Nairobi Academy (Holdings) Limited v Angar (Miscellaneous Application E004 of 2023) [2023] KEELRC 1469 (KLR)

The arbitration clause had a two-tier procedure: negotiation first, arbitration if negotiations failed. Whether the parties had settled the dispute at the negotiation stage was a question of fact requiring evaluation of evidence. The Arbitrator raised and determined it, holding the voucher covered only salary for 13 days worked and did not waive other claims. A court cannot revisit that finding of fact; to do so would be to sit on appeal over the award, which the law forbids.

The court examined the voucher's execution page and found two statements capable of varied interpretations: acknowledgment of a specific payment versus a general release of all claims. Had the document been drawn unambiguously, the dispute over its meaning would have been avoided. The Court of Appeal authority confirms a discharge voucher per se cannot absolve an employer from statutory obligations and the tribunal may examine whether it was freely and knowingly executed.

Awards are contrary to public policy only if against the law. Two months' pay in lieu of notice reflected the termination clause; eight months' compensation fell within the statutory ceiling of twelve months' salary under section 49 of the Employment Act; and costs followed the event. Since the voucher covered only 13 days' salary, awarding notice pay and compensation alongside it occasioned no double payment.

The mere failure of an adjudicator to agree with a party does not imply bias. There must be conduct that would stir the feeling of preferential treatment in a reasonable, informed bystander. The Arbitrator considered the voucher evidence and submissions; his adverse finding was a lawful exercise of judgment, and the court itself found the instrument ambivalent. No evidence of preferential conduct was adduced.