[2021] KESDT 454 (KLR)

REPUBLIC OF KENYA

THE JUDICIARY

OFFICE OF THE SPORTS DISPUTES TRIBUNAL

SDT APPEAL NO. 19 OF 2019

CHARLES CARDOVILIS................................1ST APPELLANT

GODFREY OKOTH.........................................2ND APPELLANT

VERSUS

KENYA RUGBY UNION....................................RESPONDENT

DECISION

Hearing: Matter proceeded via Written Submissions.

Panel: John M. Ohaga S.C. - Chairman

Gabriel Ouko - Member

E. Gichuru Kiplagat - Member

Appearances

W.M. Njagi and Associates for the Appellant;

Orare Jared Nchore (jarednchore@yahoo.com) for the Respondent

Abbreviations

KRU Kenya Rugby Union

KRRA Kenya Rugby Referees Association

WR World Rugby

DDO Designated Disciplinary Officer

Parties

1. The 1st Appellant is the Head Coach of Kenya Harlequins RFC.

2. The 2nd Appellant the team manager of Kenya Harlequins RFC.

3. The Respondent is the governing body in charge of the sport of Rugby Union in Kenya.

Historical Background

4. On 21st August 2019 the Respondent held disciplinary proceedings in relation to misconduct relating to criticism of referees made by the Appellant s on their Twitter and Facebook social media platforms, under Kenya Harlequins following a complaint by the Kenya rugby Referee Association.

5. In the said proceedings it is stated that the charge emanated from an official complaint lodged by KRRA through their secretary on comments posted on the official Twitter and Facebook handles of Kenya harlequins at 11:00 pm (EAT) on the 27th July of 2019.

6. At the end of the proceedings the Judicial Committee imposed on the 1st and 2nd Appellants a provisional suspension from all rugby related activities pending the hearing and determination of the misconduct hearing.

7. Being aggrieved by the said decision, the Appellants on the 30th of August 2019 approached the Sports Dispute Tribunal via a certificate of Urgency sworn by the supporting affidavit of Charles Cadrovilis on his behalf and that of the 2nd Appellant seeking the following orders:

i. THAT this application be certified as urgent and heard ex-parte and service of the same dispensed with in the first instance;

ii. THAT this Honourable Tribunal be and is hereby pleased to issue a temporary stay of the suspension imposed by the Judicial Panel of the Kenya rugby union against the applicants pending inter-partes hearing and determination of this application;

iii. THATthis honourable Tribunal be pleased to issue a stay of the suspension imposed by the Judicial panel of the Kenya rugby union against the applicants pending inter-parties hearing and determination of the complaint before the Judicial panel of Kenya Rugby union and/or hearing and determination before the Appeal Panel of the Kenya Rugby Union, if at all;

iv. THAT this Honourable Tribunal be pleased to issue any other orders that it deem fit; and

v. THAT costs of the application be provided.

8. On 3rd September 2019, the matter was mentioned before this Tribunal where it was directed that the matter had been mentioned prematurely as there was a decision of the Appeals board pending and thus the Tribunal was unable to grant interlocutory relief. Mention was set on 17th September 2019.

9. On 17th September 2019 the matter was stood over generally due to no appearance by both parties.

10. The matter was mentioned on the 1st December 2020, where the petitioner reported that they had been frustrated in getting KRU to handle the matter internally and asked to file a notice of appeal and serve the Respondent. The matter was scheduled for mention on 15th December 2020.

11. On 15th December 2020, advocate for the Appellant informed the Tribunal that the internal mechanism of KRU was sorting the matter and the matter was scheduled for mention on 2nd February 2021 for direction. The Petitioner was to file an affidavit on the same and inform the Respondent.

12. On 1st February 2021, the Appellant filed a supporting affidavit sworn by Charles Cadrovilis detailing how on 9th March 2020 the Appeal had been terminated by the Respondent and that in line with the said developments, that the Notice and Memorandum of Appeal be adopted for hearing and determination by the Honourable Tribunal in line with the directions of 3rd September 2019.

13. On 2nd February 2021, the matter was mentioned before the Tribunal and the following directions were issued:

i. The Appellants have seven days to file their Memorandum of Appeal, that is on or before 9th February 2021;

ii. The Respondent has fourteen days to file their response that is on or before 23rd February 2021.

iii. Upon receipt of the Respondent’s pleadings, the Appellants are given 14 days to file their written submissions, that is on or before 9th March 2021.

iv. The Respondent is given fourteen days to file their written submissions upon receipt of the Appellants written submissions, that is on or before 23rd March 2021.

v. The parties shall highlight their written submissions on 23rd march at 2:30pm

14. On 9th February 2021, the Appellant filled its Notice of Appeal and Memorandum of Appeal with the Tribunal.

15. The Matter was mentioned on 23rd March 2021 for highlighting of submissions but there was no appearance by the Appellant. The following directions were issued:

i. Respondent to file its submissions within 14 days.

ii. Appellants have 7days thereafter to file response if need be;

iii. Hearing set for 20th April 2021

16. On 23rd March 2021, the Appellants filled their submissions followed by the Respondent’s on 31st March 2021.

17. The matter was mentioned on the 11th of May 2021 where the only advocate for the Respondent was present and the following directions were issued:

a. The panel to consider the matter shall constitute:

i. John M. Ohaga S.C.

ii. Gabriel Ouko and

iii. Gichuru Kiplagat

b. The Tribunal to share the submissions with the Appellants;

c. The decision shall be delivered on the 25th May 2021. ;

d. Advocate for the Respondent to inform advocate for the Appellants of the hearing date.

18. The Tribunal adjourned to deliberate and issue a considered decision in the matter.

Arguments

A. The Appellants’ Case

19. The Appellants raised 5 triable issues for this Tribunal to consider:

a. Whether the complaint before the Judicial Committee was properly lodged;

b. Whether the Judicial Committee failed to accord the appellant a fair hearing and fair administrative action;

c. Whether the Judicial Committee was independent of other parties; and

d. Whether the reliance of the Judicial Committee on the Special provisions in Seven’s matches and tournaments was justified.

20. The Appellants submit that the Judicial committee flouted WR regulation 20. 14 by not personally serving them. Appellants also stated that the Respondent violated WR Regulation 20. 6.1 by adjudicating on a complaint lodged directly without t the involvement of Designated Disciplinary Officer.

B. Respondent’s Case

21. On their part, the Respondent submitted that the appeal is gravely misconceived, gravely misplaced, frivolous, vexatious and should therefore be dismissed with costs.

22. They submitted two issues for determination by the honourable Tribunal . They are:

a. Whether the Respondent’s Independent Tribunal acted ultra vires contrary to World Rugby Regulations; and

b.Whether the Applicants are entitled to have the decision of the Respondent’s Independent Judicial Committee quashed.

Issues for Determination

23. As what we have before us is a first appeal, we remind ourselves of the Court’s mandate on a first appeal as set out in Selle vs Associated Motor Boat Company Ltd [1968] EA 123 where Sir Clement De Lestang stated:

“This court must consider the evidence, evaluate it itself and draw its own conclusions though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.

However, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence, or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”

24. Further in considering the appeal this Tribunal remains guided by the principles enunciated in PIL Kenya Ltd vs Oppong [2009] KLR 442; that it will not interfere unless it is satisfied that the Judge misdirected himself in some matter and as a result arrived at a wrong decision, or that it is manifest from the case as a whole that the Judge was clearly wrong in the exercise of discretion and occasioned injustice by such wrong exercise.

25. With the above case law in mind, we have considered the appeal before us, the written submissions, the authorities cited and the issues for determination in this appeal appears to be simple. That is, whether the Respondent arrived at its decision in accordance to the laid down WR regulations.

26. The bone of contention between the parties and which also is the crux of this appeal appears to be whether the regulations were followed to the latter or did the Respondent act without due regard to the regulations.

i. Whether the Respondent followed the correct procedure in handling the complaint

27. Key among the issues raised by the Appellants, is that they were not accorded a chance for fair hearing both before the Kenya rugby judicial Independent Committee and the Appellate Tribunal of the Kenya Rugby Union.

28. In their submissions they state that before the KRU Judicial Committee, they were not served with the Notice of Disciplinary Hearing held on 21st August 2019 and thus were not able to appear before the Committee and give their side of the story.

29. Regulation 18 Appendix 2. 1 states prerequisites of a disciplinary hearing. It reads:

“2. 1

The procedure of Judicial Committees or Judicial Officers in all proceedings shall be as the appointed Judicial Committee or Judicial Officer shall determine in each case. However, subject to the power to regulate its own procedures, it shall:

(a) seek to conform generally with the procedures set out in Section 1 above, this Section 2 and Section 3 below; and

(b) ensure that a Player and/or Person subject to disciplinary proceedings has a reasonable opportunity to be heard and be informed of the charge(s) and to present his case.” (emphasis ours)

30. Despite the above provision, Regulation 18 appendix 2. 3 goes further to indicate instances where the disciplinary proceedings may be held in the absence of the person concerned or their representative. It reads:

“The Judicial Committee or Judicial Officer shall endeavour to ensure that

disciplinary proceedings are heard in the presence of the Union, Player and/or Person who is the subject of the proceedings. Nothing in the Regulations, or otherwise, shall prevent a Judicial Committee or Judicial Officer hearing and determining disciplinary proceedings in their absence where the Union, Player and/or Person concerned (and/or their representatives) do not attend the hearing. However, hearings may only be held in the absence of any of the parties if those parties have first been given the opportunity to attend and have declined the opportunity without reasonable excuse or consented to a hearing in absentia. In such circumstances the Judicial Committee or Judicial Officer may take any written representations into account in making its decision.”

31. In the current case, it has been clearly evidenced by the Appellant s that at the initial hearing before the KRU Judicial Committee they were not made aware of the date of the disciplinary proceedings and thus were unable to appear before the Committee and defend themselves.

32. Further, when the matter was before the Appellate Committee, the Appellant s were again not accorded the chance to appear and make oral or written submissions on why they were opposed to the ruling of the KRU Judicial Committee.

33. Rather, the Appeals committee iniquitously dismissed the appeal via an email citing unnamed regulations and time. There is no indication in the email dismissing the appeal of how the committee reached the decision.

34. This is contrary to Regulation 20. 11. 1 which state that “a Player, Person or other party who is found to have committed an act or acts of Misconduct shall have the right to appeal against the finding of an offence of Misconduct and/or the sanction imposed. In cases handled by a Union or Tournament Organiser, the Union, Tournament Organiser and World Rugby shall have the right to appeal.”

35. Further, Regulation 18 appendix 1. 13 provides for application of general principles of natural justice. It reads;

“In respect of any matter not provided for in this Regulation 18, Appendix 1, the appropriate body or person shall take a decision according to general principles of natural justice and fairness.”

36. In the case of Republic v Advocates Disciplinary Tribunal Exparte Apollo Mboya [2019] eKLRthe honourable Judge in reaching is decision stated the importance of the principles of natural justice. He postulated:

“47. A decision suffers from procedural impropriety if in the process of its making the procedures prescribed by statute are not been followed or if the "rules of natural justice' are not adhered to. Decision makers must act fairly in reaching their decisions. This principle applies solely to matters of procedure, as opposed to considering the substance of the decision reached.

37. The honourable judge goes further to define when a decision can be said to be contrary to natural justice. Hs states:

“A decision contrary to natural justice is where the presiding Judge or Magistrate or Tribunal denies a litigant some right or privilege or benefit to which he is entitled to in the ordinary course of the proceedings, as for instance refusing to allow a litigant to address the court, or where he refuses to allow a witness to be cross-examined, or cases of that kind”

38. The Honourable Judge in Apollo Mboya (Supra) goes ahead to state, the constitution recognizes a duty to accord a person procedural fairness or natural justice when a decision is made that affects a person’s rights, interests or legitimate expectations. It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.

39. With the above caselaw, regulations and evidence tabled before the Tribunal it is clear that not only did the KRU Independent Judicial Committee fail to adhere to the World Rugby Regulations, they also did not adhere to the principles of natural justice and fair administration enshrined in Section 4 of the Fair Administrative Act and Article 47 of the Constitution of Kenya 2010.

40. Failure to accord the Appellant s a chance to be heard both at the first instance and at the appeal, failure to give reasons for the dismissal of the appeal and failure to adhere to World Rugby regulations governing the procedure of the Judicial Committee and Appeal Committee renders their actions invalid.

41. The Appellants also raise the issue of the union’s failure to nominate a designated disciplinary officer who would ideally undertake initial procedure to determine whether the complaint lodged constituted a misconduct on the part of the Appellant s.

42. This is in clear departure of the guidelines laid out in Regulation 20 of WR Regulations.

43. Having cited the Appellants for violations contrary to regulation 20 of WR Regulations, it would be expected of the Respondent to clearly adhere to the procedure laid down in Regulation in Regulation 20. 6.1 on the nomination of a Designated Disciplinary officer.

44. The Appellants herein are alleging that the Respondent exercised their disciplinary powers without due regard to the procedures established by the WR Regulations. The Appellants submit that the proper procedures were not followed and as a result their rights were infringed, thus inviting the jurisdiction of the Tribunal under Section 58(a)i of the Sports Act.

45. They claim that this amounts to the Respondent acting ultra vires. In order to ascertain this claim, we need to understand what the proper procedure is and then conclude on whether it was followed.

46. As stated in paragraph 38 hereinabove, the procedure is set out in regulation 20 of the WR Regulations. It reads:

“20. 8.1 Subject to Regulations 20. 6.1 and 20. 7.2 any Misconduct complaint by the designated disciplinary officer shall be sent in writing to the Union of the Player, Person or body against whom the Misconduct complaint is made (or other applicable body). The Misconduct complaint should contain the following information:

(a) date and place of the alleged Misconduct;

(b) the name of the Player, Person or other party in respect of whom the complaint is made and (where applicable) his/their Rugby Body or

Union; and

(c) details of the alleged Misconduct (including brief details of the evidence to be relied upon).

20. 8.2 On receipt of a Misconduct complaint, the Union shall send a copy of the Misconduct complaint and applicable information and/or reports to the Player or Person (and their Rugby Body) or other party in respect of whom it is made together with notification of the appointed Judicial Committee or Judicial Officer and relevant details regarding the Misconduct hearing.

20. 8.3 A Union, Tournament Organiser, Player or Person may refer an allegation of Misconduct to the designated disciplinary officer appointed by the Host Union or Tournament Organiser having jurisdiction. The designated disciplinary officer shall consider the matter and determine whether to bring a Misconduct complaint or not as a result of a referral subject always to the provisions of this Regulation.”

47. From reading of the above regulations, it is clear that there needs to be an appointed Designated Disciplinary Officer to deal with matters of misconduct that may occur within the jurisdiction of the Host Union.

48. Regulation 20. 6.2 states that the role of the designated disciplinary official may be delegated to the Citing Commissioner or the Citing Commissioner Liaison Officer, the Match commissioner or other suitable person.

49. Regulation 20. 8.3 cited hereinabove also provides that the union itself may refer an allegation of misconduct to the DDO appointed by the Host union or tournament organiser.

50. It is clear from the above regulations that before any misconduct proceedings are commenced, there needs to be a DDO in place before the Judicial Committee may come into the picture in Regulation 20. 8.3 or 20. 9.

51. In Republic v Public Procurement Administrative Review Board & 2 others [2019] eKLR; Nairobi HC Misc. Civil Application No. 187 of 2018 it was postulated that:

“29. Procedural impropriety generally encompasses two things: procedural ultra vires, where administrative decisions are challenged because a decision-maker has overlooked or failed to properly observe statutory procedural requirements; and common law rules of natural justice and fairness. Lord Diplock noted that "failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice," is a form of procedural impropriety….”

52. It is clear from the above regulations that before any misconduct proceedings are commenced, there needs to be a DDO in place before the Judicial Committee may come into the picture in Regulation 20. 8.3 or 20. 9.

53. Further, an ultra vires action is defined in the Apollo Mboya Case as “one which is taken either when the administrator does not have the capacity to make a particular decision or take a particular action; or where the administrator has the capacity but fails to follow the laid down procedure for making such a decision or action.” KRU has the mandate to deal with cases involving alleged misconduct that occur within its jurisdiction but, exercise of such powers must still be done according to the law.

54. It is thus our considered opinion that the KRU did not follow the laid down procedure in the WR Regulations and thus is said to have acted ultra vires.

Summary

55. The applicants have demonstrated that the Respondent acted ultra viresof their mandate and that their right to fair administrative action was violated. They are therefore entitled to appropriate reliefs.

56. On their part, the Respondent have not shown why the discretion bestowed upon this Tribunal to review and uphold or vary from their decision should be exercised in their favour. As we have determined above the Appellants have established their case against the Respondent.

57. To summarize therefore, the Tribunal has come to the following conclusions:

a. We find that the Appellants have demonstrated procedural impropriety, breach of the rules of Natural Justice and unfairness in the manner the complaint against them was heard and determined.

b. We find that the that the Appellants have clearly demonstrated that the Respondent acted ultra vires in their handling of the matter.

c. The prayer for compensation for loss of revenue, tampering with the Appellants career development although pleaded has not been specifically proven and thus is not granted.

58. In view of the above, we hereby order and direct as follows:

a. That the findings, decision and sanctions imposed by the KRU Independent Judicial Committee and upheld by the KRU Appeals Committee are declared null and void as they are founded on procedural impropriety and violations of rules of natural justice.

b. The suspension imposed by the KRU Independent Judicial Committee and upheld by the KRU Appeals Committee is thus quashed as it is a result of a flawed process and cannot be binding on the Appellants.

c. Costs to be borne by the Respondent.

DATED AT NAIROBI THIS 25TH DAY OF MAY 2021.

Signed:

John M Ohaga, SC; CArb; FCIArb,Chairperson

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Mr. Gabriel Ouko, Member

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Mr.E Gichuru Kiplagat, Member

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