Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

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

In response to the Committee's previous comments, the Government specifies that the Work Injury Benefits Insurance Scheme Bill has been amended and forwarded to the competent authorities for enactment. The Committee notes this information. It observes, however, that the Bill provided by the Government does not seem to have incorporated the new amendments. The Committee hopes that the Bill, to which the Government has referred since 1990, will be adopted soon and that it will enable full effect to be given to the provisions of the Convention, by taking into account the following specific points.

Article 2, paragraph 2, of the Convention.Further to the Committee's comments, the Government refers to section 22(1) of the Bill which provides for the maintenance of protection in respect of workmen's compensation for accident where a worker is temporarily employed abroad. While noting this information, the Committee recalls that its comments related to section 22(2) of the Bill which, contrary to this provision of the Convention, excluded from compensation for accidents workers ordinarily employed abroad but temporarily employed in Kenya by an employer who carries on business chiefly outside Kenya, subject to international agreements.

Article 5. (a) The Government specifies that the final Bill has been amended to bring section 48 into line with section 56. Consequently, the Committee hopes that in its final version section 48 will provide for the payment of the compensation in a lump sum only for victims whose degree of incapacity does not exceed 20 per cent and for whom the competent authority is satisfied that the lump sum paid will be properly utilized. (b) In addition, the Committee recalls that it would be desirable to replace, in sections 4(1)(b) and 50(1) of the Bill, the term "accident" by the term "death", so as to take account of the situations in which the death of an injured workman occurs well after the accident has taken place.

Article 7. In response to the Committee's comments, the Government indicates that, although the additional compensation paid in case of incapacity requiring the constant help of another person which is provided for in section 57 of the Bill may be limited to a particular period, the insurance scheme director may extend this compensation depending on the injured worker's condition. The Committee recalls that the additional compensation must be paid for as long as the injured worker's state of health so requires. Consequently, the Committee hopes that, in practice, at the end of each period for which the additional compensation has been granted, the competent authority will ensure that an injured worker whose state of health so requires continues to receive the additional compensation for a further period.

Articles 9 and 10. (a) The Committee recalls that section 9(2) of the Bill, which sets a ceiling for the reimbursement of expenses relating, in particular, to medical, surgical, pharmaceutical and hospital treatment, and to the supply and renewal of artificial limbs and surgical appliances, does not comply with this provision of the Convention which guarantees injured workers the right to such medical aid as is recognized to be necessary in consequence of their accidents.

(b) In addition, the medical aid must be granted irrespective of the duration of the injured worker's incapacity for work and from the day on which the accident occurs. Consequently, in the definition of "accident", given in section 2 of the Bill, the phrase "for more than three consecutive days, excluding the day of the accident and any Sunday, or if Sunday is not a rest day, one rest day" should be deleted. This is all the more necessary, since section 36(2) of the Bill already provides for a waiting period of three days for the payment of cash benefits, where the duration of the incapacity does not exceed three weeks.

The Committee trusts that, in its final version, the Bill will take account of the comments made above and that the Government's next report will provide details of its enactment.