I am a housewife writing on behalf of my husband, who is currently unemployed after a severe workplace accident. For seven years, he worked as a machine operator until a company asset severed his hand. Following the injury, the company terminated his contract and paid him Sh200,000 as his final dues. He now depends entirely on my meager grocery business for survival. Were this termination and payout done within the confines of Kenyan law? If not, how can we find justice and claim proper compensation for his permanent disability and unfair dismissal?
When a worker in Kenya suffers a sudden physical disability due to an accident at the workplace, the consequences extend far beyond the immediate injury. The disruption affects their personal wellbeing, their long‑term health, and the economic stability of their family. Although no statutory framework can fully compensate for the emotional, psychological, or physical toll of such an event, the law establishes clear boundaries to regulate how employers must respond. These protections exist because, in moments of crisis, some employers attempt to take advantage of a worker’s vulnerability by offering arbitrary, inadequate lump‑sum payments that fall far below legal requirements. To prevent such exploitation, the intersection between sudden disability and employment separation is governed by a comprehensive legal framework anchored in the Constitution of Kenya, the Employment Act of 2007, the Occupational Safety and Health Act (OSHA), and the Work Injury Benefits Act (WIBA) of 2007.
The starting point is Article 41 of the Constitution, which guarantees every worker the right to fair labour practices, including fair remuneration and humane working conditions. When an employee is injured on duty and later faces possible separation from employment, two legal regimes are activated simultaneously. The first concerns occupational health and compensation, addressing the physical harm suffered. The second concerns employment law, which regulates the fairness and legality of any termination process.
The compensation regime is primarily governed by WIBA, which imposes strict liability on employers. This means that once a worker is injured in the course of employment, the employer must compensate them regardless of fault. OSHA complements this by requiring employers to maintain safe working environments and take all reasonable steps to prevent workplace injuries. If, for example, a factory operator loses a limb or hand to an industrial machine, the law automatically categorizes this as a permanent partial disability.
To initiate compensation, the law removes employer discretion regarding reporting timelines. Employers must report fatal accidents to the Department of Occupational Safety and Health Services (DOSHS) within 24 hours, and non‑fatal injuries within seven days. They must also cover all reasonable medical expenses related to treatment and rehabilitation. Importantly, employers cannot guess or negotiate the value of a lost body part. DOSHS applies a standardised statutory formula that multiplies the medically assessed percentage of disability by 96 months of the employee’s salary, ensuring fairness and uniformity.
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The second legal issue arises when an employer considers terminating the employment contract on grounds of medical incapacity. While the law recognises that permanent disability may eventually make continued employment impossible, an employer cannot dismiss an injured worker arbitrarily. Any decision must comply with the standards of fairness and administrative justice under Article 47 of the Constitution.
Kenyan jurisprudence has clarified these obligations. In Kennedy Nyanguncha Omanga v Bob Morgan Services Limited (2013), the court held that employers must give injured workers adequate time to recover, subject them to independent medical assessments, and explore “reasonable accommodation.” This includes assessing whether the employee can be reassigned to lighter or alternative duties, such as supervisory or administrative roles, that align with their changed physical capacity. Similarly, in Lucy Chepkemoi v Sotik Tea Company Limited (2022), the court emphasised that employers must demonstrate genuine efforts to modify the work environment to accommodate the employee’s new realities.
If medical separation becomes unavoidable, the employer must follow the procedural safeguards in Section 41 of the Employment Act. As affirmed in Ndung’u v Safaricom Kenya PLC (2025), the employee must receive clear notice in a language they understand and be allowed to respond personally or through a representative. Attempts to disguise a summary dismissal as a “disengagement process” without these steps are unlawful.
Finally, courts strictly limit the use of discharge vouchers to bar future claims. In Coastal Bottlers v Kimathi Mithika (2018 ), the Court of Appeal held that a discharge signed when an employee is vulnerable, unrepresented, or under financial pressure constitutes economic duress and is invalid. Such documents cannot prevent an injured worker from pursuing full legal remedies and statutory compensation.
