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By PHILIP MUYANGA
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Attorney-General Paul Kihara wants dismissed, a petition for some sections of the Work Injury Benefits Act of 2007 to be declared unconstitutional.

Through lawyer Nguyo Wachira, the AG has asked the court to find that the office of the director, under the WIBA No.13 of 2007, is properly constituted within the law.

According to the petition, the provisions of WIBA that purport to vest judicial authority in the director, whose office is created under the Act and who is neither a court or tribunal, usurp the power of the judiciary.

However, Mr Wachira told Justice Eric Ogola that issues raised in the petition by five people, are similar to those determined in the Court of Appeal and which are related to the current and previous Constitution.

“The officer of the director (WIBA) has 29 offices across the country where claims can be made,” he noted.

The litigation counsel added that no issue of impartiality has been raised against the office of the director.

The AG further argues that Section 23 (1) of WIBA gives the director the mandate to receive notice of accidents, investigate and make formal decisions on disputed matters regarding work injury benefits compensation.

He also points out that any person aggrieved by the director’s response has the right to appeal at the Employment and Labour Relations Court.

The petitioners are Juma Ndungo, Peter Shalu, Patrick Odanga, John Omayo and Sadiki Mchechemo.

Through lawyers Macmillan Jengo, Pauline Osino and Diana Munyingi, they argue that there is need for the court to sustain the jurisdiction of the magistrate’s court to handle cases arising from injuries sustained at work places.

The petitioners further say the director cannot purport to exercise judicial power as provided for under the law and note that their case raises fundamental issues of the constitutionality of various provisions of the Act.

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“There is imminent danger and infringement of the petitioner’s rights by way of dealing with the case in a manner that threatens the rights of the citizens,” suit papers state in part.

The petitioners also say that they and other citizens face the risk of substantial loss of property and infringement of their rights and that the Constitution vests judicial power in courts and tribunals only.

They also state that the current state of affairs is likely to create a huge backlog of cases in the magistrate’s court due to confusion in dealing with work injury related cases.

The petitioners say that on November 17, 2017, the Court of Appeal set aside a High Court decision that declared some sections ultra vires (beyond legal authority) of the old repealed Constitution.

They say the effect of the decision is that the magistrate and the labour courts refused to proceed with pending suits involving injuries sustained at work, saying only the office of the director under the Act had the jurisdiction.

In July last year, the High Court reported that cases arising from such injuries had stalled at various magistrates’ courts around the country could proceed.

This was after it suspended provisions of Section 16,23,53(c) and 53 (d) of Work Injury Benefit Act No.13 of 2007 which blocked the magistrates.

The order suspending the provisions of the Act was issued pending the hearing and determination of the petition filed by the five litigants whose cases had stalled.

Through lawyer Njoroge Mwangi, the Law Society of Kenya’s Mombasa chapter, which joined the suit as an interested party, supported the petition.

The judgment will be delivered on April 9.



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