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ELRCAllowedChamber Summons Application dated 14th December, 2022 (ELRC, Nairobi)· [2023] KEELRC 3054 (KLR)

Angar v Nairobi Academy (Holdings) Limited (Miscellaneous Application E210 of 2022) [2023] KEELRC 3054 (KLR)

Employment and Labour Relations Court
24 November 2023
AJAbuodha Nelson Jorum
1,514 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed a coach's Ksh 1.87 million arbitration award and converted it into an enforceable court judgment with interest.

What this practically means

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Executive summary

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The Applicant, a former Head Swimming Coach, sought recognition and adoption as a judgment of the court of a final arbitral award of 31st October, 2022 by sole arbitrator David Njuguna Njoroge awarding him ksh 1,866,455.80/= for wrongful and unfair termination of employment, plus leave to enforce it as a decree. The application was brought under section 36 of the Arbitration Act and sections 12 and 20 of the ELRC Act. The Applicant averred that his employment was terminated in February 2017, the dispute was referred to arbitration in January 2019, and the award had not been satisfied or challenged. The Respondent opposed, asserting the contract was terminated for gross misconduct after a near-drowning incident, that the dispute was settled by a binding agreement of 9th March, 2017, and that it had filed an application under section 35 of the Arbitration Act to set aside the award (ELRC Misc. Application E004 of 2023), in respect of which a stay of enforcement had been ordered. The Applicant produced a ruling of Manani J dated 15th June, 2023 dismissing the set-aside application. The court held that the Applicant had satisfied the section 36(3) preconditions by furnishing certified copies of the award and agreement, shifting the onus to the Respondent to demonstrate section 37 grounds, which it failed to do. Noting that the set-aside application had been dismissed and no appeal preferred, the court adopted the award as its decree, awarding costs and interest at court rates until payment in full.

Key legal issues

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01

Recognition and enforcement of the arbitral award under section 36 of the Arbitration Act

Holding

The award is recognized and adopted as a decree of the court; the preconditions in section 36(3) were met and no section 37 grounds were demonstrated.

Reasoning

The court noted the setting-aside application in ELRC Misc. Application E004 of 2023 was dismissed on 15th June, 2023, with no appeal preferred. The Applicant furnished certified copies of the award and arbitration agreement, satisfying section 36(3). The onus shifted to the Respondent to establish section 37 grounds for refusal, which it failed to do. The court emphasized it is not sitting as an appeal court over the arbitrator.

p. 4
02

Limited scope of judicial intervention in arbitral awards

Holding

Courts may intervene in arbitral awards only in situations specifically set out in the Arbitration Act or as agreed by the parties.

Reasoning

Relying on Omar v Muigai, which quoted Anne Mumbi Hinga v Victoria Njoki Gathara, the court reiterated the minimalist approach to judicial intervention in arbitration. Since the Respondent's set-aside application had been dismissed and no appeal was preferred, the Applicant could not be made to wait indefinitely for the fruits of the arbitration.

p. 4

Legal principles established

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  • A domestic arbitral award shall be recognized as binding and enforced upon application, and once an application to set aside the award has been dismissed and no appeal preferred, the award must be enforced unless grounds under section 37 are shown.
  • The party applying for enforcement must furnish the original or certified copies of the arbitral award and arbitration agreement; once this is done, the onus shifts to the resisting party to show grounds under section 37.

Court orders

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  1. 1.The final arbitral award of 31st October, 2022 for ksh 1,866,455.80/= is recognized and adopted as a decree of the court and is enforceable as such
  2. 2.Costs and interest at court rates are awarded to the Applicant until payment in full

Authorities

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Legislation

  • Arbitration ActSection 36
  • Arbitration ActSection 37
  • Arbitration ActSection 35
  • Arbitration ActSection 39
  • Arbitration Rules, 1997Rules 4(1), 9 and 11
  • Employment & Labour Relations Court Act (Cap. 234B)Sections 12 & 20

Cases cited (2)

  • Omar v Muigai
    (Miscellaneous Application E005 of 2021) [2022] KEHC 303 (KLR) (Commercial and Tax) (28 April 2022) (Ruling)
  • Anne Mumbi Hinga v Victoria Njoki Gathara
    [2009] eKLR
Jurisdiction invoked
Section 36 of the Arbitration Act; Rules 4(1), 9 and 11 of the Arbitration Rules, 1997; Sections 12 & 20 of the Employment and Labour Relations Court Act (Cap. 234B)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Angar v Nairobi Academy (Holdings) Limited (Miscellaneous Application E210 of 2022) [2023] KEELRC 3054 (KLR)", Case Analysis (2023). Chamber Summons Application dated 14th December, 2022 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3054/eng@2023-11-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.