[2024] KESDT 1562 (KLR)

Kibunja v Veterinary Labaratory Sports Club Board of Directors (Tribunal Case E020 of 2024) [2024] KESDT 1562 (KLR) (12 November 2024) (Decision)

Neutral citation: [2024] KESDT 1562 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Tribunal Case E020 of 2024

E. G. Kiplagat, Chair, MN Kimani & Peter Ochieng, Members

November 12, 2024

Between

Michael Kibunja

Claimant

and

Veterinary Labaratory Sports Club Board of Directors

Respondent

Decision

The Case 1. The Claimant has approached the Tribunal vide his statement of claim and application under certificate all dated 22/07/2024 filed with the Tribunal.

2. The Claimant averred that by a letter dated 05/09/2023 the Honourable Secretary of the Respondent’s Board summoned the Claimant to appear before a Disciplinary Committee of the Respondent on 14/09/2023 at the Club’s Conference Room to present his justification.

3. The Claimant also alleged that 13/09/2023 a day before the date of the announced Disciplinary Committee proceedings, the Claimant instructed Mr.F.N.Wamalwa Advocate to represent the Claimant and to reply to the Respondent.

4. The Claimant further averred that as a consequence of the foregoing premises the said Advocate for the Claimant requested the Respondent to furnish to him as the Advocate for the Claimant a statement of complaints against the Claimant and with reference to the hearing scheduled for the 14/09/2023 the Advocate asked for reasonable time to be instructed by the Complainant on his defence and reasonable time the Advocate and his Claimant to appear before the Disciplinary Committee.

5. The Claimant also noted that through a letter dated 25/09/2023 the Respondent furnished a statement of three complains set out within the said letter to the Claimant and a hearing date was fixed unilaterally and very short notice for 03/10/2023 at 3pm thereof and this was sent to the Claimant and not his Advocate.

6. The Claimant further averred that there were no opportunities from the Respondent to allow him or his Advocate to pick a convenient date either physically or virtually. Consequently, neither the Claimant nor his Advocate made it to the hearing by the Respondent’s Disciplinary Committee on 03/10/2023 by 3pm.

7. Furthermore, the Claimant stated that the participation of the Honourable Secretary of the Board of the Respondent in the proceedings of the Respondent’s Disciplinary Committee was the de facto Claimant, star witness for the prosecution, the prosecutor and the judge all rolled in the same person was contrary to the principle of judex in causa suam and Article 18 of The constitution of Kenya.

8. The Claimant contended that he was not given adequate time to prepare for his defence before the Disciplinary Committee and was in all the circumstances denied a fair trial by an impartial tribunal in violation of Article 50 of The constitution of Kenya.

9. The Claimant also stated that his right to a due process and the rule of law contrary to Articles 27(1) and 50 and within the meaning and intendment of Article 2(3) of The constitution of Kenya.

10. The Claimant further stated that the Claimant without undue delay that is on 16/10/2023 appealed the decision of the Disciplinary Committee to the Board of the Respondent Sports Club as stipulated by the provisions of paragraph 14(a)(viii) of the Respondent’s constitution but the said appeal was yet to be heard or determined.

11. The Claimant also noted that the decision of the Disciplinary Committee of 03/10/2023 has not or was not confirmed by the Disciplinary Committee at its next session.

12. The Claimant stated that the Respondent has without reasonable cause and in total disregard of the orders of this Tribunal denied the Respondent access to the golf club’s facilities and conveniences and privileges in association and collegiality with fellow members of the Respondent’s sports club.

13. The Claimant’s prayers are summarized as follows:a.A declaration that the purported laying by the Honourable Secretary of false charges on 25/09/2023 and 03/09/2023 without any evidence of instructions by the Board of the Respondents Sports club is null and void.b.A declaration that the decision of the Disciplinary Committee made on or about 03/10/2023 was null and void ab initio for breaching Articles 10,27(1) and 50 of The constitution of Kenya and for being heard by an impartial tribunal.c.General damages for breach of the claimant’s contract of club membership with the Respondent.d.An order of injunction to restrain the Respondent through itself or by any person acting on behalf of or on its instructions or with its encouragement from preventing the Claimant’s free unhindered access to the Respondent’s golf club or from participating in membership activities and from freely exercising or enjoying his membership rights and privileges as a member of the Respondent’s golf club.e.Costs of the suit.f.Any further or other reliefs within the jurisdiction of the Tribunal.

The Response 16. The Respondent filed a reply to a statement of claim dated 12/11/2024 denying the allegations and stating that the Claimant wrote to the Respondent and acknowledged his availability for hearing of his appeal to the Board on 04/07/2023 and that the Claimant did not instruct his Advocate to Reply to the Respondent’s letter of 13/09/2023.

17. The Respondent also denied that it unilaterally fixed a short notice and stated that the Claimant wrote to the Respondent and acknowledged his availability for a hearing of his appeal to the Board on 04/07/23 in relation to the suspension.

18. Furthermore, the Respond also states that despite confirming availability the claimant and his advocate did not attend the Disciplinary Committee hearing on their own decision for suspension and therefore they cannot claim that they were denied a fair trial before the Disciplinary Tribunal.

19. The Respondent further averred that the on 18/06/2023 the Claimant wrote to the Vice Chairman of the Board and requested for an appeal on his suspension which was outside of the stipulated time as per the Club’s constitution.

20. The Respondent also noted that the Claimant’s appeal was heard and determined on 04/07/2023 and a notification on the unsuccessful appeal and suspension confirmation letter was sent to the Claimant by the Hon Secretary to the Board on 07/07/2023 and that the pending disciplinary meeting was in regards to further infractions and disturbances by the claimant after his expulsion and the claimant had admitted to the same in his statement of claim.

21. The Respondent further stated that the claimant cannot be allowed to access the Respondent’s premises and facilities as he is expelled from the Respondent and no longer a member of the Respondent and that he never appealed against his expulsion.

22. The Respondent also averred that they observed due process and adhered to the provisions of right to fair hearing under The constitution of Kenya.

23. The Respondent admitted the jurisdiction of this court and prayed for:a.The Claimant’s claims against the Respondent be dismissed with costs and interests in favour of the Respondent.b.The Tribunal to make a finding that the Claimant to be in continual breach of the decision to expel him by his own admission.c.Judgment be entered against the Claimant for damages for trespass and that the decision to expel the Claimant is binding upon the Claimant.Sports Dispute Tribunal Case Number E021 of 2023-Michael Kibunja v. Veterinary Laboratory Sports Club & 2 Others

24. The Claimant earlier filed Sports Dispute Tribunal Case Number E021 of 2023-Michael Kibunja v. Veterinary Laboratory Sports Club & 2 Others on or about 7th August, 2023 against the Respondents following his suspension from the Club on disciplinary grounds by the First Instance Disciplinary Committee which the Appeals Board upheld. On 13/04/2023,the 1st Respondent (the Respondent here) had suspended the Claimant for a period of eighteen months from the Club premises during which period his handicap was also suspended.

25. 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

26. 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

27. The matter was heard by the Tribunal and a decision delivered on 07/02/2024 where the Tribunal made a finding that there was no due process followed by the Respondent and the Tribunal proceeded to annul the decision of the Respondent’s Appeals Board. The Tribunal also quashed the suspension of the Claimant.

Hearing 28. The Tribunal heard the parties on 04/09/2024. The parties relied on their pleadings as well as oral and written submissions. The Claimant filed written submissions dated 25/09/2024 and the Respondent filed written submissions dated 02/10/2024.

Determination 29. The Tribunal has taken into account the parties’ pleadings, oral and written submissions and all documents in support of the parties’ cases. The Tribunal has also made reference to the Respondent’s constitution, the Sports Act, the Fair Administrative Action Act as well as The constitution of Kenya. These are our findings.

30. The jurisdiction of this Tribunal stems from section 58 of the Sports Act that provides:“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; andc.appeals from decisions of the Registrar under this Act.”

31. The parties herein have by their express admission in their pleadings and conduct submitted themselves to the jurisdiction of this Tribunal. We therefore find that we have the jurisdiction needed to determine this appeal under section 58 of the Sports Act.

32. Article 50 of The constitution of Kenya provides that:1. Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.2. Every accused person has the right to a fair trial, whichincludes the right:a.to be presumed innocent until the contrary is proved;b.to be informed of the charge, with sufficient detail to answer it;c.to have adequate time and facilities to prepare a defence;d.to a public trial before a court established under this Constitution;e.to have the trial begin and conclude without unreasonable delay;f.to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed;g.to choose, and be represented by, an advocate, and to be informed of this right promptly;h.to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;i.to remain silent, and not to testify during the proceedings;j.to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;k.to adduce and challenge evidence;l.to refuse to give self-incriminating evidence; ”

33. Article 47 of The constitution of Kenya also provides that“(1)Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. (2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.”

34. Article 2 of the constitution of Kenya further provides that:“(1).This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government…..(3).The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ.(4)Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.”(Emphasis Ours).

35. Clause 14 of the Respondent’s constitution sets out the procedure for handling club and non-golf related offences. The Board through the Disciplinary Committee (the DC) has the jurisdiction to conduct such proceedings. Clause 14 (ii) of the Respondent’s constitution provides that the accused shall be given an opportunity to respond and where the DC elects to have a hearing the accused shall be given 7 days’ notice to appear for the hearing. Lastly, Clause 14 (iii) provides that the accused will be given an opportunity to defend the accusation and call any witness.

36. The constitution of Kenya is supreme and takes eminence over other laws including the Respondent’s constitution as noted above under Article 2 of The constitution of Kenya. Therefore, where the provisions of Constitution of Kenya and that of the Respondent’s constitution conflict The constitution of Kenya will prevail and any other contrary provisions are null, void and invalid. Similarly, much as the Fair Administrative Action Act is inferior to The constitution of Kenya it nonetheless ranks higher in hierarchy and supersedes the Respondent’s constitution.

37. The Respondent wrote a letter dated 17/08/2023 to the Claimant for violating clause 12 of the Respondent’s constitution while on suspension and the Claimant was given 7 days to respond. The Claimant wrote back to the Respondent on 20/08/2023 stating that he had secured the services of a lawyer one,F.N.Wamalwa & Co. Advocates who would handle the matter. He proceeded to provide the lawyer’s physical address.

38. On 05/09/2023 the Respondent wrote to the Claimant and issued a notice for him to appear before its DC on 14/09/2023 to face charges and defend himself. This communication was directed to the Claimant yet he had on 20/08/23 written to the Respondent that he had since hired a lawyer to take conduct of the matter.Clearly,this was in violation of the rights of the Claimant pursuant to Article 50 (2)(g) as noted above that every person has a right to choose, and be represented by, an advocate, and to be informed of this right promptly.

39. The Claimant’s lawyer wrote to the Respondent on 13/09/2023 requesting to be furnished with the charges the Claimant was facing and requested for adequate time to respondent. The Claimant’s lawyer also noted that the charges had not been communicated to his Client. Lastly, the lawyer contested the proposed date of 14/09/2023 given for the hearing stating that it was not convenient to him and his client.

40. On 25/09/2023 the Respondent wrote back to the Claimant’s lawyer laying out the charges in detail but now with a hearing date fixed before the DC for 03/10/23 at 3pm at the Respondent’s Boardroom. The following charges were levelled against the Claimant:a.Mr Kibunja is accused of entering the Vetlab Golf Premises in on multiple occasions between August 1st and September 15th this year. These entries involved threats and/or disregarding the security personnel in place despite being aware of his suspension.b.He is further charged with unlawfully obstructing the entry to the club on various dates between August 1st and September 15th this year. Specifically, he left his vehicle unattended at the club gate thereby blocking access to and exit from the premises causing significant inconvenience to other authorized users.c.On several occasions between August 1st and September 15th this year Mr. Kibunja allegedly threatened to physically harm both sfaff members and other club users. These threats occurred when security personnel and other staff attempted to prevent him from accessing the club.

41. It is rather strange that the Respondent proceeded to fix a date unilaterally without seeking to know if this date was convenient to the Claimant and his lawyer. Secondly, the notice was rather short as it was just well over one week and there is not a single evidence from the Respondent showing that the letter and notification date were either received by the Claimant and/or his lawyer ahead of time. Thirdly, there were allegations set out against the Claimant but there was no reasonable access for the Claimant to the evidence relied upon by the Respondent.

42. We submit that the notice period was rather short and the date unilaterally taken and this to a very great extent prejudiced the Claimant’s case and severely infringed his rights under Article 50(2) (c) and (d) of The constitution of Kenya by failing to give him adequate time and facilities to prepare a defense and to be informed in advance of the evidence the Respondent intended to rely on, and for him to have reasonable access to that evidence.

43. Despite all these infractions by the Respondent, the Respondent still proceeded on the 03/10/2023 to deliver a decision expelling the Claimant as a member of the Respondent. The proceedings of this material day again took place without giving a chance and sufficient notice to the Claimant or his lawyer to appear before the DC contrary to Article 50(2) (f) and (k) to be present when being tried and to adduce and challenge evidence against him. This was also contrary to Clause 14 (iii) of the Respondent’s constitution that provides that the accused would be given an opportunity to defend the accusation and call any witness.

44. Moreover, the Respondent’s decision of 03/10/2023 was not a reasoned one contrary to Section 4 (3)(a) of the Fair Administrative Action Act. The Respondent stated as follows in part:“…We are writing to inform you that the Club Disciplinary Committee met and heard the case against you as outlined in the letter. Having heard the evidence presented and taking due consideration of all the matters presented ,the committee found you in gross violation of the club constitution as per the aforementioned letter and reached the decision to expel you from the membership of the club effective today, Tuesday October 3,2023. ”

45. In Sports Dispute Tribunal Case Number E021 of 2023- Michael Kibunja v. Veterinary Laboratory Sports Club & 2 Others the Tribunal said:“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…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”

46. Consequently, the elements of what constitute natural justice were absent as this decision of 03/10/2023 missed an opportunity for the Respondent to demonstrate to the Claimant that the law and facts were applied correctly for the Respondent to elect to exercise his right to appeal the decision or not.

47. It is also worth to point out that despite this Tribunal on 07/02/2024 in Sports Dispute Tribunal Case Number E021 of 2023- Michael Kibunja v. Veterinary Laboratory Sports Club & 2 Others annulling the decision of the Appeals Board of the Respondent in its entirety and quashing the suspension of the Claimant by the Respondent, the Claimant has still not been allowed access to the Club and its facilities on various occassions.This is evident from the letter dated 12/05/2024 annexed as part of the Claimant’s bundle of documents. Here, the Claimant requested his lawyer to file another suit after being denied entry into the Respondent’s premises and club. This explains the Claimant’s quest to pursue the instant second suit.

48. In the final analysis, we find that the Respondent has once again failed to afford due process to the Claimant. The proceedings and decision of the Respondent of 03/10/2023 were the hallmarks of anything but a fair trial. They were arbitrary and no deliberate efforts were made by the Respondent to obverse the dictates and provisions of The constitution of Kenya while exercising quasi-judicial powers.

49. Since costs follow the event and given the Respondent’s overall conduct and its acts of omission and commission thus far, we find it necessary to award costs to the Claimant.

50. The prayer for general damages by the Claimant is not allowed as they have not been specifically pleaded and proved.

Conclusion 51. It is therefore in consideration of this, as well as the parties’ submissions that the Tribunal makes the following orders:a.The petition/claim dated 22/07/2022 is hereby allowed in part;b.The decision of the Disciplinary Committee of the Respondent of 03/10/2023 is null and void and is hereby set aside in its entirety;c.The Respondent is ordered to give the Claimant unhindered or unbridled access to the Respondent’s Golf Club and facilities and the Respondent is injuncted and restrained by itself or by any person acting under its authority or on its behalf or through its instructions to any person from denying the Claimant from accessing the Respondent’s premises or club or property in any way or from infringing his membership rights and privileges as a member of the Respondent’s golf club;d.Costs to the Claimant;e.Orders accordingly.

DATED AT NAIROBI THIS 12TH DAY OF NOVEMBER, 2024. GICHURU KIPLAGAT - PANEL CHAIRPERSONMARY N. KIMANI - MEMBERPETER OCHIENG, MEMBERHearing: 04/09/2024Appearances1. The Claimant is represented by F.N.Wamalwa & Co. Advocates.2. The Respondent is represented by Effie & Co. Advocates.The Parties1. The Claimant states that he is a member of the Respondent under member number K.23. 2. The Respondent is a sports organization registered as such under the Sports Act.