[2015] KESDT 2 (KLR)

REPUBLIC OF KENYA

THE JUDICIARY

OFFICE OF THE SPORTS DISPUTES TRIBUNAL

SPORTS DISPUTES TRIBUNAL APPEAL NO 2 OF 2015

CHARLES KARIUKI WAMBUGU

VERSUS

THE NATIONAL OLYMPIC COMMITTEE OF KENYA

JUDGMENT

The Parties

The Appellant, Charles Kariuki Wambugu is an adult of sound mind and his address of service for purposes of this suit is care of Messrs. Njeru, Nyaga & Co. Advocates, Uganda House 3rd Floor, Kenyatta Avenue, P O Box 27584 – 00100 Nairobi.

The Respondent is the National Olympic Committee of Kenya which is the exclusive authority for the representation of Kenya at the Olympic Games and at the regional, continental or world multi-sports competitions patronised by the IOC. It derives its mandate from the Olympic Charter.

The Appellant and Respondent in this Appeal entered appearance and filed the appropriate documents.

The Background

The Appellant lodged its Memorandum of Claim together with two Supporting Affidavits sworn by Susan Kariuki Wambugu and Harry Davies on the 4th of March, 2015. The Respondent filed its response on the 29th April 2015;

The Respondent in its response raised an issue as to the jurisdiction of the Tribunal over the Respondent which issue has already been determined.

The Dispute

The facts of the dispute are relatively simple and straightforward.

The Appellant’s grievance is that having been selected as the manager of the Kenya Bowling Association team to the 2014 Commonwealth Games (‘the Games’) on 18th November 2013, he was notified of his removal from this position shortly before the team’s departure to the Games. Such notification was communicated to him verbally by the Respondent through its Deputy Secretary, one Mr. Chacha.

Needless to state, this decision caused the Appellant great embarrassment and anguish as he had until then performed his duties and responsibilities as such team manager diligently and conscientiously.

The Appellant traces his removal to certain disputes which had arisen between himself and the Kenya Bowling Association whom he blames for pressurizing the Respondent to deprive him of his position as such team manager.

The Respondent in response states that it was not its responsibility to either appoint or remove the Appellant as team manager as it was not his employer nor the body that selected him and asserts that such power lay with the Kenya Bowling Association.

The Appellant testified at considerable length and also called witnesses who testified in support of the facts that he relies on; the Respondent on the other hand did not see fit to put forward any evidence and relies only on the submissions put forward by its legal counsel.

Having considered the pleadings filed and the elaborate submissions by the respective advocates for the parties, the Tribunal finds that the sole issue for determination is the question whether the Respondent removed the Appellant as team manager for the Bowls team and precluded him from travelling to the Commonwealth Games and if so, the propriety of such action.

It is clear that the Kenya Bowling Association has sole responsibility for the control of all competitions, both international and local. Under clause 21 of its constitution it states that:

The council shall control all entries into international and/or inter-association competitions.

Further, under the Association’s ‘Team Selection Regulations’:

The selection of any team to represent the Association in any international or overseas competition shall be made by a selection committee appointed for the purpose by council.

In terms of clause 11 of the KBA Constitution, the decision by the selection committee is final.

The Respondent, as its name suggests, is the National Olympic Committee and its charter specifically mandates it to inter alia

‘7. 2: send competitors, team officials and other team personnel to the Olympic Games in compliance with the Olympic Charter;

In this case, however, it was the agency retained by the Government of Kenya to coordinate the participation of teams to the Commonwealth, not Olympic Games. To that extent, we do not consider its charter to be germane to the activities around the Commonwealth Games.

The Respondent clearly had no authority to enter into the affairs of the Kenya Bowling Association. It has not sought to explain why it saw fit to do this and no explanation has been offered to the Tribunal. The factual issues set out in the submissions of counsel belong to the hearing which the Respondent did not see fit to participate in.

The Appellant has therefore demonstrated his case on a balance of probability and we have no hesitation in granting the declaration sought to the effect that the Appellant’s exclusion from the Kenya team was unlawful and without just cause.

The Appellant has sought various damages both special and general.

We are cognizant of the fact that the Appellant is not a professional sportsman and cannot therefore claim damages arising from the loss of allowances as these do not constitute income but rather are in the nature of a stipend paid to athletes and other officials to enable them meet basic needs while they are preparing for or participating in sporting events on behalf of the country.

We are also not satisfied that there has been any damage to the Appellant's reputation as the manner of communication of his exclusion from the Kenya team was not published or otherwise broadcast. Indeed, the Tribunal questioned the Appellant closely about this aspect of the claim but could detect nothing that suggested that his exclusion from the Bowls team had been handled in such manner as to cause him any particular public humiliation or distress.

With respect to mental anguish, the general practice is still to deny damages as mental suffering is not itself a pecuniary harm and it can scarcely be said to be measurable at all in terms of money.

We therefore find that we unable to award the special or general damages sought.

However, no wrong should be without a remedy. At the close of the hearing, we did ask counsel for the parties to address the Tribunal on the principle of moral damages. We have considered these submissions.

The emerging jurisprudence is to the effect that moral damages are not meant to be punitive but are designed to compensate and alleviate the physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar harm unjustly caused to a person. An award of moral damages calls for the presentation of 1) evidence of besmirched reputation or physical, mental or psychological suffering sustained by the claimant; 2) a culpable act or omission factually established; 3) proof that the wrongful act or omission of the defendant is the proximate cause of the damages sustained by the claimant. Ordinarily, the award of moral damages is more an exception rather than the norm.

Dedicated sports persons apply themselves to their sport with passion and honesty and will no doubt suffer wounded feelings, shock and humiliation if they are treated unfairly. Organisations charged with the responsibility of running sport in Kenya must begin to realize that they will be held accountable for their actions if they act contrary to well- known principles of fairness and integrity.

The Court of Arbitration for Sport (the “CAS”) in Ariosa v. Club Olympia has for the first time introduced into the scope of compensation due to players following a termination without “just cause” by their club the concept of “moral damages”. The Court said Olympia had acted in bad faith and caused the player ‘angst and insecurity’ when it suspended his five year contract in 2013 while the player underwent chemotherapy. The Court found that the club’s conduct has been so serious as to undermine the“sporting ethics” of football.

While the Respondent’s conduct cannot be said to be on the same footing as the facts in Ariosa v. Club Olympia, we consider that the Appellant is entitled to some form of compensation arising from the manner of his ejection from the team and we award him nominal damages in the sum of Kshs. 350,000. 00.

He shall also have the costs of this action.

DATEDat NAIROBI this 27th day of October, 2015

Signed: _______________________

John M. Ohaga

Chairman, Sports Disputes Tribunal

Signed: ________________________

Robert Asembo

Member, Sports Disputes Tribunal

Signed: _______________________

GMT Ottieno

Member, Sports Disputes Tribunal

Delivered in the presence of:

1. ________________________

2. ________________________

3. ________________________

4. ________________________