The Legal gap in vaccine injury compensation advocating for the implementation of a no-fault scheme for state-approved vaccines in Kenya

Abstract

The deployment of vaccine programs in Kenya is governed by various legal and ethical frameworks. However, the absence of a national no-fault vaccine injury compensation scheme leaves individuals who suffer adverse effects without adequate legal protection or financial redress. Currently, Kenya’s fault-based system requires victims to prove negligence via tort claims, creating significant barriers to compensation for those with and undermining public trust in vaccination efforts. This study critically examines the legal and policy gaps in compensation for adverse effects following immunization and explores how Kenya can establish a no-fault compensation model that aligns with global best practices. The study uses a comparative legal analysis to evaluate the legislative, judicial, and administrative framework of the UK's Vaccine Damage Payment Scheme (VDPS) as a possible model for Kenya to follow. The study also employs doctrinal and policy analysis to evaluate the effectiveness of Kenya’s existing legal provisions and their compatibility with a no-fault scheme. The results of findings show that although vaccination programs in Kenya have advanced significantly, those who suffer from adverse effects after immunization, especially those who cannot afford legal claims, have limited access to justice due to the absence of a formal vaccine injury compensation scheme. The research highlights key challenges, including jurisprudential gaps, regulatory ambiguities, and financial sustainability concerns. This study contributes to the discourse on health law, equity, and public trust in vaccination programs, offering a new perspective on the role of a no-fault compensation scheme in Kenya’s legal system. It recommends legislative amendments, administrative reforms, and sustainable funding mechanisms to facilitate the establishment of a fair, transparent, and accessible vaccine injury compensation scheme. By addressing this legal gap, Kenya can enhance public confidence, align with international standards, and uphold the constitutional right to health.