procedure and forum in work injury disputes, and prevent simple work injury claims from going on for decades unresolved. He noted that the constant legal challenges against the Work Injury Benefits Act 2007, and conflicting case law on jurisdiction, does little in facilitating expeditious disposal of work injury disputes. There should be a degree of certainty and predictability in the field of work injury dispute resolution. This according to Judge Rika was the intention of the Social Partners, when they came up with the Work Injury Benefits Act 2007. Certainty, predictability of the law, and expeditious disposal of disputes, would tremendously stabilize the labour market.
Source: Kenya Law