|Part III - Medical Aid
32. (1) The employer shall defray the reasonable expenses incurred by a workman within Kenya, or, with the approval of the Director of Medical Services, outside Kenya, as the result of an accident which would entitle the workman to compensation under the provisions of this Act -
(a) in respect of the supply, maintenance, repairs and renewal of any artificial appliances or apparatus to an amount not exceeding ten thousand shillings in all; and
(b) in respect of reasonable transport charges not exceeding in all the sum of one thousand shillings, incurred in transfer of a workman to and from a place where the necessary treatment is available, if such transfer is certified to be necessary by the medical practitioner in charge of the case.
(2) The court may, when determining any dispute in respect of compensation or upon the application of any interested person, order the payment of any of the expenses referred to in this section to the persons entitled to receive it, and if such expenses exceed the amount provided in paragraph (a) of subsection (1), the count may apportion the amount available in such manner as the court may deem expedient.
Decisions of Court in Regard to Treatment and Medical Reports.
33. (1) All disputes as to the necessity for, or the character or sufficiency of, any medical aid provided or to be provided under this Part shall be determined by the court.
(2) Any decision of the court given under subsection (1) shall be final.
Fees for medical aid to be prescribed.
34. The fees and charges for medical aid to workmen within Kenya shall be in accordance with such scale as may be prescribed, and no claim for an amount in excess of a fee or charge in accordance with that scale shall lie against any
workman or his employer in respect of any such medical aid.
PART IV - OCCUPATIONAL DISEASES
Compensation in Respect of Diseases.
35.(1) Where a medical practitioner grants a certificate -
(a) that a workman is suffering from a scheduled disease causing disablement or that the death of a workman was caused by any scheduled disease; and
(b) that such disease was due to the nature of the workman's employment and was contracted within the twenty-four months previous to the date of such
disablement or death,
the workman or, if he is deceased, his dependants shall be entitled to claim compensation under this Act as if such disablement or death had been caused by an accident, and the provisions of this Act shall, subject to this Part, mutatis mutandis, apply unless at the time of entering into the employment the workman wilfully and falsely represented in writing to the employer in reply to a specific question that he had not previously suffered from the disease:
Provided that in no event shall the workman or his dependants be entitled to compensation in respect of any causation or aggravation of the disease which was due to employment outside Kenya except in respect of a workman belonging to Kenya employed outside Kenya by his employer within Kenya.
(2) If on the hearing of an application for compensation in terms of subsection (1) the court is satisfied on the evidence that the allegations in the certificate are correct, the workman or his dependants, as the case may be, shall be entitled to compensation under this Act as if the contracting of the disease were an injury by accident arising out of and in the course of the workman's employment.
(3) Nothing in this section shall affect the right of a workman to claim compensation under this Act in respect of a disease which he contracts, being a disease other than a scheduled disease and being a disease which is a personal injury by accident arising out of and in the course of his employment, within the meaning of this Act.
Liability to Pay Compensation.
36.(1) Compensation shall be payable by the employer who last employed the workman during the period of twenty-four months referred to in section 35 unless the employer proves that the disease was not contracted while the workman was in such employment.
(2) The workman or his dependants, if so required, shall furnish to the employer from whom compensation is claimed such information as he or they may possess as to the names and addresses of all other employers who during the said twenty-four months employed the workman in the occupation to the nature of which the disease is due.
(3) If the employer alleges that the disease was in fact contracted while the workman was in the employment of some other employer and not while in his employment, he may join such other employer as a party to the proceedings in such manner as may be provided by rules of court made under section 43, and, if the allegation is proved, that other employer shall be the employer from whom the compensation is to be recoverable.
(4) If the disease is of such a nature as to be contracted by a gradual process, any other employers who during the said twenty-four months employed the workman in the occupation to the nature of which the disease is due shall be liable to make to the employer from whom compensation is recoverable such contributions as in default of agreement may be settled by civil suit, or, by consent of the parties, by arbitration under the Arbitration Act.
Fixing a Date from Which Time is to Run, Indicating Requirements as to Giving of Notice and Defining Earnings.
37. (1) In the application of this Act to disablement or death caused by a scheduled disease, references to the date of the occurrence of the accident shall be construed as meaning -
(a) in the case of a disease causing disablement, the date of the certificate referred to in section 35; and
(b) in the case of death from a disease, the date of the death of the workman.
(2) The provisions of section 13 shall apply in respect of the recovery of compensation under this Part as they apply in respect of the recovery of compensation for an injury resulting from an accident.
(3) Compensation under this Part shall be calculated with reference to the earnings of the workman under the employer from whom the compensation is recoverable, and the monthly earnings of the 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 grant of the certificate referred to in section 35:
Provided that -
(i) if the workman was not then so employed, the earnings shall be computed in such manner as is best calculated to give the rate per month at which the workman was being remunerated when he was last employed by the employer from whom compensation is recoverable;
(ii) where by reason of the shortness of the time during which the workman has been in the employment of such employer or the casual nature of his 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 last twelve months of his employment with such employer, 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
(iii) for the purpose of assessing the compensation payable in cases of permanent incapacity -
(a) where the workman was, at the date of the grant of the certificate, under the apparent age of 18 years, his earnings shall be deemed to be such amount as, had he not contracted the disease, he would probably have received upon attaining the age of 18 years or at the end of a period of five years after the date of the grant of the certificate, whichever calculation is more favourable to the workman; and
(b) where the workman was, at the date of the grant of the certificate, employed under a contract of apprenticeship, improvership or learnership, his earnings shall be deemed to be such amount as had he not contracted the disease, he would probably have received upon the completion of his apprenticeship, improvership or learnership.
Presumption as to Cause of Disease.
38. If a workman who becomes disabled by or dies of any scheduled disease was within the period of twenty-four months immediately preceding the disablement or death employed in any occupation specified in the Third Schedule opposite such disease, it shall be presumed, unless or until the contrary is proved, that the disease was due to the nature of such employment.
Saving of Right of Workman to Proceed Against Previous Employer.
39. Nothing in this Part shall be construed as preventing compensation being recovered from any employer who employed the workman during the twenty-four months referred to in section 35, if the employer who last employed the workman during that period proves that the disease was not contracted while the workman was in his employment, in which case the provisions of subsection (3) of section 36 shall apply.
Compensation to Include Medical Aid.
40. For the purposes of this Part, compensation includes medical aid within the meaning of Part III.
Power to Amend Third Schedule..
41. The Minister may, by notice in the Gazette, delete any scheduled disease from the Third Schedule and may, in like manner, insert any disease in that Schedule:
Provided that the intention to issue any such notice shall be published in the Gazette at least one month before the issue thereof, and any person wishing to do so may make his objections in writing to the Minister.
PART V - GENERAL
42. (1) The Minister may make regulations not inconsistent with this Act for the purpose of giving better effect to the purposes and provisions thereof; and without prejudice to the generality of the foregoing power he may make regulations -
(a) prescribing procedure, forms and fees;
(b) prescribing anything which is to be or may be prescribed under this Act; and
(c) requiring employers and insurers carrying on in Kenya the business of insuring employers against their liabilities under this Act to make periodic or other returns as to such matters as he may think fit, and prescribing a time limit for the making of such returns.
(2) Any person required to make a return by virtue of any regulation made under subsection (1) who-
(a) fails to make such return within the time within which he is required to make it;
(b) makes or causes to be made a return which he knows to be false in any material particular; or
(c) on being so required fails to give any information or explanation respecting the return which it is in his powers to give,
shall be guilty of an offence and liable to a fine not exceeding five hundred shillings, 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.
(3) Where a person convicted of an offence under this section is a company, the chairman and every director and every officer of the company shall be guilty of a like offence unless he proves that the act or omission constituting the offence took place without his knowledge or consent.
Rules of Court.
43. The Chief Justice may make rules of court for regulating proceedings before the court under this Act, and for the fees payable in respect thereof.
Payment of Compensation to Non-resident Workman or Dependants.
10 of 1968, S. 12.
44. (1) Compensation awarded under this Act to a workman or dependants resident outside Kenya, Uganda or Tanzania shall be paid by the employer to the Labour Commissioner, and the Labour Commissioner shall make such arrangements as he considers necessary to pay the compensation to the workman entitled to receive it or (if the workman cannot be found or is dead) to any person or persons whom the Labour Commissioner considers to be dependent upon the workman; and where there is more than one such person the Labour Commissioner shall determine in what shares the compensation shall be paid.
(2) Where compensation has been paid by an employer to the Labour Commissioner under subsection (1), and the Labour Commissioner can find neither the workman nor any person dependent upon him, the Labour Commissioner shall repay the money to the employer on such conditions as the Labour Commissioner may think fit to impose.