Law Society of Kenya v Attorney General & another
The bottom line
#Supreme Court upholds WIBA's dispute resolution process as constitutional, preserving employer-employee protections.
What this practically means
#The Supreme Court ruled that the Work Injuries Benefits Act (WIBA) does not violate the Constitution. It found that sections requiring disputes to first go through the Director before court are a valid alternative process, not a denial of justice. Medical examination rules are fair to both sides. Retroactive application of the law is allowed because it does not take away existing rights. The Court of Appeal's decision was upheld.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.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.
- 2.What are the appropriate orders to issue, including on costs?
Key legal issues
#Whether sections 16, 23(1), and 52(1) & (2) of WIBA are inconsistent with the Constitution.
The sections are not unconstitutional. Section 16, read with sections 23 and 52, creates a statutory mechanism for dispute resolution that does not oust court jurisdiction or deny access to justice.
The court held that section 16 cannot be read in isolation; it must be read together with sections 23 and 52, which provide for initial resolution by the Director and an appeal to the Industrial Court. This mechanism is an alternative dispute resolution process, not a denial of access to justice. The Director's functions under section 23 are quasi-judicial and subject to High Court supervision under Article 165(6). Section 52's reference to 'objector' was a drafting error, not an intention to limit appeals to one party. The court found no inconsistency with either the former or the current Constitution.
Whether section 25(1) and (3) of WIBA is discriminatory and inconsistent with the Constitution.
The section is not discriminatory. It ensures objective medical examinations and advances equality between employers and employees.
The court rejected the petitioner's argument that the section discriminates against employers. It noted that the Director is a neutral party, employers can refer employees to their own medical practitioners with the Director's approval, and employees can have their own doctor present at the examination. These safeguards ensure fairness and objectivity, and the section does not accord differential treatment to any party.
Whether section 58(2) of WIBA, which provides for retrospective application, is unconstitutional.
The section is not unconstitutional. Retrospective operation of statutes is not per se illegal, and the section does not divest vested rights or deny access to justice.
The court applied the test from the SK Macharia case: a retroactive law is unconstitutional only if it is a bill of attainder, impairs contract obligations, divests vested rights, or is constitutionally forbidden. Section 58(2) clearly expresses legislative intent for retrospective application. While claimants have a legitimate expectation that pending cases be concluded under the invoked legal regime, the court found no evidence of denial of rights. The section is not unconstitutional.
Whether the Court of Appeal erred by focusing on the former Constitution without analysing the Constitution 2010.
The Court of Appeal did not err; the impugned provisions must be construed to conform with the Constitution 2010 under section 7 of the Sixth Schedule.
The court noted that while the Court of Appeal focused on the former Constitution, the Constitution 2010's provisions must be considered. However, the court found that the impugned sections, when read in the context of the Constitution 2010, are not inconsistent with it. The court applied the transitional provision in section 7 of the Sixth Schedule, which requires pre-2010 laws to be construed with adaptations to bring them into conformity with the Constitution 2010.
Legal principles established
#- A law is presumed constitutional; the person challenging it must prove otherwise.
- Courts look at both the purpose and effect of a law to decide if it is constitutional.
- Requiring alternative dispute resolution before court access does not violate the right to justice.
- A retroactive non-criminal law is valid unless it targets individuals, breaks contracts, or takes away vested rights.
- Pre-2010 laws must be interpreted to fit the 2010 Constitution, not automatically struck down.
Court orders
#- 1.Petition of Appeal No 4 of 2019 dated February 1, 2019 is hereby dismissed.
- 2.For the avoidance of doubt the determination in Civil Appeal No 133 of 2011 (Waki, Makhandia, Ouko JJA) is hereby upheld.
- 3.Each party shall bear their costs of the Appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Nairobi
- Civil Appeal No 133 of 2011
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Declaration that section 16 of the Act is unconstitutional
Section 16, read with sections 23 and 52, creates a statutory mechanism for dispute resolution and does not permanently limit access to courts.
Declaration that section 23(1) of the Act is unconstitutional
The Director performs quasi-judicial functions subject to High Court supervision under Article 165(6), and the section does not oust the High Court's jurisdiction.
Declaration that section 25(1) and (3) of the Act is unconstitutional
The section ensures objective medical examinations, advances equality, and does not discriminate against any party.
Declaration that section 52(1) and (2) of the Act is unconstitutional
The provision is a drafting error that does not limit appeals to one party; the inelegance should be left to the Attorney General to rectify.
Declaration that section 58(2) of the Act is unconstitutional
Retrospective operation of statutes is not per se unconstitutional; the section expresses clear legislative intent and does not divest vested rights.
Costs
Each party shall bear their costs of the Appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is our finding, therefore, that neither section 16, 23, nor 52(1) of WIBA can be said to be inconsistent with the former Constitution or the Constitution 2010.
The effect of section 25 of the Act therefore, is to ensure that the medical examination and ensuing report is objective, fair, accurate and sound.
retrospective operation of statutes is not per se illegal or in contravention of the Constitution.
At the forefront of these principles is a general but rebuttable presumption that a statutory provision is consistent with the Constitution. The party that alleges inconsistency has the burden of proving such a contention.
Petition of Appeal No 4 of 2019 dated February 1, 2019 is hereby dismissed.
Each party shall bear their costs of the Appeal.
Key timeline
#Practical implications
#Challenge WIBA provisions carefully
When advising clients on WIBA disputes, note that sections 16, 23, 25, 52, and 58(2) are now settled as constitutional. Focus arguments on factual application rather than constitutional invalidity. The Director's quasi-judicial role under section 23 is subject to High Court supervision under Article 165(6), so judicial review remains available.
WIBA dispute process is valid
Employers must follow the WIBA dispute resolution process: first report to the Director, then appeal to the Industrial Court. Do not bypass this mechanism by going directly to court. The medical examination process under section 25 is fair—you can request your own doctor with the Director's approval. Retroactive application of WIBA means claims under the old law may now be governed by WIBA.
Your access to court is protected
If you have a work injury claim, you must first go through the Director under WIBA before going to court. This is not a denial of your rights—it is a required first step. You can have your own doctor present during medical exams. If the Director's decision is unfair, you can appeal to the Industrial Court and eventually to the High Court.
Frequently asked questions
#Is WIBA constitutional in Kenya?+
Yes, the Supreme Court confirmed that WIBA sections 16, 23, 25, 52, and 58(2) are constitutional. The law's dispute resolution process does not block access to justice.
Can I go directly to court for a work injury claim in Kenya?+
No, you must first report to the Director under WIBA. Only after that process can you appeal to the Industrial Court. This is a valid alternative dispute resolution mechanism.
Does WIBA apply to accidents before the law was passed in Kenya?+
Yes, section 58(2) allows retroactive application. The Supreme Court ruled this is constitutional as long as it does not take away vested rights or break contracts.
Are medical examinations under WIBA fair to employees in Kenya?+
Yes, the Supreme Court found section 25 fair. You can have your own doctor present, and the Director ensures objectivity. Employers also have safeguards.
Later judgments citing this (25)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ndilangu v Chiration (Kna Road & Bridge Corporation (K) (Civil Case 517 of 2015) [2026] KEMC 705 (KLR)[2026] KEMC 705 (KLR)6 Aug 2026applied
- Universal Corporation Ltd & 2 others v Kenya Revenue Authority & another (Civil Appeal E775 of 2021) [2026] KECA 1528 (KLR)[2026] KECA 1528 (KLR)31 Jul 2026
- M'Mbetsa v Cabinet Secretary, Ministry of Lands & 4 others (Civil Appeal E126 of 2023) [2026] KECA 1478 (KLR)[2026] KECA 1478 (KLR)24 Jul 2026followed
- Mmula v China Road & Bridge Corporation (K) Ltd (Civil Case 216 of 2017) [2026] KEMC 281 (KLR)[2026] KEMC 281 (KLR)30 Jun 2026applied
- Embakasi Ranching Co. Ltd (Through the Directors listed on the CR 12) v Nduati & 2 others (Environment and Land Appeal E276 of 2025) [2026] KEELC 3940 (KLR)[2026] KEELC 3940 (KLR)30 Jun 2026
- Mwanjemo & 5 others v Kagiri & 9 others (Environment and Land Case 6 of 1972) [2026] KEELC 2361 (KLR)[2026] KEELC 2361 (KLR)24 Apr 2026
- Bloggers Association of Kenya (BAKE) v Attorney General & 6 others (Civil Appeal 197 of 2020) [2026] KECA 430 (KLR)[2026] KECA 430 (KLR)6 Mar 2026
- Justice v National Environmental Management Authority & 4 others (Environment and Planning Petition E027 of 2025) [2026] KEELC 345 (KLR)[2026] KEELC 345 (KLR)22 Jan 2026
- Cytonn Investment Partners Sixteen LLP & another v Official Receiver (Civil Appeal E836 of 2024) [2025] KECA 1954 (KLR)[2025] KECA 1954 (KLR)21 Nov 2025
- Manoti v Kenya Revenue Authority; Law Society of Kenya & another (Interested Parties) (Employment and Labour Relations Cause E370 of 2021) [2025] KEELRC 2918 (KLR)[2025] KEELRC 2918 (KLR)28 Oct 2025
- Friendship Containers Manufacturers Limited v Sibwoga & another (Appeal E295 of 2024) [2025] KEELRC 2794 (KLR)[2025] KEELRC 2794 (KLR)16 Oct 2025
- Friendship Containers Manufacturers Limited v Sibwoga & another (Appeal E295 of 2024) [2025] KEELRC 2794 (KLR)[2025] KEELRC 2794 (KLR)16 Oct 2025
- Techno-Plast Limited v Wafula (Appeal 13 of 2024) [2025] KEELRC 2767 (KLR)[2025] KEELRC 2767 (KLR)13 Oct 2025
- Juma & 5 others v Republic & 3 others (Civil Appeal 231 of 2019) [2025] KECA 1643 (KLR)[2025] KECA 1643 (KLR)3 Oct 2025followed
- Okindi v Kenya Maritime Authority (Cause E093 of 2024) [2025] KEELRC 2685 (KLR)[2025] KEELRC 2685 (KLR)2 Oct 2025applied
- Hassen v Kithaka (Appeal E089 of 2025) [2025] KEELRC 2508 (KLR)[2025] KEELRC 2508 (KLR)26 Sept 2025
- Losuru v Attorney General & another (Petition E001 of 2023) [2025] KEELRC 2679 (KLR)[2025] KEELRC 2679 (KLR)25 Sept 2025
- Anguso v DPL Festive Limited (Appeal E040 of 2025) [2025] KEELRC 2524 (KLR)[2025] KEELRC 2524 (KLR)22 Sept 2025
- Kayvee Construction Limited v Kodoni & another (Employment and Labour Relations Appeal E192 of 2024) [2025] KEELRC 2345 (KLR)[2025] KEELRC 2345 (KLR)30 Jul 2025followed
- Machungo v Stanbic Bank Kenya Limited (Cause E304 of 2021) [2025] KEELRC 2145 (KLR)[2025] KEELRC 2145 (KLR)18 Jul 2025
- Gitonga v Karanja Njenga Advocates (Employment and Labour Relations Cause E625 of 2021) [2025] KEELRC 2042 (KLR)[2025] KEELRC 2042 (KLR)4 Jul 2025
- Karanja v Master Star Co Ltd & another (Cause E418 of 2022) [2025] KEELRC 1636 (KLR)[2025] KEELRC 1636 (KLR)30 May 2025applied
- Wambugu v H Young & Company East Africa Limited (Employment and Labour Relations Constitutional Petition E006 of 2024) [2025] KEELRC 1498 (KLR)[2025] KEELRC 1498 (KLR)16 May 2025
- Omari v Kenya Ports Authority (Miscellaneous Application E025 of 2025) [2025] KEELRC 1068 (KLR)[2025] KEELRC 1068 (KLR)3 Apr 2025
- Ainea v Haraka Enterprises Limited (Miscellaneous Civil Application E057 of 2024) [2025] KEELRC 985 (KLR)[2025] KEELRC 985 (KLR)28 Mar 2025
Cite this brief
#Cite this brief
Caselaw, "Law Society of Kenya v Attorney General & another", Case Analysis (2019). Petition 4 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/16/eng@2019-12-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.