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Supreme CourtDismissedPetition 4 of 2019

Law Society of Kenya v Attorney General & another

Supreme Court of Kenya
3 December 2019
David Kenani MaragaD.K. MaragaMohammed Khadhar IbrahimM.K. IbrahimSmokin Charles WanjalaS.C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. Lenaola
10,475 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~42 min to read original · ~4 min brief

The bottom line

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Supreme Court upholds WIBA's dispute resolution process as constitutional, preserving employer-employee protections.

What this practically means

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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

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The Law Society of Kenya (LSK) appealed to the Supreme Court under Article 163(4)(a) of the Constitution, challenging the Court of Appeal's decision which had partially reversed the High Court's declaration that several sections of the Work Injuries Benefits Act (WIBA) were unconstitutional. The High Court had declared sections 4, 7(1) and (2), 10(4), 16, 21(1), 23(1), 25(1) and (3), 52(1) and (2), and 58(2) of WIBA null and void for contravening the former Constitution. The Court of Appeal set aside most of those declarations, upholding only the unconstitutionality of section 7 (Minister's approval/exemption) and section 10(4). LSK appealed, arguing that sections 16, 23(1), 25(1) and (3), 52(1) and (2), and 58(2) were inconsistent with both the former and the 2010 Constitution. The Supreme Court dismissed the appeal in its entirety. It held that section 16, read together with sections 23 and 52, creates a statutory mechanism for dispute resolution that does not oust court jurisdiction or deny access to justice; the Director's functions are quasi-judicial and subject to High Court supervision. Section 25 was found not discriminatory as it ensures objective medical examinations with safeguards for all parties. Section 52's reference to 'objector' was a drafting error, not an intention to limit appeals. Section 58(2)'s retrospective application was not unconstitutional as it did not divest vested rights. The court affirmed the Court of Appeal's decision and ordered each party to bear its own costs, citing public interest. The judgment also criticised a High Court judge for rendering a conflicting decision while this appeal was pending.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 2.What are the appropriate orders to issue, including on costs?

Key legal issues

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01

Whether sections 16, 23(1), and 52(1) & (2) of WIBA are inconsistent with the Constitution.

Holding

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.

Reasoning

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.

p. 21
02

Whether section 25(1) and (3) of WIBA is discriminatory and inconsistent with the Constitution.

Holding

The section is not discriminatory. It ensures objective medical examinations and advances equality between employers and employees.

Reasoning

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.

p. 23
03

Whether section 58(2) of WIBA, which provides for retrospective application, is unconstitutional.

Holding

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.

Reasoning

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.

p. 25
04

Whether the Court of Appeal erred by focusing on the former Constitution without analysing the Constitution 2010.

Holding

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.

Reasoning

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.

p. 19

Legal principles established

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  • 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

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  1. 1.Petition of Appeal No 4 of 2019 dated February 1, 2019 is hereby dismissed.
  2. 2.For the avoidance of doubt the determination in Civil Appeal No 133 of 2011 (Waki, Makhandia, Ouko JJA) is hereby upheld.
  3. 3.Each party shall bear their costs of the Appeal.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

David Kenani Maraga
majority

Wrote the judgment

Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
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

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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.

p. 21

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.

p. 20

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.

p. 23

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.

p. 20

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.

p. 25

Costs

Each party shall bear their costs of the Appeal.

Quotable passages

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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.
p. 21 Constitutionality of WIBA provisions
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.
p. 23 Non-discrimination in medical examination
retrospective operation of statutes is not per se illegal or in contravention of the Constitution.
p. 25 Retrospectivity of statutes
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.
p. 14 Presumption of constitutionality
Petition of Appeal No 4 of 2019 dated February 1, 2019 is hereby dismissed.
p. 26 Final orders
Each party shall bear their costs of the Appeal.
p. 7 Costs order

Key timeline

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Before 2010
Work Injuries Benefits Act (WIBA) enacted.
2011
High Court declared several WIBA sections unconstitutional.
2019-02-01
Law Society of Kenya filed Petition of Appeal No 4 of 2019.
2019
Supreme Court dismissed the appeal, upholding the Court of Appeal's decision.

Practical implications

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For lawyers

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.

For businesses

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.

For individuals

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

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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)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.