Kibunja v Veterinary Laboratory Sports Club & 2 others (Tribunal Case E021 of 2023) [2024] KESDT 89 (KLR) (Civ) (7 February 2024) (Ruling)
Neutral citation:
[2024] KESDT 89 (KLR)
Republic of Kenya
Tribunal Case E021 of 2023
J Njeri Onyango, Chair, Peter Ochieng & Benard Murunga Wafula, Members
February 7, 2024
Between
Michael Kibunja
Claimant
and
Veterinary Laboratory Sports Club
1st Respondent
Vincent Landa
2nd Respondent
Francis Mwaniki
3rd Respondent
Ruling
1.The Claimant is a member registered as No. K 123 of the Veterinary Laboratory Sports Club (the Club) and has been a member of the said Club for a period of over 30 years. He describes himself as being many things in one: an engineer; a golfer; an analyst; a writer amongst others.
2.The first Respondent is a sports club that was duly registered under the Societies Act through exemption under Section 10(2) thereof and offering, amongst other services, sporting activities such as golf.
3.The second Respondent is a member of the first Respondent and in addition to his membership serves as the Golf Vice Captain of the first Respondent.
4.The third Respondent is a member of the first Respondent and in addition to his membership serves in the Golf Committee and Disciplinary sub-committee of the first Respondent.
5.The Claimant approached the Tribunal on or about 7th August, 2023 by filing an Appeal against the Respondents following his suspension from the Club on disciplinary grounds. The first Respondent had suspended him for a period of eighteen months from the Club premises during which period his handicap was also suspended.
6.When the matter was mentioned before the Hon. the Chair of the Tribunal on 15th August 2023, the Tribunal directed that the pleadings be served upon the Respondents.
7.Subsequent to this, the matter came up before the Tribunal either through mentions or hearing dates on 29th August 2023, 12th September 2023, 4th October 2023, 18th October 2023, 25th October 2023, 31st October 2023, 22nd November 2023, 29th November 2023, 11th January 2024 and 31st January 2024.
8.Through this intricate journey of mention and hearing dates, the parties raised several issues that were either determined or deferred. Amongst those matters were:a.The deferment of the Preliminary Objection to the Jurisdiction of the Tribunal to hear this matter which Objection was directed to be subsumed within the hearing and determined in this Decision.b.The determination of the Preliminary Objection to the representation of the Respondents without the benefit of the Resolution filed with the Tribunal giving the firm of Rombo & Co. the authority to represent the Respondent. The Tribunal allowed the firm of Rombo & Co. to furnish the Tribunal with the said authority.c.The direction of the Tribunal that the matter proceed through a physical hearing due to the challenges that had been experienced with the use of the technology that is available of virtual hearings.
9.On 11th January 2024, the parties confirmed to the Tribunal that they had filed their written submissions upon the conclusion of the hearing of the Claim.
10.On 31st January 2024, the Tribunal deemed it necessary for the production of the registration document for the Club as it had been described in the Statement of Claim as a club duly registered under the Sports Act whereas no evidence had been led to prove the point.
11.On the evidence that was placed before the Tribunal, the Claimant in his testimony complained that the proximate cause of his troubles with the first Respondent was that on or about 22nd February 2023, the second Respondent who was the Golf Vice Captain had kept waiting anxious members assembled for a prize giving ceremony from 7.30 pm and proceeded at 8.00pm without giving reasons for his indolence.
12.The Supporting Affidavit of the Claimant stated that he did not confront the second Respondent but rather those who did were two unnamed senior members who engaged the second Respondent in what the Claimant called a feisty kerfuffle.
13.The Claimant filed a complaint against the second Respondent who also seemed to have repaid the favour by filing a complaint against the Claimant. Joining the complaint filing was the third Respondent who also filed a complaint against the Claimant.
14.The three complaints were referred to the Club and non Golf Disciplinary Committee of the first Respondent who heard the same on 13th April 2023 and proceeded to hand down the punishment paraphrased as follows:i.On the complaint against the Claimant by the 2nd Respondent, the Committee resolved that the Claimant be suspended for a period of 12 months from the clubs premises during which period his handicap was also suspended.ii.On the complaint made by the Claimant against the 2nd Respondent, the committee resolved that there was no merit for any disciplinary action to be taken against the 2nd Respondent.iii.On the complaint against the Claimant by the 3rd Respondent, the Committee resolved that the Claimant be suspended for a period of 6 months from the club premises, during which period his handicap was also suspended. The suspension was to run consecutively with the disciplinary action that had been taken arising out of the 2nd Respondent’s claim as indicated at 13(i) above.
15.Dissatisfied with the decision and desirous of appealing the same, the Claimant stated that he sought audience with the Chairman of the first Respondent who varied the punishment meted out by shelving the suspension of the handicap and also seemingly intervening for the Appeal to be heard.
16.The Appeal was heard on or about 4th July 2023 and the decision of the first instance Disciplinary Committee upheld necessitating the Appeal to this Tribunal.
17.When the Respondents filed this Appeal at the Tribunal, the Respondents opposed the Claimants claim and in particular through their joint Defence dated 5th September 2023. In the Defence they stated that the dismissal of the Claimants complaint and the finding of guilt on the complaints against him was valid and made after all facts were considered by the Club and non Golf Disciplinary Committee.
18.At paragraph 9 of the Defence, the Respondents denied that the punishment meted out was excessive and in reply stated that the punishment meted out was in accordance with the constitution of the first Respondent.
19.The first Respondent called the Chair of the Club and non Golf Disciplinary Committee who also gave evidence that the Claimant had behaved in a very belligerent manner towards the officials of the first Respondent and written what was deemed to be very rude communication to the said officials. In a sampling of the letters sent to the said Chair of the Club and non Golf Disciplinary Committee and dated 7th July 2023, the Claimant had stated as follows:
20.While the Claimant hinted during the hearing before the Tribunal that this was his style of writing that was witty and sarcastic, the members of the Club and non Golf Disciplinary Committee of the first Respondent had found these writings and the other correspondence including his blog articles and social media to be rude and unbecoming behavior for which he had been sanctioned before.
21.The parties having not clearly agreed on and identified the issues for determination, the Tribunal has taken the liberty to frame three main issues for determination after discerning the pleadings, the evidence and the submissions filed before it. The issues are listed as follows:a.Whether the Tribunal has Jurisdiction to hear this matter?b.Whether the second and third Respondents defended the Claim?c.Whether due process was followed by the Disciplinary Processes undertaken by the first Respondent?
Whether the Tribunal has jurisdiction to hear this matter
22.The issue of jurisdiction is central in the determination of any dispute. This is because without jurisdiction the decision of a court is rendered superfluous. Through a Preliminary Objection, the Respondents have challenged the jurisdiction of this Tribunal to hear this matter.
23.Specifically, the Respondents quote Section 58(b) of the Sports Act that the first Respondent who is not a national sports organization had not agreed to have the matter referred to the Tribunal.In addition, Article 12 of the first Respondent’s Constitution has an ouster clause that the decisions of the Disciplinary Committees and the Board of the first Respondent are final and not subject to any further appeal or review.
24.The Sports Act circumscribes the jurisdiction of the Tribunal as follows:58.Jurisdiction of the TribunalThe Tribunal shall determine—(a)appeals against decisions made by national sports organizations or umbrella national sports organizations, whose rules specifically allow for appeals to be made to the Tribunal in relation to that issue including —(i)appeals against disciplinary decisions;(ii)appeals against not being selected for a Kenyan team or squad;(b)other sports-related disputes that all parties to the dispute agree to refer to the Tribunal and that the Tribunal agrees to hear; …
25.According to the dictum in Owners of Motor Vessel Lilian “S” v Caltex Oil [1989] KLR , jurisdiction provides a judicial body such as this Tribunal with the basis upon which its authority can be couched and enforced. Therefore, it is important that the Tribunal dispenses with jurisdiction as a matter of priority.
26.To begin with, it is instrumental to read and understand the governing law as a whole in order to ensure its proper enforcement. The object of the Sports Act 2023 was to ensure efficient and diligent administration of sport through specialized mechanisms that included a dispute resolution body id est the Sports Dispute Tribunal.
27.Whereas the Claimant indicated under paragraph 3 of the Statement of Claim that the first Respondent was a sports club duly registered under the provisions of the Sports Act, the first Respondent in the Defence dated 5th September 2023 had admitted the description of the parties set out in paragraphs 1 to 9 of the Statement of Claim which included paragraph 3 but when a Notice to Produce the Certificate of Registration under the Sports Act was issued to the first Respondent, they supplied only the Certificate of Registration under the Societies Act.In addition, no evidence was led on where the Constitution of the first Respondent as revised in 2017 has been duly lodged as the copy provided did not have a stamp to confirm if it is an extract from the records at the Registrar of Societies or from the Registrar of Sports.
28.Be that as it may, among the most notable statutory changes in the enactment of the Sports Act was the mandatory transition of sports entities registered as societies into sporting organisations as provided for under Sections 49 and 50 of the Sports Act. The wordings of these sections were clear that failure to transition as such had the effect of deeming a sport entity as unrecognized.Section 49(1) of the Sports Act states that:
29.The Tribunal has previously held that a party should not be allowed not to comply with the law and then use the lack of compliance as a shield to defend itself against the claims that may be filed which if the party had complied with the law would have offered an opportunity for that claim to be heard. The maxim “equity regards as done what should have been done” is germane as it is interpreted against the person who ought to have done.
30.The Registration of the Sports Clubs such as the first Respondent herein was mentioned under Section 46(2)(a) of the Sports Act which provided as follows:46.Registration of Sports Organisations(1)A body shall not operate as a sports organisation unless it is registered under this Act(2)The Registrar shall register sports organisations as either –(a)a sports clubThe words ‘sports club’ appear prominently in Article 1 of the Constitution of the first Respondent and in all correspondence.
31.Consequent to this quoted subsection, Section 46(5) of the Sports Act makes it obligatory for sports organizations to submit a constitution to the Registrar of Sports prior to registration which shall contain as a basic minimum, the provisions set out in the Second Schedule to the Sports Act. The Second Schedule then goes ahead to list under (f) that:
32.Therefore, the prevailing assumption is that a Sports Organisation’s constitution can only be lawfully constituted if it subscribes to the jurisdiction of the Tribunal. In the event that it does not, it shall be in violation of statutory regulations which shall prevail over its omissions.
33.Such sports organization can then not turn and use the same omission as a shield when it is a violation. The Sports Act is interpreted as allowing internal dispute resolution mechanisms which then should flow into the Sports Disputes Tribunal at the national level and to the Court of Arbitration of Sports or such other international affiliate of the sport at the international level.
34.In Daglas Mokaya Oyioka v Bandari Football Club and Football Kenya Federation SDT E025 of 2023, the Tribunal in a Ruling of a Preliminary Objection to Jurisdiction stated as follows:50.It is uncommon for parties on their own volition to ‘grant’ jurisdiction to a judicial body. This may lead to an endless and protracted battle for forum shopping with parties choosing to stay away from a judicial body just to make it harder for the party that may get wronged to access the judicial body.51.Whereas Section 58(b) of the Sports Act may seem to speak towards having parties to have an agreement before the matter is taken up for determination by the Tribunal, the Tribunal finds that interpreting this provision as necessitating agreement at the time a dispute arises would pose significant challenges regarding access to the very court of law vested with jurisdiction to hear sports-related disputes, as outlined in Section 58(b) of the Sports Act.
35.It is not expected therefore that the Claimant in the instant case would have discussions first with the Respondents to agree on bringing the Claim before the Tribunal.
36.Having noted the above, it is important to consider the legal status of the first Respondent and its obligations towards the Sports Act. It is not in doubt that Veterinary Laboratory Sports Club who is the first Respondent is a private members club. It is also uncontroverted that the first Respondent is engaged in the sporting activities as its core business according to the Constitution and in particular, the sport of golf. This definitely puts the club under the auspices of the Kenya Golf Union for me and Kenya Ladies Golf Union for ladies which then has an umbrella body of the Kenya Golf Federation as the said national sports federation.
37.Golf regulations under R & A allow for Local Rules which are set by the Golf Committees of the respective clubs, but this affect playing rules and not disciplinary, mostly when a relief may be taken while playing. However, there are certain control matters that require the intervention of the respective national federation. Indeed, during the evidence that was adduced, it was clarified that the golf handicapping system is handled by World Handicapping System that replaced previous six existing handicap systems including CONGU which Kenya has been using.
38.To declare that the first Respondent, or any other sport/golf club can act independently from the dictates of the overall golf union rules with respect to golf is indeed inaccurate.
39.In the event that the clubs are at liberty to have their own internal rules that they intend to depart from the national federation rules, it is important that the Tribunal adverts its mind on what constitutes a sport.According to Section 2 of the Sports Act 2013, defines sport as follows
40.From the definition, it is clear that a sport does not have to be competitive nor does it have to be reserved only for professional participation. It can be casual and aimed at forming social relationships as golf clubs are well known as avenues for the creation of social relationships. That through these clubs members can become a community and engage in social networking without necessarily being active participants in the sport. This, still does not negate the fact that a sports club like the first Respondent is a clubs formed around the sport of golf and members can casually play without necessarily competing in a sanctioned tournament.
41.The upshot of the foregoing is that the prevailing notion of the Tribunal in interpreting the statutory definition of sport is that proof of membership is enough to demonstrate participation in the affairs of the club as per individual preference.
42.In addition, the Sports Registrar Regulations 2016 defines a sports club as follows under Section 2:
43.Undoubtedly, golf clubs or sports clubs are private unions and have membership criteria. This implies that only those who have been vetted can participate in this sport as club members. The Tribunal takes judicial notice that there is no golf club that is “free for all” since most courses are expensive to maintain and managed privately by clubs.
44.Hence, it is evident that recruitment into participating in the golf of sports is largely private. In order to cure a situation where private sports club may be tempted to operate outside the precincts of law, they ought to properly be registered under the relevant legislation and also have the connection with the governing bodies for the sports they are involved in to oversee their sporting activities especially at the professional level.
45.Consequently, the Second Schedule of the Sports Act 2013 provides for mandatory subscription to the authority of the Sports Disputes Tribunal by any sporting organization that is registered under the Sports Act.
46.To read the intention of parliament in including private sports club under the Sports Registrar Rules and Regulations 2016, the Tribunal is of the understanding that the growth of sports is both public and privately advanced. Private clubs therefore play a major role which cannot be overstated in developing sports and they cannot be allowed to operate on a blank cheque.
47.Additionally, in attempting to oust the jurisdiction of the Tribunal, the Claimants raised the issue of consent and cited the case of Gor Mahia FC v Sports Disputes Tribunal & another Ayisi (Interested Party and Denis Kadito v Sofapaka FC.
48.The Sports Dispute Tribunal is a subordinate court and sui generis established by Section 55 (1) of the Sports Act, 2013 in furtherance of Article 169 of the Constitution of Kenya 2010 which under Article 169 (1)(d) defines subordinate courts to include:
49.Specialized Tribunals have a prime mandate to resolve disputes touching on their specific mandate as in this case. In Samuel Kamau Macharia v Kenya Commercial Bank and 2 Others, the court stated that:
50.To buttress the foregoing, jurisdiction is not consent based, it can only flow from the law. Section 58 of the Sports Act understands the specialized nature of the Tribunal and envisages peculiar circumstances where both parties consent to adjudication of a matter in the Tribunal where there is a clear parallel mechanism to address the same.
51.To reiterate the aforementioned point on all sports organizations to subscribe themselves to the jurisdiction of the Tribunal, individual club members of these sporting organizations by extension automatically subscribe to the jurisdiction on a sports related matter.
52.From a cursory look at the first Respondent’s constitution, it is lucid clear that its main objective is to promote sporting activities. The implication of this is overtly captured by its own name as a “Sports Club”.
53.Indeed, the Tribunal will not overlook the fact that not every dispute at the sports club shall fall under its jurisdiction. However, borrowing from Kompetenz-Kompetenz - and the resultant doctrine – which is the watermark approach judicial institutions or bodies exercising such powers approach the question of jurisdiction, the Tribunal wishes to state it can discern that which squarely falls under its jurisdiction.
54.The Tribunal notes particularly that the first Respondent has categorized its disciplinary matters as either golf or non-golf. Whilst the grammatical divide is clear on paper, in practice there may be interpretations such as whether the other various sports the club offers including swimming and tennis fall under non-golf disputes in case of an infraction since they are evidently other form of sports.
55.The Constitution of the first Respondent differentiates the two activities, to wit, the Club and non Golf activities and the Golf activities. In this differentiation, the Constitution at Article 5A (f) and (g) establishes two separate Disciplinary Committees as follows:(f)Club/non-Golf related Disciplinary Committee comprising the Honorary secretary as Chair, the Captain and any 3 members as may be co-opted by the Board.(g)Golf Disciplinary Committee and Disputes Committee comprising the Captain as Chair, the Lady Captain, the Club Pro and one representative each from the Golf Section Committee and the Ladies Golf Section Committee.The Constitution then goes ahead to establish the Golf Section Committee at Article 6 as follows:
56.Undoubtedly, there is emphasis on the Golf as a sport and the other activities that make the playing of Golf as a sporting activity possible.
57.Without further splitting hairs on the first Respondent’s constitution on handling non-golf and golf disputes, the Claim herein is of alleged misconduct deemed as non-golf leading to the suspension of the Claimant.
58.There is a lot of intermingling of the sporting section and the non sporting section which in turn causes some blurred lines between what may be deemed as Club and non Golf activities and the Golf activities and in particular disputes arising from the same.
59.For instance, the Club and non Golf Disputes have no right of appeal according to Article 12 (a)(i) and that only the Golf related Disputes have a right of Appeal under Article 12(b)(ii) of the Constitution of the first Respondent. If this is so, and the dispute was a Club and non Golf dispute, why then was the Claimant afforded the Appeal anticipated under Article 12 (b)(ii) and further why was the punishment meted out to the Claimant inclusive of the suspension of his golf handicap which would fall under the aegis of Golf related dispute.
60.In any event, the Tribunal has extended jurisdiction on matters that may not be necessarily sporting such as administrative and governance issues for bodies that are registered under the Sports Act which is the reason the Tribunal has further powers beyond Section 58 of the Act. These powers include the determination of disputes such as election disputes in a sports organization that is clearly the mandate of the Tribunal under Regulation 20(7) of the Sports Registrar Regulations, 2016.
61.Upon this interrogation of the evidence available, it is painstakingly cumbersome to divorce the allegations levelled against the Claimant from his membership in the club as a golfer. Hence, while the first Respondent considers the dispute as non-golf, the Tribunal retains overarching authority to review the conduct of management/administrative bodies towards its members in sports/golf clubs if they have an impact on sporting activities of these members.
62.In light of the foregoing, the Tribunal considers that it has the jurisdiction to hear this dispute. The intermingling of sports and what is deemed as non sports disputes has not been proved to be so clear cut as to stave away the jurisdiction of the Tribunal.
Whether the second and third Respondents defended the Claim?
63.The Claimant stated that the claim was not properly defended and in particular, challenged the appointment of Dick Omondi who was the defense witness and the only witness who appeared for the Respondents and gave evidence in a representative capacity on behalf of the three Respondents.
64.Under the Civil Procedure Rules, Order 1 and Rule 13, it is provided as followsThe Tribunal is alive to the fact that certain rules of procedure are strictu sensu not applicable to the Tribunal which is why the Sports Disputes Tribunal Rules, 2022 were also enacted to set certain parameters for the procedure before the Tribunal.
65.It is nonetheless acknowledged that parties have to appear in person or provide express written authority as prescribed in law for another person to make an appearance on their behalf.
66.This is a different issue that was raised by the Claimant from what the Tribunal ruled on earlier as mentioned under paragraph 8(b) where the Tribunal had earlier ruled that to enable the matter be handled expeditiously without delay, it was ordered that purely for abundance of caution, the Respondent should file the proof of the Appointment as Advocates within seven (7) days from the date the order was made. The Tribunal hastened to add that the order was strictly limited to this matter on the circumstances that were before the Tribunal and did not set precedent for the Tribunal that all appearances have to be proved by a Resolution. The said Resolution was furnished to the Tribunal who were satisfied with the same.
67.However, the Tribunal has not been furnished with such specific documentation that granted the authority to the witness to appear on behalf of the second and third Respondents.
68.Technically therefore, the testimony issued on behalf of the second and third Respondents were not backed by specific authority to testify. However, the Tribunal is also alive to the fact that it is not in the best interests of a Tribunal such as the Sports Disputes Tribunal to be pedantic on matters procedure that may harm the ends of justice. To that extent, even if the Tribunal were to consider any such representation as improper, the matter that would be then dealt with is whether it was prejudicial in any event.
69.Such an act of omission or commission is not fatal to the suit as seen in Agricultural Finance Corporation & Another v Drive-In Estate Development Ltd [2006] eKLR. where the court stated that the lack of a proper, valid or any Verifying Affidavit does not render a Plaint void, it only renders it voidable.
70.Moreover, in Abdulla Abshir & 38 Others v Yasmin Farah Mohamed [2015] eKLR, the learned judge averred as follows:
71.In light of the above, the Tribunal takes the position that the testimony given on behalf of the second and third Respondents does not void the defence of the claim.
72.In any event, the second and third Respondents had filed their Witness Statements which would stand to the extent that they were general denials of the averments of the Claimant.
73.Nevertheless, the Tribunal seeks to advert itself more on the issue of the defence of this suit and especially with regards to the first Respondent which is the Vetlab Sports Club.
74.While the first Respondent indeed exists as a corpus, it lacks the animus element, as such it can only be acted for or on behalf of by the constituting members. Thus, it would be irrational to expect the first Respondent to ever appear unless there is a human representative to fulfill that aspect.
75.In order to preempt unilateral action by members of organisations or body corporates from making binding decisions that can be detrimental to the organisation, there are both statutory and internal regulations that streamline the exercise of authority, whether apparent or ostensible in their articles, minutes and memoranda.
76.From the available evidence, it has been demonstrated vide a letter where the first Respondent designated Mr. Dick Omondi to act as their ‘linkman’ to the Tribunal. As per the Claimant’s, there is no express authority granting powers to Mr. Omondi to act as a defense witness for any party.
77.The Tribunal seeks to interrogate the extent of authority granted in the letter appointing the witness as a link vis a vis the authority to defend the suit on behalf of the first Respondent in particular.
78.Without inferring any deeper context to the nature of interaction the Respondent and the Tribunal had as involving the defence of a claim, it is quite clear that upon granting authority to their advocates on record, Rombo & Co, the first Respondent delegated matters attendant to this claim to Mr. Omondi to exercise both apparent and ostensible authority as deemed necessary.
79.Notably, the law abhors ambiguity, yet again, the law aims to extend justice and override technicalities. To declare that the suit is completely undefended over lack of explicit authority beyond that which was already granted by the first Respondent to the defense witness in the aforementioned letter is to cast away justice over a trifling omission.
80.In Gitau v Kenya Methodist University (Kemu (Petition 5 of 2020), the court espoused as follows while quoting James Mangeli Musoo v Ezeetec Limited on technicality in paragraph 13:
81.To buttress the foregoing, the court further stated as follows on procedure while quoting House of Lords in Henry JB Kendall & Others v Peter Hamilton;
82.The upshot of the foregoing is that although the first Respondent failed to grant express authority to Mr. Omondi to act as its defence witness in the letter appointing him as a link to the Tribunal, it is but an omission since the subject of that authority was to expedite on the hearing and settling of the claim against it.
83.The Tribunal has also considered the reliefs that were sought by the Claimant and it does seem to be stretching the reliefs to the widest elasticity by purporting to enforce them against the second and third Respondents. For instance the procedural matters at Issue Number three which is the last Issue are not of the making of the second and third Respondents at all.
84.The second and third Respondents were not the ones who made the decisions that are complained of by the Claimant. Indeed, the prayer to quash the suspension imposed by the disciplinary bodies of the first Respondent can not be made against the second and third Respondents. The Tribunal finds that joining the second and third Respondents to this claim was a red herring if there ever was one.
85.Since the Tribunal considers the second and third Respondent as having no material consequence on the implementation of the outcome of this Claim it is quite irrelevant if the Tribunal shall consider the Claim undefended by them. Indeed, their inclusion to the suit is a misjoinder based on the fact that they are not a necessary party simply by virtue of being complainants. Thus, the whole suit is deemed to have been properly defended as by the first Respondent.
Whether due process was followed by the Disciplinary Processes
86.The Claimant herein alleged that the Respondents’ manner in the determination of his case was a gross violation of his fair administrative rights enshrined in the Constitution under Article 47 and Section 4 of the Fair Administrative Action Act.
87.To illustrate, section 4(3) outlines the following(3)Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision–(a)prior and adequate notice of the nature and reasons for the proposed administrative action;(b)an opportunity to be heard and to make representations in that regard;(c)notice of a right to a review or internal appeal against an administrative decision, where applicable; (d) a statement of reasons pursuant to section 6;(e)notice of the right to legal representation, where applicable;(f)notice of the right to cross-examine or where applicable; or(g)information, materials and evidence to be relied
88.The Tribunal finds it essential to make a determination on the extent of satisfaction each of the above-mentioned limbs, amongst other considerations, and elects to proceed sequentially forthwith.
89.The first query is on the sufficiency of notice as stipulated by the law necessary for a person to effectively defend themselves against any allegations levelled against them. Initially the Claimant received on 5th April 2023 communication for a hearing on 13th April 2023. He confirmed attendance and for that reason, the Tribunal considers the notice that was granted as to have been sufficient.
90.Next is that an opportunity to be heard and to make representations in that regard is imperative to the integrity of the process. It is important to note that the opportunity to be heard in fact does not have to be through vica voce evidence and can take the form of written representations. This was the holding of the Court in Kenya Revenue Authority vs. Menginya Salim Murgani [2010] eKLR where it was stated that a party will be deemed to have been heard even if they did not speak. The Court adopted the dictum in R vs. Immigration Appeal Tribunal ex-parte Jones [1988] I WLR 477, 481 where it was held:-
91.The Claimant was clearly granted an opportunity to be heard and idneed prepared written submissions for the hearing. Nevertheless, the qualitative nature of this opportunity was brought forth as concerning. This is in light of the allegation that his submissions were completely ignored by the members of the disciplinary committee.
92.Unequivocally, if there was no consideration of the Claimant’s submissions, then there was a fundamental omission by the Club and Non Golf Disciplinary committee since it goes to the root of the matter and subsequently delivering a just outcome.
93.In Republic v National Land Commission & 2 others Ex Parte Archdiocese of Nairobi Kenya Registered Trustees, the court declared as follows:64. A recent articulation of the elements of procedural fairness in the administrative law context was provided by the Supreme Court in Baker vs. Canada (Minister of Citizenship & Immigration) 2 S.C.R. 817 6 where it was held:“The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decision affecting their rights, interests, or privileges made using a fair, impartial and open process, appropriate to the statutory, institutional and social context of the decisions.”
94.The Tribunal is not remotely convinced that the Club and Non Golf Disciplinary committee fulfilled the aforementioned requirement if they did not analyse and review in detail the Claimant’s submissions.
95.In addition, having been aggrieved by this decision, the Claimant opted to file an appeal. It is a requirement that a notice of a right to a review or internal appeal against an administrative decision should be given to the person in trial. The Claimant alleges there was no such notice, nevertheless, he was still able to file an appeal on his own motion to breathe life to his case.
96.Notably, it is at the appeal that the Chairperson declared the matter to be ‘non-golf’ and reinstated the handicap of the Claimant which had been suspended. The Tribunal also notes that the first Respondent’s Constitution does not grant any room for appeal for ‘non-golf’ disputes which is a clear affront to justice.
97.Critically, for a sound review of the appeal, there was need to have all the hearing proceedings from the committee that heard the matter at first instance. Regrettably, despite several attempts to obtain the proceedings, the Claimant was denied the same without any reasonable justification. It would have been instrumental that the Respondents avail these proceedings to demonstrate to the Tribunal the actual reasoning of the determination of the Claimant’s case. However, they have not. On a preponderance of facts and available evidence, the inference is that such detailed reasons for the decisions are non-existent.
98.The risk this poses is that while the Respondents have demonstrated instances where the Claimant used unbecoming language against some members, arbitrary decisions must not be condoned. Furthermore, the issuance of a reasoned hearing proceeding which do not have to exactly correspond with judicial standards was sufficient to show that a decision was made following an exertion of the mind. In Republic v National Land Commission & 2 others Ex Parte Archdiocese of Nairobi Kenya Registered Trustees the learned judge pronounced himself as follows in paragraph 60:60. This was a restatement of Lord Wright’s decision in General Medical Council vs. Spackman [1943] 2 All ER 337 cited with approval in R vs. Vice Chancellor JKUAT Misc. Appl. No. 30 of 2007 that:“If the principles of natural justice are violated in respect of any decision, it is, indeed immaterial whether the same decision would have been arrived at in the absence of the departure from essential principles of justice. The decision must be declared as no decision.”
99.To buttress the foregoing, the court further espoused as follows in paragraph 6161. In Ridge vs. Baldwin [1963] 2 All ER 66 at 81, Lord Reid expressed himself as follows:“Time and again in the cases I have cited it has been stated that a decision given without the principles of natural justice is void.”
100.So, while there is a statement with the reasons outlined pursuant to section 6 of the Fair Administrative Act found in the determination of the Claimant’s case by the disciplinary committee, the Tribunal cannot affirm the fairness of the process. Hence, the truthfulness and the correctness of the decision is immaterial to the consequences of violating principles of natural justice by a body exercising adjudication powers.
101.The period from the date of the initial decision by the first instance Disciplinary Committee on 13th April 2023 and making an assumption that an appeal was to be filed would have meant that the appeal was to be filed within fourteen days from the date of the decision falling on 27th April 2023. The first Respondent communicated to the Claimant the decision through a letter dated 17th April 2023 and by 13th June 2023 when the Chairman was writing to the Vice Chairman of the Club, no minutes and proceedings had been provided as expected. The letter from the Chairman indicated as follows:
102.The Tribunal notes that the time taken to favour the Claimant with the Minutes and Proceedings was inordinately long and without any justified cause.
103.There is the factor of having legal representation to which the Claimant asserts that he was not only not informed of the same, but also, failed to involve a lawyer or any other representative to accompany him in the hearing and help advance his case.
104.Another essential requirement needed to be satisfied to affirm the fairness of a hearing process is that the person under trial has a right to cross examine witnesses. The Claimant has not mentioned any adverse allegation against the Respondents with regards to the exercise of this requirement. Hence, the Tribunal shall consider it as having been satisfied.
105.Ultimately on tenets of procedural fairness, information, materials and evidence to be relied upon needs to be accessible to the accused person for them to know the claim they are defending themselves on. The Claimant asserts that he was not accorded the required material to properly defend himself in the Appeal underpinning the mystery that shrouds the determination of his case.
106.There were dual roles that were noted in the matter for some of the officials of the first Respondent could also at first glance be deemed to show some likelihood of bias. The Hon. Secretary chaired the Club and Non-Golf Activities Disciplinary Committee that delivered the decision in the matter at the first instance and was also the one who communicated to the Claimant the decision of the Appeal.
107.The Tribunal does not overlook the primary involvement of the Hon. Secretary - who was also the sole defence witness that gave the sworn evidence in this matter - in assenting to the charges levelled against the Claimant. The Claimant has alluded to this as being suspicious. The record of the evidence presented however showed the recusal of the said Hon. Secretary. Consequently, the Tribunal would like to interpret such action as an outcome of his role and not a prelude to any decision.
108.Even so, it is still worrying that the disciplinary committee did not take any cautious approach by allowing the Hon. Secretary to further defend through the viva voce evidence in Court the impugned decision of the Appeals Committee to which he said he recused himself. The Tribunal shall not make a harsh inference but would like to advert the mind of the Respondents not only do justice but meticulously conduct themselves in a manner that sees it as done.
109.At this point, the Tribunal wishes to state that the principles of natural justice concern procedural fairness and ensure a fair decision is reached by an objective decision maker. Where the same procedure is not followed then there is no justice. Fair hearing procedure has to be jealously guarded, for it is not always that departing from procedure is mere oversight. In New Look Estate Ltd & Another V Khira Omar Maalim & Another the court averred as follows while quoting Inland Beach Enterprises Ltd v Sammy Chege & 15 Others [2012] eKLR in Paragraph 7 where the learned judge held, inter alia:
110.Based on the totality of evidence present before the Tribunal and a wholesome consideration of the procedural fairness of the manner in which the 1st Respondent conducted itself, the overwhelming assertion coming from the process is that the Claimant was convicted by the disciplinary committee with less regard to procedure.
111.In reiteration of the aforestated point that the correctness of the decision arrived at by an adjudicating body is immaterial if the procedure is flawed, the Tribunal shall divest itself from making any determination on the content but rather the quality of the decision. Undeniably, there was gross violation of procedure and therefore the decision by the disciplinary committee and subsequently the appeals committee are void.
112.Generally, there are many shortcomings in the Constitution of the first Respondent that as pointed out need to be reviewed to enable the same to be compliant with the various sections of the law.
Conclusion
113.Having analyzed the issues as above, the Tribunal posits as follows on the issues raised:-a.With regards to jurisdiction, the Tribunal points out that sports clubs, including the first Respondent being a sports club, fall squarely under the Sports Act and attendant Rules and the Tribunal therefore has authority to oversee and make a determination on the conduct of their affairs towards their members.b.The second and third Respondent as complainants at the dispute at the first instance not only bore no responsibility in implementing the outcome of this claim but also are misjoined parties. Nonetheless, the first Respondent was competent to defend the claim through the Defence witness that was availed.c.There was no due process that was followed by the first Respondent which annuls the decision issued by the first Respondent against the Claimant. The second the third Respondents were nonetheless not responsible for the process adopted (or lack of proper process) by the first Respondent in dealing with their complaints.
114.Effectively, the Tribunal finds that the Claimant succeeds in this Appeal and orders that the decision by the Appeals Board of the first Respondent is annulled in its entirety and the suspension of the Claimant by the first Respondent is quashed.
115.On the issue of costs, the Tribunal has considered that whereas ordinarily the successful party would be awarded costs in the matter where they have been successful, it is necessary to nonetheless consider the circumstances of this matter.
116.Whereas the first Respondent acted out of the confines of natural justice as elaborated on the third issue above, the conduct of the Claimant especially in the manner in which he communicated with the officials of the first Respondent was rather unnecessarily incendiary and did not help the situation that he was facing including the suspension of his activities and the handicap. One of this correspondence has been quoted in this Decision and there were others that the Tribunal noted which were equally bordering on inflammatory.
117.For this reason, each party shall bear their costs in this matter.
DATED AND DELIVERED AT NAIROBI THIS 7TH DAY OF FEBRUARY, 2024NJERI ONYANGO, FCIARB - PANEL CHAIRPERSONPETER OCHIENG - MEMBERBENARD MURUNGA WAFULA - MEMBER