Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

Workmen's Compensation (Accidents) Convention, 1925 (No. 17) - Kenya (Ratification: 1964)

1. With reference to its previous comments, the Committee notes the information provided by the Government in its reports received in June and August 1991 as well as the information communicated to the Conference Committee.

According to the information supplied by the Government, the various comments formulated previously by the Committee and the International Labour Office on a draft Work Injury Benefits (Insurance) Scheme Bill have been duly taken into account in a redrafted text which was placed before the National Tripartite Labour Advisory Board before submission to Parliament. As indicated in the government report received in June 1991 a copy of the redrafted Bill was sent to the ILO for further study and comments. The Committee notes, however, that the text supplied is identical to the previous draft at least with regard to the points the Committee and the Office had raised previously. Under these circumstances the Committee finds it necessary to once again draw the attention of the Government to certain divergencies between the draft Bill and the Convention which were already indicated in its previous observation.

Article 2 of the Convention. Section 13(2) of the draft text excludes the compensation of workers employed ordinarily outside Kenya but temporarily employed in Kenya by an employer who carries on business chiefly outside Kenya, unless an agreement has been concluded to the contrary. This exclusion is not covered by the cases mentioned in Article 2, paragraph 2, of the Convention.

Article 5. Sections 53(2)(c) and 61 of the draft text provide for the payment of a lump sum where a degree of incapacity is less than 40 per cent or where the amount of the compensation is less than a certain sum. Section 63 of the draft text provides for monitoring of the payment of compensation in the form of a lump sum, although it would not appear to provide for sufficient guarantees to ensure that the sum is properly utilised, as set out in Article 5 of the Convention.

Article 7. The Committee notes that by virtue of section 61(1) of the draft text (at the bottom of page 42) the payment of the additional allowance in the event of incapacity that necessitates the constant assistance of another person may be limited to a specific period, whereas such a restriction is not authorised by the Convention, since the additional compensation shall be provided for as long as the state of health of the victim necessitates it.

Article 8. The draft text should be completed in such a way as to explicitly lay down that any worker who is a victim of an employment accident, whose degree of incapacity is subsequently altered following a worsening of his condition, may have the amount of his pension reviewed.

Articles 9 and 10. Section 73(2)(a) of the draft text provides for the setting of maximum limits for the reimboursement of expenses, particularly those incurred for medical, surgical or pharmaceutical care and for the supply and replacement of artificial limbs and surgical appliances, whereas the determination of such limits is not authorised by the Convention, as the Committee has been emphasising for many years.

The Committee hopes that the redrafted Work Injury Benefits (Insurance) Scheme Act will take into account the above points as well as the comments made previously by the Office and that it will be adopted soon in order to give full effect to the Convention. The Committee requests the Government to supply information on any progress achieved in this respect and to transmit the text of the legislation when it has been adopted.

2. The Committee also notes with interest that the Government decided to immediately update the existing Workmen's Compensation Act with a view to meeting the requirements of Article 5 of the Convention, as well as to raise levels of payments for medical, surgical or pharmaceutical aid in case of industrial accidents in order to give better application to Articles 9 and 10. Pending the adoption of the Work Injury Benefits (Insurance) Scheme Act, the Committee hopes that such amendment to the Workmen's Compensation Act will be adopted in the very near future.

[The Government is asked to report in detail for the period ending 30 June 1992.]