[2022] KEHC 9850 (KLR)

Koigi & another v Mauladad & 3 others (Sued on behalf of the Kenya Ladies Golf Union) (Civil Suit 464 of 2009) [2022] KEHC 9850 (KLR) (Civ) (8 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9850 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 464 of 2009

JK Sergon, J

July 8, 2022

Between

Rachel Koigi

1st Plaintiff

Sophie Njenga

2nd Plaintiff

and

Shaila Mauladad

1st Defendant

Patricia Odima

2nd Defendant

Anila Hindocha

3rd Defendant

Archana Sanger

4th Defendant

Sued on behalf of the Kenya Ladies Golf Union

Judgment

1. The plaintiffs herein filed a suit by way of the plaint dated 31st August, 2009 and sought for judgment against the defendants jointly and severally in the following manner:a)A declaration be issued to declare that the defendants’ decision to suspend the plaintiffs contained in a Notice dated 29th June, 2009 is unlawful.b)A declaration be issued to declare that the defendants’ decision to suspend the plaintiffs is a nullity ab initio for want of jurisdiction.c)An order to quash the defendants’ decision to suspend the plaintiffs contained in the Notice dated 29th June, 2009. d)A declaration be issue to declare that the defendants decision to suspend the plaintiffs was actuated by malice, bias, bad faith and improper motives.e)A declaration be issued to declare that the defendants’ suspension decision contained in the Notice dated 29th June, 2009 was made in violation of the plaintiff’s right under Clause 24. 1 of the CONGU Rules.f)A declaration be issued to declare that the resolution of the Unions Special Extra –Ordinary General Meeting passed on 24th August, 2009 is a nullity ab initio.g)A declaration be issued to declare that the defendants have no power to withdraw or negate the privileges accorded to the first plaintiff as a past last chairman of the Kenya Ladies Golf Union (KLGU).h)An Order of permanent injunction to restrain the Kenya Ladies Golf Union by its officials, agents and servants from sanctioning the plaintiffs in respect of matters arising from Kenya’s participation in the Gilberson and page Tournament of 2009 in Zimbabwe.i)General damages.j)Costs of this suit.k)Any further and /or other relief

2. The plaintiffs pleaded in their plaint that on 9th February ,2009 during a meeting of the Union Council ,lady captains ,vice lady captains and handicap managers held at vet lab sports club ,the 1st defendant informed the attendees that the council of the union had made a decision not to send a team to the G& P tournament in Zimbabwe on account of adverse economic conditions worldwide and especially in Kenya which made expenditure of Kshs.1. 2 million towards coaching ,uniform, allowances and travel tickets of the team of eight unjustified ,members or the alleged failure by ladies to volunteer to the team.

3. The plaintiffs further pleaded in their plaint that real reason or grounds for the unilateral decisions of the Union’s Council at the instigation of the 1st defendant to boycott the G& P tournament were that allegations that the ladies team are too old and go to the G & P too often, allegations that the team is made up of Kikuyu and Kamba idlers and the 1st defendant’s revulsion towards Zimbabwe on political and racial grounds.

4. It was pleaded that the plaintiffs and other women golfers formed an adhoc committee spearheaded by the plaintiffs to seek sponsorship of the team to represent Kenya in the tournament, accordingly at the fundraising the adhoc committee raised Kshs.372,500/= to cater for the participation.

5. It was further pleaded by the plaintiffs that soon after the fundraising at the RNGC was held the 1st defendant objected to the other fundraising events on the grounds, interalia, that the Council stood its grounds and that it would not send a team to Zimbabwe.

6. It was further pleaded that in the wake of deliberations over the plaintiffs’ resolve to spearhead plan to ensure Kenya’s participation in the G & P competition, after three weeks of the back and forth email correspondence to attend a reconciliation meeting which was held on 22nd June 2009, during the said meeting Ms. Sheena Round Turner announce that the Union considered the behavior of the plaintiffs and other golfers in organizing Kenya’s participation in G & p was unacceptable and accordingly the ladies involved should have their handicaps suspended.

7. The plaintiffs pleaded that as a result of their suspension, they are not eligible to compete in or enter any golf event which requires a CONGU handicap as a condition of entry and in the premises for all intents and purposes the plaintiffs are barred from playing golf for a period of eighteen (18) months.

8. The plaintiffs pleaded that that the decision to suspend them was actuated by malice, bias, improper and ulterior as particularized under paragraph 21 of the plaint.

9. The plaintiffs further pleaded that by a notice dated 20th July 2009, the 3rd defendant notified the Unions members joint Honorary Secretaries to convene a special extra ordinary general meeting (EGM) within seven days and sought for a stay of suspension as their appeal had very high chances of success.

10. The plaintiffs aver that the Special EGM took place as scheduled at Karen Golf Club and the plaintiffs stated that predictably the Special EGM upheld the decision by the Council to suspend them.

11. The plaintiffs pleaded that the said decision of the Special EGM is similarly biased, malicious, illegal and nullity ab nitio and should be quashed and the same particulars of malice and illegality were particularized under paragraph 26.

12. Upon service of summons, the defendants entered appearance and filed their statement of defence on 23rd August, 2019, to refute the plaintiffs’ claim.

13. At the hearing of the suit, both the plaintiffs and the defendants each called one (1) witness to testify in support of their case.

14. Rachael Christine Koigi (PW1) adopted his signed witness statement as evidence and stated that he teaches Spanish at The United States International University and Strathmore University and lives in Karen and that she wishes to produce the documents dated 21st January 2019 as bundle PEXH 1-13.

15. The witness testified that to date the suspension has not been lifted but there is an order of the court to stay the suspension and her colleagues and herself were ridiculed as the newspaper published of their three years of suspension which was not fair as they were only trying to raise funds for the tournaments which was regarded as gross misconduct.

16. In cross-examination, the witness stated that the ladies members and players did not accept the decision of the Lady chair to put off the tournament as there was need to carry out consultation and that the Union was not justified to take disciplinary action.

17. In re-examination, the witness stated that there were allegations on misappropriation of funds raised and that the letter of suspension did not allege that the reason was misappropriation of funds and that the decision was that of the chairman and not the executive committee.

18. For the defence, Sarah Muthoni Njoroge (DW1) adopted her witness statement dated 21st August 2021 and also filed a list of defence documents dated 23rd August 2019 and produced as DEXH 1-12. She testified that she is the current chairlady of the Kenya Ladies Golf Union (KLGU).

19. In cross examination, the DW1 testified that the plaintiffs acted contrary to the Union’s constitution as it is only the Union which can organize for such a tournament and that the plaintiffs had no mandate to organize a tournament to be held outside Kenya.

20. She stated that the plaintiff and her friends approached many people for funding and that the list was never availed to them however they were given a letter demanding that they stop soliciting funds as they were given a chance for hearing.

21. She further stated that KLGU issues the handicap and it can take away as there is a disciplinary committee which can suspend a handicap and that proper procedure were not followed but the suspension was ratified.

22. The witness testified that KLGU is bound by the rules of natural justice and there was no financial loss on the part of the plaintiffs and that the suspension did not taint the plaintiffs’ image hence she is not entitled to damages.

23. At the close of the hearing, this court invited the parties to file and exchange written submissions.

24. In its submissions, the plaintiffs gave brief facts of the matter and identified five issues for determination to be as follows:a)Whether the defendants’ Union decision making organ rightfully and lawfully exercised its power and authority to arrive at the decision not to participate in the G & P tournament in Harare in 2009 based solely on genuine financial constrains on the part of the defendant Union?b)Whether the Plaintiffs’ unlawfully and unprocedural usurped powers that are exclusively reserved for the defendant Union.c)Whether the plaintiff’s engaged in criminal acts by illegally fundraising and obtaining money from sponsors under the false pretext and premises that the funds were being utilized in the G & P Tournament when such action had not been sanctioned by the Defendant Union?d)Whether the meeting held among the parties on 22nd June,2008 was a reconciliation meeting or a show Cause hearing for the plaintiffs to show why disciplinary action should not be taken against them for flagrantly disregarding the executive decision of the defendant union and engaging in unlawful actions.e)Whether this Honourable Court has jurisdiction to hear and determine this matter?

25. On the first issue, the plaintiffs submitted that the decision for the cancellation was not right and thus unlawful for the simple reason that it is the Lady chair who cancelled the event and not the executive council as provided for in the Kenya Ladies Golf Union Constitution and that the reasons given for the cancellation for the participation in the tournament were not genuine.

26. On the second issue, it is the plaintiff’s contention that the defendants during the hearing had admitted not having any proof in support of their allegations that they constituted a committee without authority of the Union, however the allegations are mere fabrications of lies with a view of damaging the plaintiff’s reputation and that they did not in any way act ultra vires.

27. On the third issue, the plaintiffs pointed out that no written or oral complaint or charges were or have at any time been presented to the plaintiffs’ Union to facilitate preparation of a defence or answer and that when there was postponement of the tournament for Kenya, the monies that the plaintiffs’ had raised were refunded to everyone who had contributed and that demonstrates good faith in raising the funds for a noble objective.

28. On the fourth issue, it is the plaintiffs’ submissions that the disciplinary decisions should not be lightly reached at as they affect not only the social standing of the plaintiffs’ but also their livelihood and they were thus condemned unheard contrary to the rules of natural justice.

29. On whether the decision to suspend the plaintiffs’ handicaps was substantively and procedurally proper, just and fair constituted, the plaintiffs’ contend that their right to be heard was violated as they were not given appropriate notice in order to enable them adequately prepare their case.

30. The plaintiffs pointed out that the Kenya Ladies Golf Constitution and Rules set out the quorum of any meeting of the executive council at six but unfortunately the meeting held on 22nd June 2009 had only three members of the executive council were present and had no power to conduct disciplinary proceedings or order suspensions of the plaintiffs. The plaintiffs’ placed emphasis in the case of Patel and Others v Dhanji & Others (1975) EACA 301 it was ordered that:“held that the courts will entertain suits by members of societies or clubs for improper expulsion or violation of the principle of natural justice based on the members’ rights in property, but the courts should be slow to interfere in the running of club affairs, the remedy being in the hands of the members.”

31. The plaintiffs therefore submit that the purported disciplinary process was flawed and consequently null and void as it was conducted in violation of Article 27 of the Constitution, the rules of natural justice and the Club’s own Constitution.

32. On the fifth issue, the plaintiffs submitted that this honourable court has exclusive jurisdiction to hear this matter as provided for under article 23 of the Constitution which grants this court authority to uphold and enforce the Bill of Right in the following terms:“23 (1) The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.”

33. They further relied on the case of Samuel Kamau Macharia v Kenya Commercial Bank and two Others, civ application No.2 of 2011 .The Supreme Court of Kenya had the following to say with regard to jurisdiction:“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.We agree with Counsel for the first and second Respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This court dealt with the question of jurisdiction extensively in the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application No. 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”

34. On the issue of damages, the plaintiffs submitted that the wheels of justice tilt in their favour and consequently require that the prayers sought in the plaint awarded and general damages to the tune of Kshs.2,000,000/= be awarded for the humiliation meted to the plaintiffs’.

35. In reply, the defendants argue that due process was followed in the meeting out disciplinary action against the plaintiffs for their bustling breaches of the defendant constitution.

36. On whether this court has jurisdiction to determine this matter, the defendants submitted that the plaintiffs principally seek the prerogative writ of certiorari from this court to remove to this court the defendant’s decision dated 22nd June 2009 for purposes of having it quashed and that to that extend the suit before this court is incompetent and is fatally defective and ought to be struck out with costs.

37. The defendants contend that it has been decided by this Honourable Court that the court in exercise of its judicial review jurisdiction exercises a sui generis jurisdiction that is neither civil nor criminal. On this defendant has relied on the case Commissioner of Lands v Kunste Hotel Limited, [1997]eKLR this is what the court of Appeal stated“Neither the Government Lands Act, the Government Proceedings Act, nor The Civil Procedure Act, and Rules made thereunder, have a definition of the term "action". The term is defined under S.3 of the Interpretation and General Provisions Act, Cap 2 Laws of Kenya, thus:"...means any Civil proceedings in a Court and includes any suit as defined in section 2 of the Civil Procedure Act."That definition without more does not tell us much. However, when looked at together with the provisions of S.8 of the Law Reform Act, Cap 26 Laws of Kenya, we are able to discern that an application for an Order of Certiorari or any of the prerogative orders is not an action. S.8(1), of that Act provides as follows:"8(1) The High Court shall not, whether in the exercise of its Civil or Criminal jurisdiction, issue any of the prerogative Writs of Mandamus, prohibition or Certiorari."

38. The defendant further relied on the case of Republic v Funyula Land Disputes Tribunal & 3 Others [2014] eKLR where it was stated that:“For purposes of arguments, it is trite law that this Court is barred under section 8 (1) of the Law Reform Act cap 26 Laws of Kenya from issuing orders of mandamus, prohibition or certiorari in exercise of its civil or criminal jurisdiction. Hence this Court lacks the necessary jurisdiction to grant the orders sought in the motion”

39. On whether due process was adhered to, the defendants submitted that even if the court were to find that it has jurisdiction to entertain the plaintiffs’ claim for an order to quash the defendants decision dated 22nd June 2009, the evidence abundantly demonstrates that the plaintiffs were accorded a fair hearing.

40. On the doctrine of exhaustion, the defendants submitted that the plaintiffs came to this court prematurely and that the defendant constitution provides a clear dispute resolution mechanism including a right to appeal that is available to all members but the plaintiffs did not invoke any of those provisions but run to this court and obtained ex parte orders which they have enjoyed for over twelve years to the detriment of the defendant since 26th May 2010 to date.

41. On the issue of damages, the defendants submitted that the plaintiffs claimed for general damages of Kshs.2,000,000/= is misconceived and that they cannot seek compensation in respect of their own egregious violation and contravention of the defendant’s constitution, that it has been ably demonstrated that their suit is fatally defective which ought to be dismissed with costs.

42. I have considered the evidence tendered alongside the rival submissions and authorities relied upon. The following are the issues arising for determination:a)Whether this court has jurisdiction to hear and determine this matter?b)Whether the plaintiffs exhausted all the avenues that the defendants Union had provided in its Constitution before approaching this court.c)Whether due process was followed by the Defendant’s Union in decision making concerning the plaintiffs’ issues.d)Whether the plaintiffs are entitled to the damages sought of?

43. On the first issue, the plaintiffs in its plaint dated 31st August 2009, sought several prayers including an order to quash the defendants’ decision to suspend the plaintiffs contained in the Notice dated 29th June, 2009.

44. The plaintiffs submitted that this honourable court has exclusive jurisdiction to hear the matter as provided for under Article 23 of the constitution which grants this court authority to uphold and enforce the Bill of Rights.

45. After analyzing the material placed before me, I agree with the defendants’ position that the suit before this honourable court is incompetent since the plaintiffs principally seek the prerogative writ of certiorari form this court, and that the court in exercise of its judicial review jurisdiction exercises a sui generis jurisdiction that is neither civil nor criminal.

46. The defendant went further and submitted that plaintiffs ought to have invoked this special jurisdiction of the court to enable it issue the prerogative writ sought and that seeking the orders under the civil jurisdiction of this honourable court is fatally defective and the suit ought to fail.

47. In the Supreme Court case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [supra] eKLR para 68, the court observed thus:“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”

48. On the second issue, according to the defendants, the plaintiffs came to this court prematurely as the defendants constitution provides a clear dispute resolution mechanism including a right to appeal.

49. The defendant Union has in place an elaborate dispute resolution mechanism and by laws titled Disciplinary and Appeal Procedures which spells out how a disciplinary committee shall be constitute, the manner of conduct of its proceedings, its jurisdiction, procedure, the penalties and appeals.

50. That the defendant suspended the plaintiffs handicap in exercise of its power under clause 5 of the By-laws. The defendants Constitution also provides under Clause 6 as follows:“any respondent wishing to appeal against a decision of or penalty imposed by the Disciplinary Committee under the disciplinary procedure in Rule 3 above, shall lodge an appeal in writing setting out the grounds of its /her appeal with the honorary joint secretary within 14 days of the date of the letter of notification of the decision by the Disciplinary Committee or in the case of explusion of the Council.”

51. The defendant constitution further provides at Clause 8 of the Bye LawsIf either party wishes to contest the decision of such Discplinary Appeal Committee, then it shall be referred for Arbitration to an arbitrator to be appointed by KG. The decision of the Arbitrator shall be final and binding on the parties.

52. The above provisions are a clear demonstration that the defendant have elaborate internal disputes resolution mechanism which the plaintiffs refused to submit to.

53. In the case of International Centre for Policy and Conflict & 5 Others v. Attorney General and 4 OthersPetition No. 552 of 2012; [2013] eKLR where the Court held:“Where there exist sufficient and adequate mechanisms to deal with a specific issue or dispute by other designated constitutional organs, the jurisdiction of the court should not be invoked until such mechanisms have been exhausted…. Where the Constitution and or statute establishes a dispute resolution procedure, then that procedure must be used.”

54. Upon considering the evidence before this court from both ends, it is my view that that the plaintiffs did not exhaust the dispute resolution mechanism and prematurely ran to court.

55. On the third issue, the plaintiffs submitted that the defendants ’action violated the right to due process and natural justice in the manner in which they conducted the disciplinary process against the plaintiffs as they were not accorded a chance to be heard as per the Kenya Ladies Golfers Union Constitution before the said decision for suspension was made.

56. On the other hand the defendants state that they had on several occasions invited the plaintiffs with a view to according them an opportunity to be heard before taking disciplinary action against them, this is a clear indication that the plaintiffs were duly accorded their right to be heard and natural justice was duly observed.

57. The plaintiffs aver that the letter sent to the plaintiffs’ had not been indicated reasons for the suspension, whether it was for misappropriation of funds as the disciplinary process was flawed and violated the rules of natural justice.

58. The court, inPinnacle Projects Limited vs. Presbyterian Church of East Africa, Ngong Parish & another [2018] eKLR, had the following to say on Article 50 with respect to fair trial principles in civil cases:“While the wording of Article 50 of the Constitution on the right to a fair hearing prima facie seems to focus on criminal trials it’s not lost that fair trial in civil cases includes: the right of access to a court, the right to be heard by a competent independent and impartial tribunal, the right to equality of arms, the right to adduce and challenge evidence, the right to legal representation, the right to be informed of the claim in advance before the suit is filed, the right to a public hearing, and the right to be heard within a reasonable time.”

59. In the present case, I find that the plaintiffs were given an opportunity by the defendants’ Union to defend themselves thus further to that the Union accorded them their right to be heard and natural justice was duly observed.

60. On the fourth issue, as to whether the plaintiffs are entitled to the reliefs sought, in my view, they are not entitled, because it is apparent that the plaintiffs did not establish that the defendants violated the union’s constitution nor did they (plaintiffs) demonstrate that their reputation had been dented.

61. The plaintiffs’ suit is therefore found to be without merit. The same is dismissed with costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 8TH DAY OF JULY, 2022. ..............................J. K. SERGONJUDGEIn the presence of:....................... for the Plaintiff...................... for the Defendant