A Nairobi-based lawyer has moved to court seeking to quash sections of the Work Injury Benefits Act (WIBA) for allegedly being unconstitutional arguing that matters of personal injury cannot be decided by the Director of Work Injury Benefits.
WIBA is an insurance cover that protects employers, should their employees incur injuries or die in the course of their work. It steps in to lift the employers’ financial obligation under WIBA to compensate workers injured out of and in the course of employment.
Mr Harry Stephen Arunda says in a petition at the Employment and Labour Relations Court that WIBA entails questions of negligence under the law of torts and cannot, therefore, be determined by the Director who has no training in law and qualifications to practice law.
Tort law is the area of the law whose concept is to redress a wrong done to a person and provide relief from the wrongful acts of others, usually by awarding monetary damages as compensation. The original intent of tort is to provide full compensation for proved harms.
Mr Arunda said the Director has been unlawfully and unconstitutionally granted powers to hear and determine injury to an employee thus threatening, infringing, and violating the fundamental rights and freedom under the Bill of Rights.
“The petitioner avers that employee injury in the course of employment is intrinsic to the fundamental rights and freedom in the Bill of Rights and therefore, denial, violations, threats, and contravention is a judicial issue that cannot be heard by the Director,” Mr Arunda said.
The lawyer wants the court to issue a conservatory order, prohibiting the Director of WIBA from hearing and determining work injury during and in the course of employment.
