Attorney General v Law Society of Kenya & another (Civil Appeal 133 of 2011) [2017] KECA 176 (KLR)

While workers' compensation insurance is a progressive and beneficial idea, the Government cannot dictate to employers from which insurer to take the policy. Sufficient regulatory measures exist under the Insurance Act through the IRA. The approval requirement conflicts with section 80 of the former Constitution and Article 36 of the 2010 Constitution on freedom of association. The role of the Executive is limited to ensuring compliance with the law, not micro-managing implementation.

The Court disagreed with the High Court's reliance on section 77 (fair trial for criminal charges) but agreed the section fails. Where an employee is injured through willful misconduct, criminal acts or contrary to instructions, the employer must be free to raise defences of illegality or contributory negligence, consistent with the ex turpi causa principle. Strict liability in the Rylands v Fletcher sense has no application as there is no liability without fault in Kenya. The section fails under Article 47 on fair administrative action as arbitrary in its terms.

The Court held that where a clear procedure for redress of a particular grievance is prescribed by the Constitution or an Act of Parliament, it should be strictly followed, citing the Supreme Court in Samuel Kamau Macharia and Speaker of the National Assembly v Karume. The Director's powers of inquiry, award and review are legitimate, subject to review and an appeal to the Employment and Labour Relations Court. The High Court's invalidation of these sections was therefore in error.

The learned Judge invalidated section 25 without giving reasons, and neither the memorandum of appeal nor the parties' submissions addressed it. Nonetheless, exercising its first appellate powers, the Court held that subsection (3) gives the employee the option of having a medical practitioner of his choice present during an examination by a designated practitioner, so no party is discriminated against. It was in error to strike it down for conflicting with section 82 of the former Constitution.

The subsection grants a right of appeal to the Industrial Court only to an objector, not to the affected party. Applying legislative intent, the Court could see no reason why in adversarial litigation only one party would have a right of appeal, but it considered this a pure drafting error that does not offend the Constitution and which Parliament can easily amend. The learned Judge's finding of discrimination under section 82 was accordingly set aside.

Claimants with pending cases under the repealed Workmen's Compensation Act or common law have legitimate expectations their cases would be concluded under the judicial process invoked. The legislative practice when a new judicial forum replaces an existing system is to finalize pending proceedings in the previous forum, as under section 33 of the Employment and Labour Relations Act and section 30(2) of the Environment and Land Court Act. Section 23 of the Interpretation Act preserves prior rights and obligations. The High Court's invalidation of section 58(2) was set aside.