The Ongoing WIBA Saga is Finally Resolved by the Supreme Court

The Supreme Court has finally put to rest the hullaballoo about the Work Injury Benefits Act, 2008 (WIBA). In a unanimous decision the apex court decided that both the new and the old Constitutions should apply in interpreting section 16 of WIBA as read with sections 23 and 52 of WIBA. The apex court found that WIBA provides preliminary access to Director with appellate and supervisory jurisdiction retained by the Employment and Labour Relations Court. The Supreme Court also found that section 16 of WIBA is not an ouster clause and that it merely allows a form of alternative dispute resolution (ADR) mechanism. Further sections 16, 23 and 52(1) of WIBA are not inconsistent with Constitution and section 25 (1) and (3) WIBA require injured employees to subject to medical exam under Director. According to the court this is not discriminatory. The apex court found that section 58(2) WIBA requires all injuries initiated prior to the Act to proceed under WIBA and declared that while this is retroactive, it is not unconstitutional. However, the court pronounced that litigation pending before the enactment of WIBA courts should proceed and conclude in court based on claimants’ legitimate expectation. The appeal by the Law Society of Kenya was, therefore dismissed but since the LSK filed the appeal in the public interest, each party was asked to bear its own costs.

Pursuant to Gazette Notice No. 3204 of 16th May 2001, the Attorney General (AG) appointed a seven-member Task Force to examine and review all labour laws and make recommendations for appropriate legislative intervention to replace or amend existing laws. The Task Force submitted a report that formed the basis of the enactment of the Work Injuries Benefits Act 2007 (WIBA) which came into force on 2 nd June, 2008 by Gazette Notice No. 60 of 23rd May, 2008.

After WIBA came into effect, the Law Society of Kenya (LSK) filed a petition on 14 th April, 2008 pursuant to Section 84 of the former Constitution and Rule 12 of the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2006 contesting the constitutional validity of various provisions of the said Act. They particularly argued that Sections 7(1), 10 (4), 16, 21, 52(1) and (3), and 58(2) of the Act were inconsistent with Sections 60, 75(1), 77(1), 77(9), 77(10), 80(1) and 82(1) of the former Constitution. They thus sought a declaration from the High Court that the said sections of WIBA were null and void to the extent of that inconsistency.

The learned Judge of the High Court J.B Ojwang J (as he then was) considered the evidence on record and submissions of the parties and in his Judgement declared, as being inconsistent with the provisions of the retired Constitution, Sections 4; 7(1) and (2); 10(4); 16; 21(1); 23(1); 25(1) and (3); 52(1) and (2); and 58(2)of WIBA. The Respondent was further condemned to pay the costs of the Petition.

Aggrieved by the decision of the High Court, the Attorney General filed Civil Appeal No 133 of 2011arguing that the learned Judge erred in law in declaring the nine sections of WIBA inconsistent with the former Constitution.

On 17 th November, 2017, the Court of Appeal (Waki, Makhandia, Ouko JJA) allowed the appeal only to the extent that it set aside the High Court’s orders declaring Sections 4, 16, 21 (1), 23(1), 25 (1) and (3), 52 (1) &(2) and 58(2) of the Act to be inconsistent with the former Constitution. It however found that Section 7 of WIBA (in so far as it provided for the Minister’s approval or exemption) and Section 10 (4)thereof were inconsistent with both the former and the Constitution 2010.

Aggrieved by the decision of the Court of Appeal, the Petitioner filed an appeal to the Supreme Court. Arising from the Petition of Appeal, the responses thereto as well as the written and oral submissions, the Supreme Court considered that the following issues crystalized for determination, i.e.:

• Whether Sections 16, 23(1), 25(1) and (3), 52(1) and (2) as well as Section 58(2) of WIBA are inconsistent with the former Constitution and/or the Constitution 2010; and

• What are the appropriate orders to issue, including on costs?

With regard to unconstitutionality of various proceedings of the constitution, the Supreme Court found as follows:

1. There is rebuttable presumption that a statutory provision is consistent with the Constitution and the party that alleges inconsistency has the burden of proving such a contention.

• In addition to the above, and to fully comprehend whether a statutory provision is unconstitutional or not, its true essence must also be considered. This gives rise to the second principle which is the determination of the purpose and effect of such a statutory provision, i.e. a purposive interpretation should be given to statutes, when considering the same vis a vis the Constitution.

• In searching for the purpose, therefore, it is also legitimate to seek to identify the mischief sought to be remedied. The historical background of the legislation is one of the factors to consider in that regard and this allows the provision (s) to be understood within the context of the grid of other related provisions and of the Constitution as a whole. In this regard, the Supreme Court found that some of the objectives for enacting WIBA were as follows:

• The Ministry of Labour and Human Resource Development is responsible for the administration of the workmen compensation services through Labour department.

• However, with the recent review of the core Labour Laws, workmen’s compensation Act will be referred as Work Injury Benefit Act (WIBA) and will be administered by the Director of Directorate of Occupational Health and Safety Services (DOHSS) in the same Ministry.

• With this new arrangement the reporting of work injuries and accidents will be well captured in the most relevant department already charged with the responsibility of prevention of occupational accidents and diseases.

• The data collected will enable the officers concerned to institute investigation and hence hasten remedial measures to avoid further occurrence of the same.

It is in this background that the Supreme Court considered the unconstitutionality of the impugned provisions of WIBA.

• As to whether Sections 16, 23(1) and 52 (1) & (2) of the WIBA are inconsistent with the Constitution the Supreme Court decided that both the new and the old Constitutions should apply in interpreting section 16 of WIBA as read with sections 23 and 52 of WIBA. The apex court found that WIBA provides preliminary access to Director with appellate and supervisory jurisdiction retained by the Employment and Labour Relations Court. The Supreme Court also found that section 16 of WIBA is not an ouster clause and that it merely allows a form of alternative dispute resolution (ADR) mechanism. Further sections 16, 23 and 52(1) of WIBA are not inconsistent with Constitution and section 25 (1) and (3) WIBA require injured employees to subject to medical exam under Director. According to the court this is not discriminatory. The apex court found that section 58(2) WIBA requires all injuries initiated prior to the Act to proceed under WIBA and declared that while this is retroactive, it is not unconstitutional. However, the court pronounced that litigation pending before the enactment of WIBA courts should proceed and conclude in court based on claimants’ legitimate expectation.

• The appeal by the LSK was, therefore dismissed.

• However, since the LSK filed the appeal in the public interest, each party was asked to bear its own costs.

The decision of the court is interesting in many ways. The points of interest were:

1. The court’s reiteration that a law emanating from Parliament is to be presumed by the Courts to be consistent with the Constitution and that it is the job of the person alleging inconsistency with the Constitution to prove the said inconsistency. This raises a threshold in Constitutional interpretation of Statutes and enhances the doctrine of separation of powers.

• The Supreme Court declared that it is willing and indeed all courts have a duty to give purposive interpretation to the Constitution so as to be able to, as much as possible, give effect to Parliamentary intention.

• While the court correctly declared the importance of purposive interpretation, the Court did not, unfortunately, address its mind on what was the exact reason why the magistrate’s courts were being excluded from this area of litigation. Granted that the court does not have to look at every reason and further the court tried to explain it by stating firstly that it was the legislative intention and that approach to the Director was merely a form of ADR, the court should have decided on the question whether the Director as constituted by WIBA was a tribunal within the meaning of article 159 (1) of the Constitution. While the Court was trying very hard to maintain the principle of separation of powers by having regard to the doctrine of presumption of constitutionality of Acts of Parliament, the court did not, as it should have, investigated whether Parliament’s actions were violative of the principle of separation of powers.

Lawyers and other legal advisors should necessarily become attuned to the aspirations of the people which are expressed by the laws made in Parliament. It is only by becoming attuned to these aspirations that lawyers can properly influence the shape of legislation.