[2022] KESDT 772 (KLR)

Ogwe v Kakamega Homeboys Football Club (Tribunal Case E008 of 2022) [2022] KESDT 772 (KLR) (Civ) (4 October 2022) (Ruling)

Neutral citation: [2022] KESDT 772 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Civil

Tribunal Case E008 of 2022

J Njeri Onyango, Chair, MN Kimani & A.M Owinyi, Members

October 4, 2022

Between

Collins Saka Ogwe

Claimant

and

Kakamega Homeboys Football Club

Respondent

Ruling

DefinitionsContract” shall mean this fixed term contract of employment between the Club and the footballer.“Club or “the Club” shall mean the football club that enters into this contract“FIFA” shall mean the Federation of International Football Association“Footballer” or “the footballer” shall mean the footballer that enters into this contract “CAF” shall mean the Confederation of African Football.“KPL” shall mean the Kenyan Premier League“FKL” shall mean Football Kenya Limited, the umbrella Football Association for the time being in Kenya.“Football Rules” shall mean the Constitution, Statutes and Rules and Regulations of the KPL, FKL CAF and/or FIFA as amended from time to time“KPL rules” shall mean the Constitution and Rules and Regulations of the Kenyan Premier League as amended from time to time“Football” shall mean the sport of association football played under the auspices of FIFA and its affiliates“period of the contract” shall mean the period recorded in the schedule of the contract “date of the termination” shall mean the date of this contract expires as recorded in the schedule to this contract“football tribunals” shall mean the disciplinary and dispute resolution tribunals and forums contemplated in the football rules.“Employment Act” shall mean the Basic conditions of the Employment Act, (Act No. 11 of 2007) Laws of Kenya as amended from time to time.“Labour Act” shall mean the Labour Relation Act, (Act. No 14 of 2007) Laws of Kenya as amended from time to time

Applicable Statutes/lawi.The FIFA Regulations on the Status and Transfer of Playersii.The Constitution of Kenya 2010iii.The Employment Act Cap 226 Laws of Kenya iv. Sports Act 2013v.The Constitution of Football Kenya Federation (2017)

Parties 1. The Claimant is described as an adult of sound mind residing and working for gain in Kenya. He is a professional football player (hereinafter the Claimant.)

2. The Respondent is a football club (hereinafter the Respondent) established in the Republic of Kenya and recognized under the provisions of the Sports Act 2013 which is also affiliated to the Football Kenya Federation (FKF)

Jurisdiction 3. The Sports Disputes Tribunal jurisdiction has been invoked by the Claimant under the provisions of Sections 58 and 59 of the Sports Act No 25 of 2013 which provides as follows: -“The Tribunal shall determine—(a)appeals against decisions made by national sports organizations orumbrella national sports organizations, whose rules specifically allow forappeals 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.” Section 59 of the Sports Act states further that:“The Tribunal may, in determining disputes apply alternative dispute resolutionmethods for sports disputes and provide expertise and assistance regarding alternative dispute resolution to the parties to a dispute.”

Background 4. The claimant filed his Statement of Claim dated 2nd February 2022 on 8th February 2022. He also filed the following documents;i)List of documentsa.The Contract between the Claimant and the Respondentb.A copy of the letter of release dated 1st June 2018c.A copy of the claim filed with the FKF Player Status Committeed.A copy of E-mail screenshot dated 2nd October 2021e.A copy for request for Response dated21st October 2021f.Any other documents will be adduced with leave of the tribunal i) Verifying affidavit ii) Witness statement

5. The Claimant’s position is that he entered into a written employment contract with the Respondent dated 26th January 2018. It was a 2-year contract to provide professional football services as a member of the playing unit for the Respondent. The Respondent contrary to the contract unilaterally terminated the said contract by a letter dated 1st June 2018. The Respondent did not assign any reasons for such termination.

6. The matter was placed before the Chairperson of the Sports Disputes Tribunal Mr. John M. Ohaga (SC, FCIArb) who on 9th February, 2022 made the following Directions;Upon Perusalof the Statement of Claim, the Statement of Collins Saka Ogwe and allother documents as filed by Counsel for the Claimant on the 8th February 2022, the Tribunalhereby directs and orders as follows:i.The Claimant is hereby directed to serve the Respondent with the Statement of Response together with these directions within (five)5 days of receipt of these directions;ii.The Respondent to file and serve upon the Claimant its Statement of Responsewithin(fourteen) 14 days of service upon it of the Statement of Claim;iii.The Claimant to file and serve upon the Respondent his reply to the Response, if any,within (seven) 7 days of service of the Statement of Response;iv.The matter will be listed for Mention on the 15th of March 2022 at 2. 30pm via MicrosoftTeams or such other medium that the tribunal shall determine and confirm compliancewith the present directions and set a date for the hearing of the matter;v.The panel to hear the matter shall comprise of;i)Mrs J. Njeri Onyango -Presidingii)Ms. Mary N Kimani -Memberiii)Mr. Allan Mola Owinyi -Member

7. This matter was mentioned before the Tribunal on 15th March, 2022. The Tribunal being satisfied that the Respondent had been duly served with a Mention Notice for the day made further directions as followsUpon Mentionof this matter by the Tribunal on the 15th of March 2022, the Tribunal hereby directs, and orders as follows:1. The Respondent to file and serve a response within 14 days of service2. The Claimant to file and serve a response within 7 days of service thereof.3. The matter is listed for mention on 12th April, 2022 at 2. 30pm via MicrosoftTeams or any such medium as the Tribunal may so direct for further directions

8. The matter was again mentioned on 12th April 2022. Counsel for the Respondent stated that they had filed a Preliminary Objection and had received a Replying Affidavit. Counsel for the Claimant stated that as the FKF Player Status Committee was disbanded the Tribunal was the only option that remained as stated in the Replying Affidavit. To this, Counsel for the Respondent replied that it did not change the Respondent’s stand on the Preliminary Objection on Jurisdiction.

9. The tribunal ordered as follows;i.The claimant is hereby directed to serve the Respondent with the skeleton argumentswithin fourteen (14) daysii.The Respondent is hereby directed to serve the Claimant with their skeletonarguments within fourteen (14) days of being servediii) The Claimant is to file the Replying Affidavit with the Tribunal again.iv)The matter is listed for oral submissions to be made on 10th May 2022 via MicrosoftTeams or such other medium as the Tribunal may direct.

10. On 10th May 2022 the matter came up for hearing of the Preliminary Objection.Counsel for the Respondent stated that he did not wish to proceed with the Preliminary Objection. The Tribunal listed the matter for hearing on the 12th of July 2022.

11. The Claimant at the hearing elected to adopt his written Witness Statement dated 2nd February, 2022. The claimant at the hearing on 12th July 2022 was sworn in by his advocate who then proceeded with the examination in chief. The claimant chose to associate with the whole claim as filed inclusive of his claim with the FKF Players’ Status Committee emails and requests of response thereof. The matter was closed and listed for mention on the 26th of July to confirm filing of submissions.

12. The matter came up for hearing on the 3rd of August 2022. The Claimant was cross- examined by counsel for the Respondent and further Re-examined by his counsel. During the cross examination, the Claimant was put to task as to whether his contract was ever registered by FKF, whether he was part of the players and played games for the Respondent and if he was ever selected to represent the team. The Claimant confirmed that he participated with the Respondent team and that he had evidence, that he actually signed a contract with the Respondent and that he participated in preseason training which was when he got an injury. The Claimant claimed he got shocked to receive a release letter. He stated that he was treated in Kisumu, South C hospital in Nairobi but that he had no treatment documents.

13. The Claimant also denied ever writing any resignation letter to the Respondent and stated that such letter as produced was not signed by him, and that the signature on the letter was not his. The Claimant stated that he then took the matter to the Kenya Footballers Welfare Association (KEFWA).

14. On 2nd October 2021 Claimant sent a claim filed before the FKF Player Status Committee to the Respondent. On 21st October 2021, the FKF through its secretary General/ CEO wrote to the Respondent confirmed receipt of the Claimant’s request for intervention of the Player Status Committee in his case against the Respondent and sought a response from the respondent within 14 days failure to which the matter would be determined without any further response to the Respondent.

15. Counsel for the Respondent called on his witness and examined him. Counsel for the Claimant cross-examined the Respondent’s witness who was then further re- examined.

16. Upon closing of the Claimant’s case, the panel directed that the Claimant’s Counsel to file written submissions within 5 days and the Respondent was given 2 weeks. The Claimant’s submissions were filed on 1st August 2022 and the Respondent on the 15th of August 2022. The matter was set for judgement on the 20th of September 2022

The Claimant’s Case 17. By the Statement of Claim filed on 8th February 2022, the Claimant stated that on 26th January 2018, the Claimant and the Respondent entered into a written contract of employment for a period of 2 years (hereinafter “the contract”). The Claimant under the contract would provide services as a professional football player on the following basic terms;a.Period 6th January 2018 to 6th January 2020. b.Monthly salary Kshs 25,000/= per month.c.In the event of an injury while in the course of playing for the Respondent, the claimant would be entitled to proper medical attention by a specialist recommended by the Respondent.d.The parties had the option of terminating the contract by issuing a one month’s notice if;21. Termination of EmploymentNotwithstanding the fact that this is a fixed term contract, the club mayterminate this agreement by the giving of 1 (one) month’s written notice priorto its expiry if:21. 1.The footballer is found guilty of misconduct justifying dismissal21. 2.The footballer is found to be incapable of completely fulfilling the job forwhich he has been employed

18. The Claimant further stated that in the year 2018, he sustained an injury while playing for the Respondent club with full knowledge of the Respondent. That despite of the express obligation on the part of the Respondent as stated hereinabove, the Respondent failed, refused or ignored to recommend a specialist thus forcing the Claimant to incur the expenses of treatment.

19. The Claimant stated that on about the 1st of June 2018, the Respondent through its Chief Executive Officer issued a letter terminating the contract between the Claimant and the Respondent.

20. The Claimant avers that the purported termination of his contract was in breach of the terms of the contract and that the same also violated the provisions of the Employment Act 2007 and the FIFA Regulations on the Status and Transfer of Players, which govern the contracts of football players in Kenya.

21. The Claimant in his Statement of Claim particularised the breach as;i.The purported termination of contract was effected without the requisite formal Notice and also without Payment In lieu of Notice contrary to the provisions of Sections 35 and of the Employment Act 2007;ii.The purported termination of the contracts was so done without any or any just cause contrary to article 14 of the FIFA Regulations on the Status and Transfer of Players;iii)The purported termination of contracts was done during the continuance of the Kenyan Premier League Season and with a substantial part of the term of the contract still remaining to be performed contrary to Articles 13 and 16 of the FIFA Regulations on the Status and Transfer of Players which requires that a contract between a professional and a club only be terminated upon expiry of the term of the contract or by mutual agreement;iv.The purported termination was done without issuance of any warnings or explanations for the reasons of termination, contrary to the provisions of section 41 of the Employment Act 2iv.The Respondent failed to take due notice that the claimant had been injured in the course of playing for the Respondent and the Respondent further failed to compensate the claimant for the cost of treatment.iv.The Respondent failed to comply with the provisions of Articles 8, 14 and 17 of the standard form contract which defined what constituted fair procedure in instances where it is necessary to institute disciplinary processes against a player and in the process denied the Claimant any opportunity to be heard.

22. The Claimant avers that he was greatly inconvenienced by the actions of the Respondent as he was subjected to lengthy lay-offs and being unable to secure alternative employment as a professional footballer in Kenya since the FIFA Regulations on the Status and Transfer of Players barred him from making a direct switch to an alternative football club. The actions of the Respondent also had the direct effect of diminishing the expectation of better earnings for the Claimant in the future.

23. The Claimant submitted into evidence a letter dated 21st October 2021 from Football Kenya Federation’s general secretary to the chairman of Kakamega Homeboyz FC.The letter stated that the federation had received a claim from the Claimant who was requesting for the intervention of Football Kenya Federation’s Player Status Committee in a case against him and the club. The letter requested the chairman to give a response with regard to the claims raised by the Claimant within 14 days.

24. The Claimant avers that the actions of the Respondent in purporting to terminate their respective contract as it did, violated the provisions of Articles 13 and 16 of the FIFA Regulations on The Status and Transfer of Players as well as Sections 17 and 41 of the Employment Act 2007 as well as specific clauses of the Contract. The Claimant therefore avers that he is entitled to compensation for breach of contract and payment for the unexpired terms of their respective contracts as particularized in the Statement of Claim.ITEMNUMBER PARTICUL AMOUNTCLAIMED (IN KSHS)

i) Payment of one month’s salary in lieuo of notice 25,000. 00

ii) Payment of compensation being the equivalent of thetotal salaries for the uncompleted period ofthe contract 450,000. 00

iii) Damages equivalent to twelve months’ salary in viewof the fact of injury in the course of employment 300,000. 00

iv) Refund of the Medical expenses incurred fortreatment of the injury and the Physiotherapysessions , 40, 000. 00

v) Aggravated Damages 2,250,000. 00

TOTAL 3,065,000. 00

Particulars Of Compensation For Breach 24. The Claimant relied on his Advocates letter of demand which received no response from the Respondent. The Claimant thus prays for awards against the Respondent in terms of paragraphs8 and 9 of this statement as follows: -i)A declaration that the purported termination of the Claimant's Contracts by the Respondent was unfair and illegal;ii)Awards of monetary compensation to the Claimant and against the Respondent for the sum of Kenya Shillings Three Million and Sixty-Five Thousand Only (Kshs. 3,065,000/-) as particularized in Paragraph 9 of this Claim;iii)Costs of this Claim;iv)Interest on (a) and (b) at such rates as the Tribunal may decide in the event of default of payment by the Respondent; andv)Any other relief that this Honorable Tribunal deems fit to grant.

The Respondent’s Case 26. The Respondent raised a preliminary objection on the grounds that the suit is bad in law and should be struck out on grounds that;i)The Sports Tribunal lacks jurisdiction to entertain this Claim as an original Claim ii) That the Claim is one for employer/employee and the same ought to have been filed through the Labor and Employment Actiii)That the Claim is time barred by virtue of the Employment Act.

27. The Respondent stated in written submissions dated 27th August 2022 that the matter herein arises out of the contracts between themselves and the Claimant as the Claimant alleges that the same was terminated unfairly.

28. The Respondent submitted that the matter can only be heard by the Labor and Employment Relations Court as established in Article 162 of the Constitution of Kenya.

29. The Respondent further stated that the Tribunal does not have the power to hear and determine any matter directly unless the matter is agreed by the parties. There was no agreement between the parties to refer the matter to the Tribunal and that the respondent reserved the issue of jurisdiction after all the facts were on record.

30. The Respondent stated that from the evidence on record, the Claimant did not give any evidence of an agreement to refer the matter to the Tribunal and that the withdrawal of the Preliminary Objection did not amount to the agreement to refer the matter to the Tribunal.

31. The Respondent further stated that the Claim was time barred as from the evidence presented, the Claimant entered into the agreement on 6th January 2018 and the same was terminated on 1st June 2018. The Respondent averred that the Claimant did not institute these proceedings until 10th February 2022, a period of 3 years and 8 months after the termination therefore time barred by virtue of Section 901 of the Employment Act, which he came under.

32. On 3rd August 2022, Counsel for the Respondent called Mr. Ben Shitiabayi, CEO of Kakamega Homeboyz Football Club as a witness. Mr. Shitiabayi stated that the Claimant came from an academy associated with its club, that wanted to try players who could potentially play for the Respondent.

33. Mr. Shitiabayi stated that KPL Regulations only allowed for registration of 30 players and that the Claimant did not make that list. He stated that the Claimant was only on pre-contract basis and did not play any match for the Respondent. Mr. Shitiabayi had no knowledge of the Claimant’s injury and stated that the Claimant requested for a release by himself through a formal letter dated 29th May 2018 due to lack of adequate playtime thus denying himself of any compensation.

34. The witness stated that the FKF website indicated that the Claimant was a member of Young Boys FC (No. 014108) as Ogwe Saka Collins and as Collince Saka Terror Squad FC (No. 008032) as at 3rd June 2020. The fact that the Claimant was already registered as a member of the other clubs as per the Football Kenya Federation showed that he was not entitled to payment of the uncompleted period of the contract as he was gainfully employed elsewhere.

35. The witness stated that the Claimant was not a registered player with the Respondent.

36. The Respondent also produced a letter dated 26th October 2021 addressed to the League and Competitions body of FKF, within which they claim amongst other issues that the Claimant joined two other teams and that if he was indeed their player then they were supposed to benefit from the players’ development fees. They claim to have further discovered that the information that the player had given to them did not match those given to the two other clubs. These were as OGwe Saka Collins FKF O14108 for Young Boys FC and as Collince Saka FKF008032 for Terror Squad FC, with the year of birth being 03. 06. 2000.

37. The Respondent stated that the Claimant had not presented any evidence on medical expenses incurred or any treatment documents from any hospital to show that he was injured at all.

38. The Respondent further stated that the Claimant alleged that he was injured at Malava and was treated at a private hospital in Nairobi. The respondent raised the question as to why the Claimant did not seek treatment from the team doctor or at a nearer hospital.

39. The Respondent stated that the aggravated damages sought by the Claimant were not warranted and that the only damages that could have been pleaded as general damages by the Claimant were 12 months’ salary in lieu. The Claimant sought Ksh. 300,000/= in view of the injury in the course of employment.

40. The Respondent stated that injuries at work are governed by Work Injury Benefits Act where the Claim lies with the director of labor. The Respondent further stated that the only claim that would have been granted would be Kshs. 25,000/= being salary in lieu of notice.

41. The Respondent prayed that the Tribunal should find the Claim not established and dismiss it with costs.

42. Upon filing of submissions and the matter coming up for hearing of the Preliminary Objection, the Respondent’s counsel on their own motion sought to withdraw the application and have the suit determined on its merits. The Preliminary Objection was withdrawn in open court on 28th June 2022 in the presence of both counsels.

Analysis And Decision 43. Having looked at the Parties pleadings, this Panel is of the view that the causes raise the following issues for determination:i.Whether the Tribunal has jurisdiction.ii.Whether due process was followed in the Claimant’s termination. iii) What are the appropriate orders?

I. Whether the Tribunal has Jurisdiction 44. The Respondent raised a Preliminary Objection on 12th March 2022 challenging the Jurisdiction of the Tribunal.

45. It is a cliché now to state that a preliminary objection is a point of law which when taken would dispose of the suit. The Respondent's Preliminary Objection fits the definition of a preliminary objection in terms of the leading case of Mukisa BiscuitsManufacturing Co. Ltd v. West End Distributors Ltd [1969] E.A. 696. In the celebrated case Law J.A. stated a preliminary objection to be thus: -“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

46. The locus classicus on jurisdiction is the celebrated case of Owners of the Motor Vessel Lillian S” v Caltex Oil (Kenya) Ltd[1989] KLR 1 where Justice Nyarangi of the Court of Appeal (as he then was) held as follows;'I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.'

47. The Tribunal’s jurisdiction is statutory and is set out at Section 58 of the Act as follows. However, the pertinent provision is Section 58(b) which provides as follows:The Tribunal shall determine—Other sports-related disputes that all parties to the dispute agree to refer to the Tribunal and that the Tribunal agrees to hear;

48. The case of Dennis Kadito v Office of the Sports Disputes Tribunal & another [2017] eKLR was the first decision in which this Tribunal’s jurisdiction was properly tested. In that matter, the court looked at the decision of the tribunal, the sports Act and more so section 58 as a whole and section 58(b) in particular. The Tribunal in that case declines Jurisdiction for reasons which were peculiar to the circumstances of the case. The Tribunal’s decision was upheld by the High Court

49. Subsequently the Tribunal’s jurisdiction has been challenged, mostly in employment type disputes, with varying outcomes. In each case, the Tribunal has been concerned to ensure that, where it declines jurisdiction, there exists a proper and efficacious avenue for the resolution of the particular dispute. No party should ever be left without an avenue for the resolution of a genuine grievance or with an avenue that it only illusory.

50. As observed in the Denis Kadito case, the Act establishes a three-step process:

i. Is this a Sports related matter? 51. The facts and issues raised in the instant claim clearly qualify this matter as a sports related matter. The dispute relates to a football club which had contracted the Claimant to play football in his capacity as a sports athlete. To avoid belaboring this point, on that basis alone, the dispute herein qualifies as a sports dispute.

i. Have the Parties agreed to refer the dispute to the Tribunal? 52. On the 28th of June 2022, the Respondent withdrew their Preliminary Objection on their own motion and submitted that they wished, instead, to have the matter heard and determined on its merits. The Respondents, by participating fully in these proceedings must be seen as having agreed to refer the matter to the Tribunal.

iii) Has the Tribunal agreed to hear the dispute? 53. In Elly Kalekwa & 3 others v Nick Mwendwa & 6 others; Emmanuel Obiero Ochieng & 2 others (Interested Parties) [2017] eKLR; The Tribunal stated “...and having sat through these lengthy hearings, the Tribunal has obviously agreed to hear the dispute so that the jurisdictional challenge, coming as it does with the Respondents’ last breath, cannot derogate from the election made by the Respondents to accede to the matter being heard by the Tribunal....”

54. The Constitution of Kenya 2010 under the Bill of Rights at Article 50 entitles every person to fair hearing. It reads;’ Every person has the right to have any dispute thatcan be resolved by the application of law decided in a fair and public hearing beforea court or, if appropriate, another independent and impartial tribunal” Accordingly, we are persuaded that the Tribunal qualifies as an independent Arbitration Tribunal as contemplated in article 69 of the FKF Constitution 2010.

55. Article 69 of the FKF Constitution 2017 provides for Dispute Resolution as follows:1. Disputes in the Association or disputes affecting Leagues, members of Leagues, Clubs, members of Clubs, Players, Officials and other Association Officials shall not be submitted to Ordinary Courts, unless the FIFA regulations, this Constitution or binding legal provisions specifically provide for or stipulate recourse to Ordinary Courts;2. The entities mentioned in par. 1 above shall give priority to arbitration as a means of dispute resolution;3. The disputes as specified in art. 1 shall be taken to an independent Arbitration Tribunal recognized by FKF or CAF or to the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland.4. Decisions made by the FKF standing committees and the judicial bodies are final and FKF members are prohibited from taking such matters to ordinary courts. Any member found in violation of the same shall be subjected to disciplinary measures as stipulated in the disciplinary code of FKF and FIFA5. If any of the parties is dissatisfied by decisions and rulings made by any of the Standing Committees and judicial committees, such a party is at liberty to lodge an appeal with the Appeals Committee whose decision shall be final unless stipulated elsewhere in this constitution.6. The first body for Electoral disputes shall be the Independent Electoral Board. Any member unsatisfied with decisions of the Electoral board may Appeal to the FKF Appeals Committee.

56. On the basis of the above provision, the Tribunal herein is not an ordinary court; it is an arbitration avenue. Indeed, Part VII of the Sports Act which deals with establishment of the Tribunal is headed: Arbitration Of Sports Disputes’.

57. Premised on the foregoing the Tribunal finds that it is clothed with the requisite jurisdiction under Section 58(b) to hear and determine this dispute. Furthermore, due to the suspension of the Football Kenya Federation and the subsequent establishment of the FKF Caretaker (and Transition) Committee, the FKF Player Status Committee is currently inactive and thus the Tribunal has jurisdiction due to the lack of a more effective path.

II. Whether due process was followed in the Claimant’s termination 58. The Claimant produced as exhibit a contract of service dated 6th January 2018 to show he was legally contracted to the Respondent. His testimony during trial demonstrated that he was contracted to the Respondent between 6th January 2018 to 6th January 2020.

59. On 1st June 2018, the CEO of Kakamega Homeboyz Club wrote a letter referenced ‘Release Letter’ to the Claimant stating that they wished to relieve the Claimant from being their player effective immediately and wished him the best in his future endeavors. The Claimant was not given reasons for the termination/dismissal the said letter of termination doubled up as a release letter.

60. The Contract, letter of release and letter of termination annexed in the Statement of Claim and Claimant’s adopted Witness Statement is sufficient proof of there being a valid contract of employment between the Claimant and Respondent.

61. The Claimant contends that no just cause existed for the termination of his contract. In any case, the letter dated 1st June 2018 that effectively terminated the employment contract failed to outline any reason or wrongdoing on the part of the Claimant.

62. The Panel has reviewed the contract between the Claimant and the Respondent. The terms thereof in regard to the Claimant’s dismissal are clear. Clause 14. 4.1 of the Contract of Employment on Written Dismissal stipulates that,“A footballer may be dismissed or suspended with or without notice (or payment in lieu thereof) for serious misconduct on the first occurrence thereof, repeated misconduct, continued poor performance or otherwise for any misconduct in respect of which the footballer has received a written warning during the preceding 12 months.”

63. No reason for termination was ever presented to the Claimant before his termination. The Claimant was not called for any disciplinary measures before dismissal as expressly mandated under Clause 14 of the Player Contract, and which is a blatant breach of his right to fair administrative action as well as fair hearing under Articles 47 and 50 respectively of the Constitution of Kenya, 2010 and Section 41 of the Employment Act, 2007.

III. What are the appropriate orders? 64. The Claimant has sought compensation in terms of damages.i.Payment of one month’s salary in lieu of notice, which is admitted by theletter dated 1st June 2018;ii. Payment of compensation equivalent to the remaining months of thecontract.iii.Damages equivalent to 12 months’ salary;iv.Refund of the Medical Expenses incurred for treatment of the injury hesuffered before termination; andv. Aggravated damages

65. Under Section 45 of the Employment Act, 2007, unfair termination is proven when the employer is unable to prove the reason for termination, the reason for termination is fair or valid, or the termination was done according to fair procedure. It is undisputed in evidence that the Claimant was not given any reason for termination.

66. Under Section 49 (1) of the Employment Act, 2007, in calculating the damages due to an unfairly terminated employee, the court/labor officer must have due regard to, inter-alia;a.the wages which the employee would have earned had the employee been given the periodof notice to which he was entitled under this Act or his contract of service;b.where dismissal terminates the contract before the completion of any service uponwhich the employee’s wages became due, the proportion of the wage due for the period of timefor which the employee has worked; and any other loss consequent upon the dismissal and arising between the date of dismissal and the date of expiry of the period of notice referred to in paragraph (a) which the employee would have been entitled to by virtue of the contract; or c) the equivalent of a number of months’ wages or salary not exceeding twelve monthsbased on the gross monthly wage or salary of the employee at the time of dismissal.

67. The Court of Appeal has pronounced itself conclusively on the compensation of unfairly terminated employees. To wit, an unfairly terminated employee is entitled to Twelve (12) months’ salary besides any other relief the courts/statutes provide. In Kenya Broadcasting Corporation v Geoffrey Wakio [2019] eKLR the Court of Appeal found that the provision of 12 months’ salary compensation for unfair termination was reasonable and commensurate.

68. The Panel therefore considers that the Claimant is entitled to damages equivalent to Twelve (12) months’ salary in view of the unfair termination in the sum ofKenya Shillings Three Hundred Thousand Only (300,000/=).

69. Besides the compensation for unlawful termination, the Claimant is entitled to damages in lieu of notice for his termination. In the circumstances, one month’s salary in lieu of notice is sufficient as there was no notice before termination. We therefore rely on the statutory timelines for guidance. In that vein, the Claimant is entitled to Kenya Shillings Twenty-Five Thousand Only (Kshs. 25,000/=) in lieu of notice of termination.

70. Additionally, Section 49(4) offers guidelines that determine the compensation due to the employee in the event of an unfair termination. They include, among many other things, the employee's options for finding comparable or suitable work with another employer, the circumstances of the termination, including the extent, if any, to which the employee caused or contributed to it, and any severance pay, including ex gratia payments, made by the employer and received by the employee in connection with the termination.

71. The panel notes that the Claimant has not produced evidence to prove the exact amount of expenses he incurred in the course of treatment of the injury he suffered before termination.

Decision 72. For the foregoing reasons and findings, the following orders commend themselves to the Tribunal and are hereby issued,I.The Claimant is entitled to and is awarded damages equivalent to Twelve (12) months’ salary in view of the unfair termination in thesum of Kenya Shillings Three Hundred Thousand Only (300,000/=).II.The Claimant is entitled to and is awarded Kenya Shillings Twenty- Five Thousand Only (Kshs. 25,000/=) in lieu of notice of termination.III.The Claimant is awarded costs of the suit. The costs shall be agreed between the parties within 30 days from the date of this decision. In default, the same shall be taxed by the Sports Disputes Tribual.

DATED AT NAIROBI THIS 4TH DAY OF OCTOBER 2022. ...............................MRS. NJERI ONYANGO, FCIArbPANEL CHAIR................................MS. MARY KIMANI MR. ALLAN MOLAMEMBER MEMBER