Introduction.
A workplace injury can have significant legal and financial consequences for both employees and employers. For employees, it may result in loss of income, permanent disability and substantial medical expenses. For employers, it may lead to compensation claims, regulatory investigations and costly disputes.
Despite the Work Injury Benefits Act, 2007 (WIBA) being in force for nearly two decades, misconceptions about workplace injury claims remain common.
WIBA establishes a statutory framework for adjudicating claims made by employees who suffer injuries or contract occupational diseases arising out of and in the course of employment. Claims are primarily administered by the Director of Occupational Safety and Health Services (DOSHs), with the courts exercising appellate and supervisory jurisdiction where necessary. This framework was affirmed by the Supreme Court in Law Society of Kenya v Attorney General & Another [2019], which held that WIBA does not deny access to justice but requires parties to first exhaust the statutory dispute resolution process before approaching Courts.
The Process.
Sections 21, 23, 25 and 26 of WIBA establish a process that begins with notification of the accident to the employer, followed by investigations by the Director, medical assessment where necessary, an assessment of compensation and ultimately an award. Once compensation is awarded as assessed, the employer is required to satisfy the award within ninety (90) days whether directly or through its insurer, the primary obligation to satisfy the award remaining with the employer.
Where either party is dissatisfied with the Director’s decision, Sections 51 and 52 provide for an objection before the Director and, thereafter, an appeal to the Employment and Labour Relations Court (ELRC).
Must the Claimant first start with the DOSH or can they file a suit in Court directly?
The short answer is, YES.
Section 16 of WIBA bars employees from instituting civil proceedings for workplace injuries except as provided under the Act. Although this provision was previously challenged, the Supreme Court confirmed in Law Society of Kenya v Attorney General & Another [2019] that the Act simply requires parties to exhaust the administrative process before approaching the courts. It postpones, rather than extinguishes, the right to seek judicial redress.
For both employers and employees, commencing proceedings before the wrong forum may result in unnecessary delays, additional costs and potential limitation of time challenges.
How does one enforce compensation Awards?
Awards once issued by DOSH are filed for recognition and enforcement by the ELRC.
In Charles v Cheto [2025], the Court held that the absence of an express enforcement mechanism in WIBA, cannot defeat a successful claimant’s right to compensation. The ELRC may thus adopt the Director’s award as a judgment of the Court, which judgement is then converted into a decree allowing the successful party to enforce it through the ordinary execution processes.
This approach is consistent with earlier decisions, including Samson Chweya Mwendabole v Protective Custody Limited [2021] and Richard Akama Nyambane v ICG Maltauro Spa [2020], both of which recognised the ELRC’s jurisdiction to enforce the Director’s awards.
What if you were not notified of the proceedings?
In some cases, an employer or employee only becomes aware of the Director’s decision after the statutory period for lodging an objection has expired.
In Charles v Cheto, the Court of Appeal held that where a party alleges they were denied notice or an opportunity to be heard, the appropriate remedy is to institute judicial review proceedings before the Director’s award is adopted by the Court. Raising such issues during enforcement proceedings or on appeal will generally be too late.
The decision serves as an important reminder that procedural rights must be asserted promptly.
Why do timelines matter?
Like other employment-related disputes, WIBA claims are subject to statutory limitation periods. While Section 89 of the Employment Act generally requires employment claims to be commenced within three (3) years, the courts have recognised that where proceedings are properly commenced before the Director or another competent forum, the passage of time, while those proceedings remain pending, does not ordinarily prejudice the claimant.
Key Takeaways.
For employers, compliance extends beyond maintaining a safe workplace. It includes timely reporting of workplace accidents, participating in investigations, observing statutory timelines and satisfying compensation awards where required.
For employees, WIBA provides an effective avenue for compensation, but only where accidents are promptly reported, statutory procedures are followed and claims are pursued before the appropriate forum within the prescribed timelines.
Conclusion.
Recent decisions of the Supreme Court, the Court of Appeal and the ELRC have clarified the operation of WIBA, particularly in relation to the statutory claims process, enforcement of awards and procedural fairness.
At Kibatia & Company Advocates LLP, we advise employers, employees and insurers on all aspects of workplace injury claims, including compensation proceedings before the Director of Occupational Safety and Health Services, enforcement of awards, judicial review applications and appeals before the ELRC. Our Employment and Labour team is available to assist with all aspects of WIBA claims.
