A Nairobi-based lawyer has filed a lawsuit seeking to have parts of the Work Injury Benefits Act (WIBA) struck down as unconstitutional, arguing that personal injury matters cannot be decided by the WIBA administrator.
WIBA is an insurance cover that protects employers in the event that their employees are injured or die while on the job. It increases the financial obligation of employers under WIBA to compensate workers who are injured both on and off the job.
Mr Harry Stephen Aronda argues in an application to the Employment and Labour Relations Tribunal that WIBA involves questions of negligence under the Civil Torts Act and therefore cannot be determined by a director who does not have the legal training and qualifications to practice law.
Tort law is the area of law that aims to correct wrong done to one person and provide relief for the wrongful acts of others, usually by awarding monetary damages. The original purpose of tort is to provide full compensation for proven damages.
Mr. Aronda said the Director had been unlawfully and unconstitutionally given the powers to hear and determine the injury sustained by an employee, thereby threatening, violating and infringing upon fundamental rights and freedoms under the Bill of Rights.
“The petitioner contends that an employee’s injury at work constitutes an integral part of the fundamental rights and freedoms in the Bill of Rights and therefore the refusal, violations, threats and contravention are a judicial matter that cannot be heard by the manager,” Mr. Aronda said.
The lawyer asks the court to issue an injunction preventing the WIBA Director from hearing and determining work injuries during or in the course of work.