[2022] KESDT 837 (KLR)

Awino v Principal Secretary, Ministry of Sports and Culture & 2 others (Appeal E028 of 2022) [2022] KESDT 837 (KLR) (Civ) (6 December 2022) (Decision)

Neutral citation: [2022] KESDT 837 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Civil

Appeal E028 of 2022

E.Sifuna-Shiveka, Chair, E. G. Kiplagat & Peter Ochieng, Members

December 6, 2022

Between

Janet Awuor Awino

Petitioner

and

Principal Secretary, Ministry of Sports and Culture

1st Respondent

Rugby Football Union

2nd Respondent

Olympic Kenya

3rd Respondent

Decision

1. Elynah Sifuna – panel chairperson2. Peter Ochieng - member3. Gichuru Kiplagat – member Appearances1. The petitioner represented herself.2. No appearance by the respondent.

The Parties 1. The petitioner describes herself as a professional rugby player affiliated to the 2nd respondent.

2. The 1st respondent an office established under article 155 of the Constitution of Kenya.

3. The 2nd respondent is a sport federation in charge of the sport of rugby in Kenya.

4. The 3rd respondent is in charge of olympics in the country and is affiliated to the International Olympic Committee (IOC).

The Case 5. The petitioner filed a plaint dated July 19, 2022, a supporting affidavit dated the same day and written submissions dated the same day too.

6. The petitioner stated that she was unfairly and unceremoniously dismissed from the Kenya Women 7’s rugby squad in December 2019 despite being part of the Kenyan team that was to take part in Tokyo 2020.

7. The petitioner further noted that she has been in the Kenya rugby squad for almost twenty years representing the country in more than a dozen tournament spanning almost 15 countries. She noted that her peak performance was the Rio 2016 olympics where she captained the squad. However, she noted that things took a turn when a new coach one, Felix Oloo and Carmeline Oywayo without following legal and administrative procedure locked her out of the squad which was just months old to Tokyo 2020.

8. The petitioner noted that she has never failed the squad or had any disciplinary issues with rugby management. She also stated that she has tried informal settlement of this issue without involvement of any higher authority but after lengthy back and forth with a few personnel she concluded that there was no good will from the rugby management over the dispute .

9. The petitioner also stated that she had injuries while in Australia with her team mates and that she has been using her personal income to help offset the same to the point of exhausting her savings. She noted that she has been unable to rectify the broken metal fittings in her femur and that she is constant pain.

10. The petitioner requested the tribunal to order that all her dues accrued to her in appreciation of service delivered during her many years as a Kenyan international and the cost of her treatment be borne by the respondents.

11. The petitioner prays for judgment in her favour specifically in the following terms :a.Fiduciary compensation of accrued monies owed by the 3rd respondent in participation fees, cash reward fees, emoluments and government grants totalling Kshs 4,300,000/=b.Fiduciary compensation of Kshs 3,000,000/= being unpaid benefits, loss of expectation from unlawful unfair dismissal from Tokyo olympics and loss of livelihood during the period spanning from 2019 to date.c.Compensation totalling Kshs 926,000/= being sums I have used during her treatment and constant pain killing remedies, supplements and medications.d.Any other remedy that this tribunal deems fit.e.Costs of this suit.

The Response 12. The respondents did not file any responses to these proceedings.

Hearing 13. The matter was heard on October 11, 2022 and the petitioner relied entirely on her pleadings. The respondent filed written submissions dated July 19, 2022.

Discussion 14. Having taken into account the party’s pleadings and written submissions, the tribunal states as follows:

15. At the outset the tribunal is faced with the following questions for determinationa.Whether the tribunal has jurisdiction to hear this case.b.Whether the claimant is entitled to the remedies as prayed.a.Whether the tribunal has jurisdiction to hear this case.

16. The jurisdiction of this tribunal stems from section 58 of the Sports Act which provides as follows:“The 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; and(c)appeals from decisions of the registrar under this Act.”

17. Section 59 of the Sports Act states further that:“The tribunal may, in determining disputes apply alternative dispute resolution methods for sports disputes and provide expertise and assistance regarding alternative dispute resolution to the parties to a dispute.”

18. The petitioner stated that she was unfairly and unceremoniously dismissed from the Kenya Women 7’s rugby squad in December 2019 despite being part of the Kenyan team that was to take part in Tokyo 2020.

19. The petitioner also stated that she had injuries while in Australia with her team mates and that she has been using her personal income to help offset the same to the point of exhausting her savings. She noted that she has been unable to rectify the broken metal fittings in her femur and that she is constant pain. However, she did not disclose the name and date of the championship or tournament that she attended that resulted in her injuries.

20. This being a claim arising from a football player who had been contracted by a football club we find that the dispute falls within the definition of sections 58 (a),(i) and (ii) of the Sports Act as well as 58(b) of Act as “other sports related disputes”.

21. Section 58 (a),(i) and (ii) of the Act touches on appeals against disciplinary decisions and appeals against not being selected for a Kenyan team or squad. The use of the word “appeal” in this section presupposes that the petitioner will in the first instance seek to resolve the dispute with the respondents before moving the tribunal. A good example is the 2nd respondent’s constitution that provides under article 10. 23. 3 that anyone aggrieved with a disciplinary finding may appeal to an appeal committee. We have looked at the pleadings and all documents filed by the petitioner but we are unable to find evidence that the petitioner actually filed a claim with the appeal committee against the 2nd respondent or any claim or claims against the other respondents for that matter.

22. The petitioner says that she has tried informal settlement of this issue but after lengthy back and forth with a few personnel she concluded that there was no good will from the rugby management over the dispute. However, she fails to provide sufficient evidence such as written letters or emails or any other medium of communication showing her displeasure that backs her assertions.

23. The petitioner also failed to attach a contract of employment showing how or whether there is a legal relationship between her and the three respondents. Besides, it is also not clear to us who she holds liable. At some point it is the 1st respondent in some instance it is the 2nd respondent and yet on another account it is the 3rd respondent. The petitioner needs to identify the liable party before filing a claim of this nature. we therefore find that petitioner has not complied with section 58 (a) of the Act and we are divested of jurisdiction.

24. We submit that the claim on the petitioner’s injuries while in Australia falls under section 58 (b) of the Act with respect to, ”other sports related disputes “even though it is unclear when this happened as the information supplied by the petitioner remains scanty. However, section 58 (b) cannot be fully invoked if all parties in the dispute did not consent to the tribunal’s jurisdiction and if the tribunal did not agree to hear the claim.

25. In our recent case of SDTSC E009 of 2022 Dennis Okore v Talanta FC while restating our earlier case of Dennis Kadito v Sofapaka FC (SDT Appeal No 23 of 2016) the tribunal had this to say on section 58 (b) of the Sports Act:“As already stated in sports-related dispute such as this one the provision of section 58 (b) can only be satisfied where there is prior agreement to submit to the jurisdiction of this tribunal for example as a term of the contract or subsequent to the dispute the parties enter into a consent to submit themselves to the jurisdiction of the tribunal. In the absence of any of these circumstances, the tribunal cannot act without the protection of the law.”

26. The respondents in Kadito and Okore above opted not to participate in the proceedings but the tribunal made a finding on both occasion that it lacked jurisdiction to hear the matters as the parties did not consent to submit themselves to the jurisdiction of the tribunal as per section 58 (b). Secondly, the tribunal opined in the two cases that jurisdiction under section 58 (b) can also be invoked if it is included as a term of the contract of employment by the parties. This was also not the case here as the petitioner does not have a contract of employment.

27. The tribunal for the reasons stated finds that it has no jurisdiction to hear this claim in terms of sections 58 (a) and 58(b) of the Sports Act as the parties did not agree to appear before us.

28. The tribunal therefore finds it unnecessary and unable to answer questions (b) that it had framed for determination.

Conclusion 29. It is therefore in consideration of this, as well as the parties’ submissions that the tribunal makes the following orders:a.The plaint dated July 19, 2022 is struck out;b.Each party shall bear its own costs.

DATED AT NAIROBI THIS 6TH DAY OF DECEMBER, 2022Elynah Sifuna, Panel ChairpersonGichuru Kiplagat, MemberPeter Ochieng, Member