MUKAMBA & COMPANY ADVOCATES

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What the law actually allows, and why the answer is not as simple as “sue for more”

31 August 2026 | By Eugene Mukamba, Advocate

A scaffolding collapse. A factory machine with no guard. A delivery rider knocked off his motorcycle mid-shift.

The instinct of every injured worker is the same: sue the employer for what really happened. Kenyan law, however, has already decided how most of these claims must be brought — and it is not always through a lawsuit.

WIBA Is Not Optional — It Is the Route

The Work Injury Benefits Act, 2007 (WIBA) requires every employer in Kenya to carry compulsory insurance and compensates employees for injuries or diseases arising out of and in the course of employment, on a no-fault basis. You do not need to prove your employer was careless — only that the injury happened at work.

That is the trade-off at the heart of WIBA: guaranteed compensation, in exchange for giving up the uncertainty — and the potentially larger payout — of an ordinary negligence claim.

This was not settled without a fight. The constitutionality of WIBA, and specifically section 16, which channels work injury claims through the Directorate of Occupational Safety and Health rather than the ordinary courts, was challenged by the Law Society of Kenya.

After conflicting High Court and Court of Appeal decisions, the Supreme Court finally settled the matter in Law Society of Kenya v Attorney General & 2 Others, upholding WIBA as constitutional.

That decision is the law today, and it means the WIBA route — not a direct civil suit against your employer — is generally how a workplace injury claim must proceed.

So Why Does It Feel Like WIBA Pays Less?

Because it usually does, and that is by design. WIBA compensation follows a structured schedule tied to the degree of disability and your earnings, rather than the open-ended assessment of pain, suffering, and future loss that a civil court can award in a negligence claim.

For a catastrophic injury, the gap between a WIBA award and what a fully litigated negligence claim might have produced can be significant — which is precisely why understanding your options before you sign anything with your employer’s insurer matters.

Where the Door to a Wider Claim Stays Open

• Injuries caused by a negligent third party — not your employer — while you were working, such as another motorist causing a road accident during a delivery run. That claim against the third party’s insurer runs independently of WIBA.
• Injuries or circumstances falling outside “arising out of and in the course of employment”, which is a factual question worth having examined rather than assumed.
• Disputes over the Director’s assessment itself — a WIBA award can be appealed to the Employment and Labour Relations Court if it undervalues the injury.

What to Do in the First Weeks After a Workplace Injury

• Report the injury to your employer and DOSHS promptly — delay is routinely used to dispute that the injury even happened at work.
• Get a proper medical assessment on record, not just a hospital admission note.
• Keep every document your employer or their insurer sends you — including any early settlement offer, which is often lower than the eventual WIBA assessment.
• Do not sign a full and final discharge before understanding what degree of disability you may be assessed at.