Repealed by Work Injury Benefits Act, No 13 of 2007




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Workmen’s Compensation Act, Cap 236


(Repealed by Work Injury Benefits Act, No 13 of 2007)




LAWS OF KENYA







THE WORKMEN'S COMPENSATION ACT


CAP. 236


Published by the National Council for Law Reporting

with the Authority of the Attorney-General
CHAPTER 236
THE WORKMEN'S COMPENSATION ACT
Commencement Date: 1949-10-01


An Act of Parliament to provide for compensation to workmen for injuries suffered in the course of their employment
Part I - Preliminary

Short Title



1. This Act may be cited as An Act of Parliament to provide for compensation to workmen for injuries suffered in the course of their employment the Workmen's Compensation Act.
Interpretation of "workman".



2. (1) In this Act, except where the context otherwise requires, "workman", subject to section 4 and the proviso to this subsection, means any person who has, either before or after the commencement of this Act, entered into or works under a contract of service or apprenticeship with an employer, whether by way of manual labour, or otherwise, whether the contract is express or implied, is oral or in writing, whether the remuneration is calculated by time or by work done whether by the day, week, month or any longer period:

Provided that the following persons are excepted from the definition of "workman"-

(i) any person employed otherwise than by way of manual labour whose earnings exceed four hundred thousand shillings a year;
(ii) a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business, not being a person employed for the purposes of any game or recreation and engaged or paid through a club;
(iii) an outworker;
(iv) a tributer;
(v) a member of the employer's family dwelling in the employer's house or the curtilage thereof;

(va) a member of the armed forces;

(vi) any class of persons whom the Minister may, by order, declare not to be workmen for the purposes of this Act.
(2) If in any proceedings for the recovery of compensation under this Act it appears to the court that the contract of service or apprenticeship under which the injured person was working, at the time when the accident causing the injury happened, was illegal, the court may, if having regard to all the circumstances of the case it thinks proper so to do, deal with the matter as if the injured person had at such time been a person working under a valid contract of service or apprenticeship.
(3) Any reference to a workman who has been injured shall, unless the context otherwise requires, where the workman is dead, include a reference to his legal personal representative, or to his dependants or any of them or the Attorney General or such other officer as the Minister may appoint to act on behalf of the dependants of the workman.
Interpretation of Other Terms.



3. (1) In this Act, except where the context otherwise requires -
"compensation" means compensation as provided for by this Act;

"court" means a subordinate court of the first class:


Provided that the Minister may by order declare that, in any area or for any case or class of cases, proceedings under this Act may be brought in any other court;
"dependants" means those members of the family of a workman who were wholly or in part dependent upon his earnings at the time of his death, or would but for the incapacity due to the accident have been so dependent, and, where the workman, being the parent or grandparent of an illegitimate child, leaves such a child so dependent upon his earnings or, being an illegitimate child, leaves a parent or grandparent so dependent upon his earnings, shall include such an illegitimate child or parent or grandparent respectively:
Provided that a person shall not be deemed to be a partial dependant of another person unless he was dependent partially on contributions from that other person for the provision of the ordinary necessaries of life suitable for persons in his class and position;
"earnings" includes wages and any allowance in respect of increased cost of living paid to the workman by the employer and the value of any food, fuel or quarters supplied to the workman by the employer, and any overtime payments or other special remuneration for work done, whether by way of bonus or otherwise, if of constant character or for work habitually performed; but does not include remuneration for intermittent overtime, or casual payments of a non-recurrent nature, or any ex gratia payment whether given by the employer or other person, or the value of a travelling allowance, or the value of any travelling concession or a contribution paid by the employer of a workman towards any pension or provident fund, or a sum paid to a workman to cover any special expenses entailed on him by the nature of his employment;

"employer" includes the Government and the Governments of Tanzania and Uganda, and any body of persons corporate or unincorporate, and the legal personal representative of a deceased employer, and, where the services of a workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship, the latter shall, for the purposes of this Act, be deemed to continue to be the employer of the workman whilst he is working for that other person; and, in relation to a person employed for the purposes of any game or recreation and engaged or paid through a club, the manager or members of the managing committee of the club shall, for the purposes of this Act, be deemed to be the employer;

"insurer" includes any insurance society, association, company or underwriter;

"local or other public authority" means any local or public authority declared by order of the Minister to be a local or public authority for the purposes of this Act;

"medical aid" means medical, surgical and hospital treatment, skilled nursing services and the supply of medicines within Kenya or, with the approval of the Director of Medical Services, outside Kenya, and the supply, maintenance, repair and renewal of any artificial appliances or apparatus;

"member of the family" means any of the following, that is to say, husband, wife, parent, stepparent, grandparent, son, daughter, stepchild, grandchild, brother or sister, half-brother or half-sister, and includes also an adopted child and a child whom the workman had accepted as a member of has family;


"outworker" means a person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished or repaired, or adapted for sale in his own home or on other premises not under the control or management of the person who gave out the materials or articles;

"partial incapacity" means, where the incapacity is of a temporary nature, such incapacity as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the incapacity, and, where the incapacity is of a permanent nature, such incapacity as reduces his earning capacity in any employment which he was capable of undertaking at that time:

Provided that every injury specified in the Second Schedule, except such injury or combination of injuries in respect of which the percentage or aggregate percentage of the loss of earning capacity as specified in that Schedule against such injury or injuries amounts to one hundred per centum or more shall be deemed to result in permanent partial incapacity;

"schedule disease" means any disease specified in the Third Schedule;

"total incapacity" means such incapacity, whether of a temporary or permanent nature, as incapacitates a workman for any employment which he was capable of undertaking at the time of the accident resulting in such incapacity:

Provided that permanent total incapacity shall be deemed to result from an injury or from any combination of injuries specified in the Second Schedule where the percentage or aggregate percentage of the loss of earning capacity as specified in that Schedule against such injury or injuries, amounts to one hundred per centum or more;

"tributer" means a person who is granted permission to win minerals, receiving a proportion of the minerals won by him or the value thereof.

(2) The exercise and performance of the powers and duties of a local or other public authority shall, for the purposes of this Act, be deemed to be the trade or business of such local or other public authority.



Application of Act to Workmen in Service of Government, Etc
4. This Act applies to a workman employed by or under the Government in the same way and to the same extent as if the Government were a private employer:
Provided that this Act does not apply to a workman in the service of the Government or the service of the Community, if he joined or was selected for appointment to such service or the service of the High Commission or the Organization -
(i) before the 1st October, 1949; or

(ii) before the 16th February, 1968, if his earnings at the date of the injury exceed sixteen thousand eight hundred shillings, but do not exceed twenty-four thousand shillings a year,


where, in consequence of injury received by him in the discharge of his duties -
(a) a pension or gratuity is paid to him or, in the case of his death, to any of his dependants as defined in this Act, under any law; and

(b) the pension or gratuity would not have been payable to him otherwise if the injury were not so received.


PART II - COMPENSATION FOR INJURY
Employer's Liability for Compensation for Death or Incapacity Resulting from Accident.

5. (1) If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter provided, be liable to pay compensation in accordance with the provisions of this Act and, for the purposes of this Act, an accident resulting in the death or serious and permanent incapacity of a workman shall be deemed to arise out of and in the course of his employment, notwithstanding that the workman was at the time when the accident happened acting in contravention of any statutory or other regulation applicable to his employment, or of any orders given by or on behalf of his employer, or that he was acting without instructions, from his employer, if such act was done by the workman for the purposes of and in connexion with his employer's trade or business:
Provided that -
(i) the employer shall not be liable under this Act in respect of any injury other than an injury which results in partial incapacity of a permanent nature, which does not incapacitate the workman for a period of at least three consecutive days from earning full wages at the work at which he was employed;
(ii) if it is proved that the injury to a workman is attributable to the serious and wilful misconduct of that workman, any compensation claimed in respect of that injury shall be disallowed; except that where the injury results in death or serious and permanent incapacity, the court on a consideration of all the circumstances may award the compensation provided for by this Act or such part thereof as it shall think fit.

(iii) if a workman is injured in or about any premises at which he is for the time being employed for the purposes of his employer's trade or business, the injury shall be deemed to arise out of and in the course of his employment if it happens while he is taking steps, in an actual or supposed emergency at those premises, to rescue, succour or protect any person who is, or who is reasonably thought to be, injured or imperilled, or to avert or minimize serious damage to property.

(2) No compensation shall be payable under this Act in respect of any incapacity or death resulting from a deliberate self-injury.

(3) No compensation shall be payable under this Act in respect of any incapacity or death resulting from personal injury, if the workman has at any time represented in writing to the employer that he was not suffering or had not previously suffered from that or a similar injury, knowing that the representation was false.


Compensation in Fatal Cases.



6. Where death results from the injury -
(a) if the workman leaves any dependants wholly dependent on his earnings, the amount of compensation shall be a sum equal to sixty months earnings or thirty-five thousand shillings whichever is the greater; but where in respect of the same accident compensation has been paid under the provisions of section 7 or section 8 there shall be deducted from the sum payable under this paragraph, any sums so paid as compensation;
(b) if the workman does not leave any dependants wholly dependent on his earnings, but leaves any dependants in part so dependent, the amount of compensation shall be such sum, not exceeding in any case the amount payable under paragraph (a), as may be determined by the court to be reasonable and proportionate to the injury to such dependants;
(c) if the workman leaves no dependants, the reasonable expenses of the burial of the deceased workman, not exceeding the sum of two thousand shillings, shall be paid by the employer.
Compensation in Case of Permanent Total Incapacity.



7. (1) Where permanent total incapacity results from the injury, the amount of compensation shall be a sum equal to sixty months' earnings.
(2) Notwithstanding the provisions of subsection (1) where an injury results in permanent total incapacity of such a nature that the injured workman must have the constant help of another person, additional compensation shall be paid amounting to one quarter of the amount which is otherwise payable under this section.
Compensation in Case of Permanent Partial Incapacity.



8. (1) Where the permanent partial incapacity results from the injury, the amount of compensation shall be -
(a) in the case of an injury specified in the Second Schedule, such percentage of sixty months' earnings as is specified therein as being the percentage of the loss of earning capacity caused by that injury; and
(b) in the case of an injury not specified in the Second Schedule, such percentage of sixty months earnings as is proportionate to the loss of earning capacity permanently caused by the injury.
(2) Where more injuries than one are caused by the same accident, the amount of compensation payable under this section shall be aggregated, but not so in any case as to exceed the amount which would have been payable if permanent total incapacity had resulted from the injuries.
Compensation in Case of Temporary Incapacity.



9. (1) Where temporary incapacity whether total or partial results from the injury, the compensation shall be the periodical payments hereinafter mentioned, payable at such intervals as may be agreed upon or as the court may order, or a lump sum calculated accordingly having regard to the probable duration, and probable changes in the degree, of the incapacity; and such periodical payments shall be a monthly payment of half the difference between the monthly earnings which the workman was earning at the time of the accident and the monthly earnings which he is earning or is capable of earning in some suitable employment or business after the accident:

Provided that - 


(i) (Deleted by 17 of 1963, s. 3.);

(ii) neither the aggregate of the periodical payments nor the lump sum payable under this subsection shall exceed the lump sum which would be payable in respect of the same degree of incapacity under subsection (1) of section 7 or section 8, as the case may be, if the incapacity were permanent;

(iii) the period covered by hospitalization or absence from duty certified necessary by a medical practitioner shall be regarded as a period of temporary total incapacity irrespective of the outcome of the injury, and any period subsequent thereto but preceding final assessment of disability shall be regarded as a period of temporary partial incapacity, both periods being continuous with each other, variations in payments notwithstanding, and the maximum duration of periodical payments under this section shall not exceed ninety-six months;

(iv) in the event of death or permanent incapacity following after temporary incapacity, no deduction shall be made from the lump sum payable under section 6, section 7 or section 8 by reason of periodical payments or a lump sum payment having been made under this section.

(2) (a) In fixing the lump sum or periodical payments payable under subsection (1), a deduction may be made of the value of any payment, allowance or benefit, including the value of any food, fuel or quarters, which the workman may receive from the employer during the period of incapacity:

Provided that the amount payable after such deduction shall not, if a periodical payment, be less than a monthly payment of half the difference between the basic wage which the workman was earning at the time of the accident and the basic wage he is earning or is capable of earning in some suitable employment or business after the accident, or shall not, if a lump sum, be less than a sum calculated accordingly having regard to the probable duration and probable changes in the degree of the incapacity.

(b) For the purposes of this subsection, "basic wage" means the workman's monthly earnings less the value of any food, fuel or quarters received by the workman from the employer or cash received in lieu thereof.

(3) On the ceasing of the incapacity before the date on which any periodical payment falls due, there shall be payable in respect of that period a sum proportionate to the duration of the incapacity in that period.

(4) Where a workman in receipt of periodical payments under this section intends to leave the neighbourhood in which he was employed, for the purpose of residing elsewhere, he shall give notice of such intention to the employer, who may agree with the workman for the redemption of such periodical payments by a lump sum, or for the continuance of such periodical payments; and, if the employer and the workman are unable to agree, either party may apply to the court, which shall have jurisdiction to order such redemption and to determine the amount to be paid or to order the continuance of the periodical payments:

Provided that any lump sum so ordered to be paid together with the periodical payments already made to the workman shall not exceed the lump sum which would be payable in respect of the same degree of incapacity under subsection (1) of section 7, or section 8, as the case may be, if the incapacity were permanent.

(5) If a workman in receipt of periodical payments under this section leaves the neighbourhood in which he was employed, for the purpose of residing elsewhere, without giving notice as provided in subsection (4), or having given such notice leaves the neighborhood as aforesaid without having come to an agreement with his employer for the redemption or continuance of such periodical payments, or without having made an application to the court under subsection (4), he shall not be entitled to any benefits under the provisions of this Act during or in respect of the period of his absence; and if the period of such absence exceeds six months the workman shall cease to be entitled to any benefits under this Act.
Method of Calculating Earnings.



10. (1) For the purposes of this Act, the monthly earnings of a workman shall be computed in such manner as is best calculated to give the rate per month at which the workman was being remunerated at the date of the accident:
Provided that -
(i) where by reason of the shortness of the time during which the workman has been in the employment of his employer or the casual nature of the employment, or the terms of his employment, it is impracticable to compute the rate of remuneration in the manner aforementioned, regard may be had to the average monthly amount which, during the twelve months preceding the accident, was being earned by a person of similar earning capacity in the same grade employed at the same work by the same employer or, if there is no person so employed, by a person of similar earning capacity in the same grade employed in the same class of employment and in the same district; and

(ii) for the purposes of assessing compensation payable in the case of permanent incapacity - 



(a) where the workman was, at the date of the accident, under the apparent age of eighteen years his earnings shall be deemed to be such amount as, had he not met with the accident, he would probably have received upon attaining the age of eighteen years or at the end of a period of five years after the accident, whichever calculation is more favourable to the workman; and

(b) where the workman was, at the date of the accident, employed under a contract of apprenticeship, improvership or learnership, his earnings shall be deemed to be such amount as, had he not met with the accident, he would probably have received upon the completion of his apprenticeship,  improvership or learnership.

(2) For the purposes of subsection (1), employment by the same employer means employment by the same employer in the grade in which the workman was employed at the time of the accident, uninterrupted by absence from work due to


illness or any other unavoidable cause.

(3) Where the workman had entered into concurrent contracts of service with two or more employers under which he worked at one time for one such employer and at another time for another such employer, his monthly earnings shall be computed as if his earnings under all such contracts were earnings in the employment of the employer for whom he was working at the time of the accident:

Provided that the earnings of the workman under the concurrent contract shall be disclosed to any other employer at the time of his engagement with the latter and shall be taken into account only so far as the workman is incapacitated from performing the concurrent contract.

(4) Upon request of the workman to the employer liable to pay compensation, that employer shall furnish in writing a list of the earnings which have been earned by that workman upon which the amount of the monthly earnings may be calculated for the purposes of this section.


Persons Entitled to Compensation.

 

11. (1) The compensation shall be payable to or for the benefit of the workman or, where death results from the injury, to or for the benefit of his dependants as provided by this Act.


(2) Where there are both total and partial dependants, nothing in this Act shall be construed as preventing the compensation being allotted partly to the total and partly to the partial dependants.
(3) Where a dependant dies before a claim in respect of death is made under this Act or, if a claim has been made, before an order for the payment of compensation has been made, the legal personal representative of the dependant shall have no right to payment of compensation, and the claim for compensation shall be dealt with as if that dependant had died before the workman.


Distribution of Compensation.



12. (1) The compensation shall be payable to or for the benefit of the workman or, where death results from the injury, to or for the benefit of his dependants as provided by this Act.
(2) Where there are both total and partial dependants, nothing in this Act shall be construed as preventing the compensation being allotted partly to the total and partly to the partial dependants.
(3) Where a dependant dies before a claim in respect of death is made under this Act or, if a claim has been made, before an order for the payment of compensation has been made, the legal personal representative of the dependant shall have no right to payment of compensation, and the claim for compensation shall be dealt with as if that dependant had died before the workman.
Requirements as to Notice of Accident and Application for Compensation.



13. Proceedings for the recovery under this Act of compensation for an injury shall not be maintainable unless notice of the accident in the prescribed form has been given by or on behalf of the workman as soon as practicable after the happening thereof and before the workman has voluntarily left the employment in which he was injured, and unless the claim for compensation with respect to such accident has been made within six months from the occurrence of the accident causing the injury or, in the case of death, within six months from the time of death:
Provided that -
(i) the want of, or any defect or inaccuracy in, such notice shall not be a bar to the maintenance of such proceedings if the employer is proved to have had knowledge of the accident from any other source at or about the time of the accident, or if it is found in the proceedings for settling the claim that the employer is not, or would not if a notice or an amended notice were then given and the hearing postponed be, prejudiced in his defence by the want, defect or inaccuracy, or that such want, defect or inaccuracy was occasioned by mistake or other reasonable cause;
(ii) the failure to make a claim for compensation within the period above specified shall not be a bar to the maintenance of such proceedings -
(a) in the case of a workman whose earnings do not exceed such amount as may be prescribed; or
(b) in the case of any other workman, if it is found that the failure was occasioned by mistake or other reasonable cause, so, however, that no proceedings for the recovery of compensation shall be maintainable unless the claim for compensation is made within a period of three years from the date of the accident.

Employer to Report the Injury To, or Death Of, a Workman and Method of Notification.



14. (1) Notice of an accident, causing injury to a workman, of such a nature as would entitle him to compensation under this Act shall be given in the prescribed form to the labour officer of the area or, where there is no such officer, to the District Commissioner of the district by the employer of such workman as soon as practicable after the happening thereof and before the workman has voluntarily left the employment in which he was injured.
(2) When the death of a workman from any cause whatever is brought to the notice, or comes to the knowledge, of his employer, the employer shall, as soon as practicable after the occurrence of the death, give notice thereof in the prescribed form to the labour officer of the area or, where there is no such officer, to the District Commissioner of the district, in which the workman was employed; and such notice shall state the circumstances of the death of the workman if they are known to the employer.
(3) Any employer who, without reasonable cause, fails to comply with the provisions of subsection (1) or subsection (2) shall be guilty of an offence and liable to a fine not exceeding one thousand shillings.
(4) Nothing in this section shall prevent any person from making a claim for compensation under this Act.
(5) The provisions of section 219 of the Criminal Procedure Code shall not apply in respect of any offence against this section.
Medical Examination and Treatment.



15. (1) Where a workman has given notice of an accident, the employer shall, as soon as reasonably possible after the date on which notice has been given, arrange to have him medically examined free of charge to the workman by a medical practitioner named by the employer and agreed by the workman (so, however, that such agreement shall not be unreasonably withheld); and any workman who is in receipt of periodical payments under section 9 shall submit himself for such medical examination from time to time, as may be required by the employer.
(2) The workman shall, when required, attend upon the medical practitioner at the time and place notified to the workman by the employer or the medical practitioner, provided such time and place are reasonable.

(3) In the event of the workman being, in the opinion of any medical practitioner, unable or not in a fit state to attend on the medical practitioner named by the employer that fact shall be notified to the employer, and the medical practitioner so named shall fix a reasonable time and place for a personal examination of the workman and shall send him notice accordingly.

(4) If the workman fails to submit himself for such examination, his right to compensation shall be suspended until such examination has taken place; and if such failure extends for a period of fifteen days from the date when the workman was required to submit himself for examination under the provisions of subsection (2) or subsection (3), as the case may be, no compensation shall be payable, unless the court is satisfied that there was reasonable cause for such failure.

(5) (Deleted by 10 of 1968, s. 8.).

(6) During the period of temporary total incapacity, the employer shall arrange to submit the workman for normal medical treatment at the expense of the employer; and such normal medical treatment shall include any specialist treatment which the medical practitioner may advise the workman to undergo.

(7) If the workman has failed to submit himself for treatment by a medical practitioner when so required under subsection (6), or having submitted himself for such treatment has disregarded the instructions of such medical practitioner, then, if it is proved that such failure or disregard was unreasonable in the circumstances of the case and that the injury has been aggravated thereby, the injury and resulting incapacity shall be deemed to be of the same nature and duration as they might reasonably have been expected to be if the workman had submitted himself for treatment by, and duly carried out the instructions of, such medical practitioner, and compensation, if any, shall be payable accordingly.

(8) Where under this section a right of compensation is suspended, no compensation shall be payable in respect of the period of suspension.
(9) Notwithstanding the preceding provisions of this section, where a claim for compensation is made in respect of the death of a workman, then, if the workman failed to submit himself to examination by a medical practitioner when so required under this section or failed to submit himself for treatment by a medical practitioner when so required under this section or having submitted himself for such treatment disregarded the instructions of such medical practitioner, and if it is proved that such failure or disregard was unreasonable in the circumstances of the case and that the death of the workman was caused thereby, the death shall not be deemed to have resulted from the injury, and no compensation shall be payable in respect of the injury.
Disputes on Assessment of Disability to Be Referred to Medical Board.



15A. (1) If the final assessment of disability made by a medical practitioner, after medical examination in accordance with section 15, is disputed by another medical practitioner named by either the employer or the workman, the Labour Commissioner shall refer the question to a Medical Board for determination, and the decision of such Board shall be final.
(2) Medical Boards shall be appointed by the Director of Medical Services and shall consist of a chairman and two medical practitioners:
Provided that a person shall not be a member of a Medical Board if -
(i) he is or may be directly affected by the case in which such questions arise; or
(ii) he has taken any part in the case, as a medical practitioner who has attended the claimant or to whom any question has been referred for examination and
report.
Agreement as to Compensation.



16. (1) The employer and workman may, with the approval of the Labour Commissioner or a person appointed by him in writing in that behalf, after the injury in respect of which the claim to compensation has arisen, agree in writing as to the compensation to be paid by the employer; and such agreement shall be in duplicate, one copy to be kept by the employer and one copy to be kept by the workman:
Provided that - 

(i) the compensation agreed upon shall not be less than the amount payable under this Act; and


(ii) where the workman is unable to read and understand writing in the language in which the agreement is expressed, the agreement shall not be binding on him unless it is endorsed with a certificate of a District Commissioner, a labour officer or a person appointed by the Labour Commissioner in writing in that behalf to the effect that he read over and explained to the workman the terms thereof and that the workman appeared fully to understand and approve of the agreement.
Determination of Claims.



17. (1) If an employer on whom notice of the accident has been served under section 13 does not within twenty-one days after the receipt of the notice agree in writing with the workman as to the amount of compensation to be paid, the workman may, in the prescribed form and manner, make an application for enforcing his claim to compensation to the court having jurisdiction in the district in which the accident giving rise to the claim occurred.
(2) All claims for compensation under this Act, unless determined by agreement, and any matter (except disputes as to the assessment of disability which fall to be determined under section 15A) arising out of proceedings thereunder shall be determined by the court whatever may be the amount involved, and the court may, for that purpose, call upon any Government officer or any independent medical practitioner to give evidence, if the court is of opinion that such officer or practitioner is, by virtue of his expert knowledge, able to assist the court.
Review.
18. (1) Any periodical payment payable under this Act, either under agreement between the parties or under an order of the court, may be reviewed by the court on the application either of the employer or of the workman:

Provided that where the application for review is based on a change in the condition of the workman any such application shall be supported by a certificate of a medical practitioner if the services of a medical practitioner are available.


(2) Any periodical payment may, on review under this section, subject to the provisions of this Act, be continued, increased, diminished, converted to a lump sum or ended; and, if the accident is found to have resulted in permanent incapacity, the periodical payment shall be converted to the lump sum to which the workman is entitled under section 7 or section 8, as the case may be, and such lump sum shall be dealt with in accordance with subsection (2) of section 12.
(3) Where application is made by an employer under this section for any periodical payment to be ended or diminished, and the application is supported by the certificate of a medical practitioner, the employer may pay into court the periodical payment, or so much thereof as is equal to the amount by which he contends that the periodical payment should be diminished, to abide the decision of the court made on review under this section.
(4) In making a review under this section, the court shall have regard only to the capacity for work of the workman as affected by the accident.
Limitation of Power of Employer to End or Decrease Periodical Payments.



19. Subject to subsection (5) of section 9, subsection (4) of section 15, and subsection (3) of section 18, an employer shall not be entitled, otherwise than in pursuance of an agreement or an order of the court -
(a) to end periodical payments except -
(i) where a workman resumes work and his earnings are not less than the earnings which he was obtaining before the accident; or
(ii) where a workman dies;
(b) to diminish periodical payments, except that, where the earnings of a workman in receipt of periodical payments, together with such payments, exceed the amount of his earnings at the date of the accident, the employer may diminish the payments to such workman by an amount equal to such excess.
Jurisdiction of Court.



20. (1) Save as is provided in this Act and any regulations made thereunder, the court shall, upon or in connexion with any question to be investigated or determined thereunder, have all the powers and jurisdiction exercisable by a subordinate court of the first class in or in connexion with civil actions in such court, and the law, rules and practice relating to such civil actions and to the enforcement of judgments and orders of the court shall mutatis mutandis apply.
(2) Where, in any proceedings under this Act on a claim for compensation in respect of the death of a workman, the court is satisfied that other or sufficient evidence as to the dependency on the deceased workman of a person claiming to be a dependant, residing outside the district in which the proceedings are being taken, or as to the degree of such dependency, cannot be procured, or cannot be procured without undue hardship to the claimant or other party to the proceedings, a statement as to the dependency and as to the degree of dependency of the claimant, signed by the District Commissioner of the district in which the claimant resides, whether within Kenya or in any other territory, shall be prima facie proof of the facts stated therein, and the signature of the District Commissioner shall be admitted without proof unless the court has reason to doubt the genuineness thereof.
(3) If in such proceedings any evidence is adduced which in the opinion of the court traverses the facts set out in such a statement, or if for any other reason the court thinks fit, the court may request a court having jurisdiction in the district in which a person claiming to be a dependant resides to investigate the fact of the dependency and the degree of the dependency of such person; and the record of any such investigation, including the finding of the court thereon, shall be receivable as evidence in the proceedings, and a certificate signed by a magistrate or an officer of the court which has conducted the investigation shall be sufficient proof of such record, and such signature shall be admitted without proof unless the court has reason to doubt the genuineness thereof.
(4) Where a request is received by a court from a court in another district, whether within Kenya or in any other territory, for an investigation of any matter arising out of proceedings for compensation instituted in such other court under this Act, or, if the other court is in another territory, under a law relating to workmen's compensation the court shall have jurisdiction to conduct such investigation, and shall transmit to such other court the record of such investigation, including its findings thereon, duly certified by the magistrate or by an officer of the court.

(5) For the purposes of this section, "territory" means Uganda or Tanzania.

21. (1) The court may, if it thinks fit, submit any question of law for the decision of a judge.
(2) Such submission shall be in the form of a special case in accordance with rules made under this Act.
Power of court to submit questions of law. 
21. (1) The court may, if it thinks fit, submit any question of law for the decision of a judge.

(2) Such submission shall be in the form of a special case in accordance with rules made under this Act.




Appeals.

22. (1) Subject to this section and section 12, an appeal shall lie to the High Court from any order of the court.
(2) Except with the leave of the court or of the High Court (which shall not be granted unless in the opinion of such court some substantial question of law is involved in the appeal), no appeal shall lie if the amount in dispute is less than two thousand shillings.
(3) No appeal shall lie in any case in which the parties have agreed to abide by the decision of the court, or in which the order of the court gives effect to an agreement come to by the parties.

(4) No appeal shall lie after the expiration of thirty days from the date of the order of the court:

Provided that the High Court may, if it thinks fit, extend the time for appealing under this section notwithstanding that the time for appealing has elapsed.
Liability in Case of Workmen Employed by Contractors.



23. (1) Where any person (in this section referred to as the principal), in the course of or for the purposes of his trade or business, contracts with any other person otherwise than as a tributer (which other person is in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this Act which he would have been liable to pay if that workman had been immediately employed by him; and, where compensation is claimed from or proceedings are taken against the principal, then, in the application of this Act, references to the principal shall be substituted for references to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed.

(2) Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by any person who would have been liable to pay compensation to the workman, independently of this section.

(3) Where a claim or application for compensation is made under this section against a principal, the principal shall give notice thereof to the contractor, who shall thereupon be entitled to intervene in any application made against the principal.

(4) Nothing in this section shall prevent a workman recovering compensation under this Act from the contractor instead of the principal.

(5) This section shall not apply in any case where the accident occurred elsewhere than on, in or about premises on which the principal has undertaken to execute the work, or which are otherwise under his control or management.
Remedies Against Both Employer and Stranger.



24. Where the injury in respect of which compensation is payable under this Act was caused under circumstances creating a legal liability in some person, other than the employer, to pay damages in respect thereof -
(a) the workman may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for such compensation:
Provided that -
(i) if the workman has recovered compensation under this Act before damages have been awarded in such proceedings, the amount of such compensation shall be deducted from the damages to be so awarded;
(ii) if the workman has recovered damages in such proceedings before compensation under this Act has been paid, then, notwithstanding this Act, the amount of such compensation shall be abated by the amount of damages so recovered; and
(b) if the workman has recovered compensation under this Act, the person by whom the compensation was paid, and any person who has been called on to pay an indemnity under section 23 relating to liability in case of workmen employed by contractors, shall be entitled to be indemnified as regards the amount of compensation, including costs, by the person so liable to pay damages, as aforesaid, and any question as to the right to and amount of any such indemnity shall, in default of agreement, be settled by civil suit or, by consent of the parties, by arbitration under the Arbitration Act.
Proceedings Independently of This Act.
25. (1) Where the injury was caused by the personal negligence or wilful act of the employer or of some other person for whose act or default the employer is responsible, nothing in this Act shall prevent proceedings to recover damages being instituted against the employer in a civil court independently of this Act:

Provided that -


(i) if damages are awarded after compensation has been paid, the amount of damages awarded in such proceedings shall take into account the compensation paid in respect of the same injury under this Act;
(ii) a judgment against the employer in such proceedings shall be a bar to proceedings under this Act in respect of the same injury at the suit of any person by whom or on whose behalf the proceedings against the employer were taken.
(2) If, in proceedings independently of this Act or on appeal, it is determined that the employer is not liable under such proceedings, the court in which such proceedings are taken or the appellate tribunal may proceed to determine whether compensation under this Act is liable to be paid to the plaintiff, and may assess the amount of compensation so payable, but may deduct from such compensation any extra costs which in the opinion of the court or appellate tribunal have been incurred by the employer by reason of the proceedings having been taken independently of this Act.


Minister may by Order Require Employers to Insure.

26. (1) The Minister may, by order published in the Gazette, require any employer or class of employers to insure and keep himself or themselves insured, with such insurers as may be approved by the Minister, in respect of any liability which he or they may incur under this Act to any workmen employed by him or them.
(2) Where the Minister has made any order under subsection (1), he may exempt from the provisions thereof any employer to whom such order applies who provides and maintains in force a security which complies with the requirements of subsection

(3), and any exemption so granted shall continue in force only so long as such security continues in force.


(3) For the purposes of subsection (2), a security shall consist of an undertaking by a surety approved by the Minister to make good, subject to any conditions specified therein and up to an amount approved by the Minister, any failure by the employer to discharge any liability which he may incur under this Act to any workmen employed by him.
(4) Any employer who acts in contravention of any order made under subsection (1) Shall be guilty of an offence and liable to a fine not exceeding one thousand shillings or to imprisonment for a term not exceeding three months, or to both and, if the contravention in respect of which he is convicted is continued after the conviction, he shall be guilty of a further offence and liable in respect thereof to a fine not exceeding one hundred shillings for each day on which the contravention is so continued.
Provisions as to Bankruptcy of Employer.



27. (1) Where any employer has entered into a contract with any insurers in respect of any liability, under this Act, to any workman, then, in the event of the employer becoming bankrupt, or making a composition or arrangement with his creditors, or, if the employer is a company, in the event of the company having commenced to be wound up or a receiver or manager of the company's business or undertaking having been duly appointed, the rights of the employer against the insurers as respects the liability shall, notwithstanding anything contained in any laws relating to bankruptcy and the winding-up of companies for the time being in force, be transferred to and vest in the workman, and upon any such transfer the insurers shall have the same rights and remedies and be subject to the same liabilities as if they were the employer:

Provided that the insurers shall not be under any greater liability to the workman than they would have been under to the employer.

(2) If the liability of the insurers to the workman is less than the liability of the employer to the workman, the workman may prove for the balance in the bankruptcy or liquidation, or, as the case may be, he may recover the balance from the receiver or manager.

(3) There shall be included amongst the debts which - 



(a) under section 38 of the Bankruptcy Act are in the distribution of the property or assets of a bankrupt, to be paid in priority to all other debts: and

(b) under section 311 of the Companies Act are in the winding-up of a company, to be paid in priority to all debts,
the amount due in respect of any compensation or liability for compensation accrued before the following dates, that is to say - 

(i) in the first case the date of the receiving order; and

(ii) in the second case the date of commencement of the winding-up of the company.

(4) Where the compensation is a periodical payment, the amount due in respect thereof shall, for the purposes of subsection (3) be taken to be the amount of the lump sum for which the periodical payment could, if redeemable, be redeem-


ed if the employer made an application for that purpose under this Act.

(5) Where the bankrupt or company in liquidation has entered into such a contract with insurers as is referred to in subsection (1), the provisions of subsection (3) shall not apply in respect of the liability of the employer to the workman or that part thereof which is met by the insurers.


Application to Persons Employed on Ships.



28. (1) This Act shall apply to masters, seamen and apprentices to the sea service, provided that such persons are workmen within the meaning of this Act, and are members of the crew of any ship registered in Kenya, subject to the following modifications -

(a) the notice of accident and the claim for compensation may, except where the person injured is the master, be given to the master of the ship as if he were the employer, but where the accident happened and the incapacity commenced on board the ship it shall not be necessary to give any notice of the accident;

(b) in the case of the death of the master, seaman or apprentice, the application for compensation shall be made within three months after news of the death has been received by the claimant;

(c) whenever in the course of any legal proceedings under this Act the testimony of any witness is required in relation to the subject matter of the proceeding, then, upon due proof that the witness cannot be found in Kenya, any deposition which the witness may have previously made on oath in relation to the same subject matter before any justice or magistrate or consular officer elsewhere and which, if the proceedings had been under the Merchant Shipping Act, would have been admissible in such proceedings by virtue of sections 299 and 304 of that Act, shall be admissible in evidence subject to similar conditions to those laid down in those sections;

(d) (Deleted by 35 of 1967, 3rd Sch.);

(e) the periodical payment shall not be payable in respect of the period during which the owner of the ship is, under any law in force for the time being in Kenya relating to merchant shipping, liable to defray the expenses of maintenance of the injured master, seaman or apprentice.

(2) This Act shall not apply to such members of the crew of a fishing vessel as are remunerated wholly or mainly by shares in the profits or the gross earnings of the working of such vessel, except in such cases and subject to such modifications as the Minister may by order provide.

(3) This Act shall also apply to any person, not being a master, seaman or apprentice to the sea service, employed on board any such ship as is mentioned in this section, if he is so employed for the purposes of the ship or of any passengers or cargo or mails carried by the ship, and if he is otherwise a workman within the meaning of this Act.

(4) In this section, except where the context otherwise requires- 


"Kenya ship", "vessel", "master", "seaman" and "port" have the same meaning as in the Merchant Shipping Act;

"manager", in relation to a ship, means the ship's husband or other person to whom the management of the ship is entrusted by or on behalf of the owner;


"sea service" includes service on Lake Victoria.
Procedure Where Workman's Earnings Do Not Exceed Prescribed Amount Per Month.



29. (1) Notwithstanding anything contained in this Act, where the workman's earnings do not exceed such amount per month as may be prescribed, the following provisions shall apply and, in the case of conflict or inconsistency, shall prevail over any other provisions of this Act, but any such provisions as are not inconsistent shall also apply in relation to such workman -
(a) any compensation shall be paid by the employer to an officer and the officer shall pay any such sum, in the case of disablement, to the workman entitled to receive it and in the case of the death of the workman to any dependant or dependants deemed by the officer to be dependent upon such workman; and where there is more than one dependant the officer shall determine the degree of dependency;
(b) the form and manner in which payments shall be made by an officer under paragraph (a) shall be in the discretion of the officer, subject to any general or special directions of the Labour Commissioner;

(c) any notices required under the provisions of this Act to be served by a workman may be served by an officer;
(d) in the case of the death of the workman any agreement made in pursuance of subsection (1) of section 16 shall be between the employer and any dependant or dependants deemed by an officer to be dependent upon such workman, and where there is more than one dependant the officer shall determine the degree of dependency; and
(e) an officer to whom compensation has been paid by an employer under paragraph (a) may, in the case where neither the workman nor any dependant entitled to receive it can be traced, repay the money to the employer on such conditions as the officer may think fit to impose.
(2) In this section, "officer" means the Labour Commissioner, the labour officer of the area in which the accident occurs or, where there is no such officer, the District Commissioner of the district in which the accident occurs, and such other person as the Labour Commissioner may appoint in writing to be an officer for the purposes of this section.
Contracting Out.



30. Any contract or agreement, whether made before or after the commencement of this Act, whereby a workman relinquishes any right to compensation from an employer for injury arising out of and in the course of his employment shall be null and void in so far as it purports to remove or reduce the liability of any person to pay compensation under this Act.
Compensation Not to Be Assigned, Charged or Attached.



31. Compensation payable under this Act shall not be capable of being assigned, charged or attached, and shall not pass to any other person by operation.
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