[2023] KESDT 647 (KLR)

Owiti v Veterinary Laboratory Sports Club (Tribunal Case E013 of 2023) [2023] KESDT 647 (KLR) (Civ) (7 November 2023) (Decision)

Neutral citation: [2023] KESDT 647 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Civil

Tribunal Case E013 of 2023

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

November 7, 2023

Between

Robinson Makhotsa Owiti

Applicant

and

Veterinary Laboratory Sports Club

Respondent

Decision

A. Introduction i. Parties 1. The Applicant is a male adult of presumed sound mind, a professional golfer under the Professional Golfers of Kenya (PGK) and member of VETLAB with membership number O.054.

2. The Respondent is Veterinary Laboratory Sports Club or commonly known as VETLAB (hereinafter referred to as the Respondent) and widely revered as a Golf club and has been in existence since 1923.

ii. Factual Background 1. Upon reading the Certificate of Urgency, Notice of Motion, the Supporting Affidavit of Robinson Makhotsa Owiti and all documents filed by the Applicant dated 25th April 2023 presented to the Tribunal by Amalemba & Associates on 25th April 2023, on behalf of the Applicant, the Tribunal directed in the order dated 26th April 2023, as follows:i.The Application shall be served on the Respondent by 5:00pm on Friday 28th April 2023;ii.The matter will be listed for mention for further directions on Tuesday 2nd May 2023 at 2:30 pm virtually;iii.The panel constituted to hear this matter shall be:a.Njeri Onyango (Mrs.)- Panel Chair;b.Allan Mola Owinyi - Memberc.Mary N Kimani - Member

2. The matter came up for mention on 9th May 2023 where Mr. Njenga holding brief for Mr. Amalemba appeared for the Applicant. Ms. Amamu Chitechi appeared for the respondent at 2:47 pm. The Applicant prayed for the Tribunal to grant orders 2 and 3 pending hearing and determination of the matter. The Respondent was yet to file a response and serve it on the relevant parties. The Tribunal directed and gave orders as follows:i.The matter be listed for further mention on the 23rd of May 2023. ii.The Tribunal grant orders for the 2nd and 3rd orders.iii.The Respondent be directed to file a response and if it wishes to ask for an early date may address the Tribunal by letter and explain the reasons why.iv.The parties may move to extract the orders from the Secretariat.

3. The matter was mentioned on 23rd May 2023. The Respondent had filed a response dated 10th of May and the Applicant had been served with the same. The panel for the hearing had been constituted. The matter was set for virtual hearing on 7th June 2023, parties are instructed to have their witnesses available and to file their witness’ affidavits. The interim orders are extended.

4. On 7th June 2023 the matter came up for hearing, Mr. Njenga requested for adjournment to file and serve two witness statements and a further affidavit by the Claimant citing that one witness had not been available. Ms. Chitechi had an objection stating that there were directions by Chair and that the Respondent had filed responses and that the Claimant had no courtesy to inform in advance of the adjournment. The Tribunal adjourned the matter to 19th June 2023 2:30p.m and the Claimant ordered to file and serve witness statements and affidavit by 12th June 2023 while the Respondent was granted liberty to file any response within 3 days of service. Parties to avail all their witnesses at the hearing and costs for the day given to the Respondent. The previous interim orders were extended.

5. On 19th June 2023 with both parties present the matter came up for hearing with both parties ready to proceed. The Claimant was sworn in and testified. On 25th July 2023 the Claimant’s second witness Mr. Peter Ekai testified as a Caddy at VETLAB.

6. The Respondent proceeded with two witnesses with Ebil Omollo who testified on the 25th July 2023 and Mr. Vincent Landa on the 9th and 11th of August 2023.

7. On the 12th September 2023 the matter came up for mention to confirm compliance with filing submissions. Mr. Njenga who appeared for the Claimant stated that he had filed submissions. Ms. Mbesi who was holding brief for Ms. Chitechi requested 7 days to file submissions, with no objection and thus granted the 7 days by the Tribunal and the matter be mentioned on 19th September 2023.

B. Hearing i. The Claimant’s Testimony 8. The Claimant was sworn and testified that he is a golf professional who plays and teaches golf.

9. The Claimant testified that on 20th December 2022 he participated in a friendly golf tournament, a one-day event among pros and amateurs.

10. He stated that it was a 36-hole event. When he teed off at No. 15, which was a par 4 hole, he lost his ball that went out of bounds. He played a second ball/ provisional ball. He then got a 5 with 2nd ball, after asking for a relief after finding the ball. His marker Mr. Ebill Omollo was present. After finishing the round of golf, the marker checked and signed the card and they handed the cards in.

11. He testified that no one raised any questions before signing the cards nor called any referee to solve any dispute or rather there was no dispute at all regarding the scorecards. He also stated that there was no competition committee of the tournament day.

12. He averred that his marker was Mr. Ebill Omollo. Mr. Makokha was in his flight. He stated that Mr. Simwa who was not in his flight is one person who raised an issue about his alleged infraction on hole no. 15.

13. He stated that he was later informed of disqualification but was not fully informed of the rule that led to his disqualification, as his marker had not raised any issue. The tournament was not a Club tournament but a golf Professionals and low Handicapped players Stroke play 36 holes match sponsored by some members of the club, and it was the golf administrator who gave him the information.

14. He avers that when disqualification happened there was a delay and they let the presentation go on as sponsors were travelling and he was informed that the matter was reported to the captain.

15. On cross examination he averred that hole 15 was a Par 4 and the 1st ball was a pro V1 black 6 and went out of bounds and that he played a Titleist 3 black as his provisional ball. He confirmed that the 1st ball went out of bounds, the 2nd ball Titleist 3 black was found and he was given relief by his marker, he played and got a 5.

16. He stated that he was disqualified by the golf administrator and did not go to the Golf Committee and he further avers that the marker should also have been disqualified but the award ceremony proceeded with the disqualification raised. He saw the issues later on social media.

17. The disqualification did not show under which rule.

18. He avers that he wrote a letter dated 17th February 2023 which was admitted by consent and referred to as Annexure “R.M.O 1” titled complaint on wrongful disqualification on Pro/AM tournament held on 20th December 2022 and did not get any response until he received a letter inviting him to a disciplinary hearing. He further stated that he was not granted any chance to produce evidence or call witnesses.

19. He stated that he got a suspension letter from the captain which affected his livelihood as he depends on golf and that he lost sponsors as well as his coaching duties.

20. He further states that the Chairman of Professional Golfers Association received his letter of suspension prompting his suspension from golf with no proper procedures being taken.

21. He stated that during the disciplinary hearing he asked for his original scorecard but it was never produced despite the local rule that scorecards with disputes were to be kept until resolution of any issues.

22. He stated that he wanted his golf handicap to be reinstated and his suspension from the golf course to be lifted or otherwise he be reinstated fully to his club duties and privileges as per his application dated 25th April 2023.

23. The matter was to be further heard on 28th June 2023. ii.The Applicant’s Witness -Peter Ekai

24. He was called to testify on the 25th July 2023 virtually and was sworn in his preferred language, Kiswahili.25. He testified that he was a Caddy at VETLAB the Respondent herein and that he was the applicant’s caddy on the 20th December 2022. 26. He stated that the Applicant played 18 holes then proceeded to the next 18 holes. On hole No 15 the Applicant played his 1st ball went out of bounds. He said that he gave the Applicant another Titleist 3 black which hit branches and they went to look for the 2nd ball.27. He further states that they called Mr. Omollo after finding the second ball, who allowed a relief/ free drop and the applicant played a birdie. This meant that with a 2-stroke penalty the Applicant made 5 on that hole and they played the remaining 3 holes.28. On being questioned about whether anyone complained about the hole before they left, he stated that no one including the marker complained and that they finished and he was paid and went home and only learnt of the complaints the next day at the club.29. He adopted his written witness statement dated 9th June 2023 and wished that the same be adopt as evidence in chief by the Tribunal.30. On cross examination by Ms. Chitechi on which ball was played 1st, he stated that Titleist ProV1 No.6 black which went out bounds and then the 2nd was Titleist ProV1 No.3 black.31. He averred that Mr. Omollo found the ball near a young tree. He stated that the applicant played as required at hole 15 and that no statement was taken from him by anyone else.

iii. The Respondent’s Witness - Ebill Omollo 32. The witness was sworn in English and stated that he played professional golf and adopted his written witness statement dated 15th June 2023.

33. He testified that after the Applicant teed off twice and being unsure of where the balls were, he asked the Applicant to play a 3rd ball and that the Applicant went outside the course and picked up a golf ball he claimed was a pinnacle and joined them in search of his ball.

34. He further stated that after a while the applicant claimed to have found the ball and asked his caddy to pick and confirm if its theirs. The ball was Titleist 3 black which we said it was not the 1st ball.

35. The Applicant claimed a relief which was given by his marker, after identifying ball, he chipped it near the green and holed the ball to make a 5.

36. He stated that Titleist 3 was announced, there was no query on the scorecard and that they got a 3 with the 2nd ball.

37. He further reiterated that they realized an anomaly after and that Mr. Robert Odero is the one who raised the complaint. He states that he is not aware if Mr. Odero is a witness and that he wrote the complaint to the Golf Administration office to the captain.

38. He stated that the competition was sponsored by Charles Muteshi and was not a friendly between pros and amateurs.

39. On being questioned whether there were terms and conditions of the Competition under rules of golf, he responded that they were there but he was not given and was not aware of any produced. 40. He further reiterated that he wrote a complaint dated 20th December 2022 which he raised on his own but it was not in the bundles of document produced.

iv. The Respondent’s Witness - Vincent Landa 41. The witness was sworn and adopted his witness statement with the attached documents as evidence in chief.

42. He testified that he had authority to represent the Club as the Golf Vice Captain and Chair of the Golf Disciplinary Committee of VETLAB.

43. He stated that he knew the case and knew the claimant and that he relied on his affidavit of 10th May 2023. He knew that the case involved an infringement on hole number 15 during a golf event. There was a complaint by Ebill Omollo that the complainant had cheated on the golf course.

44. He averred that they looked for the witnesses involved in the matter. Makokha, Ebill and Robert were involved.

45. He stated that the complainant was invited to explain his position and that a show cause letter was issued to him. The Golf admin had been away for a long period hence the delay in the case.

46. On 16th February 2023 the witness recorded statements and Claimant did not record and refused to sign. He then sent a letter with a complaint on 19th February 2023, about the disqualification.

47. He stated that there was a hearing on 22nd February 2023 and that the claimant was given a fair hearing. The committee was constituted of 5 members.

48. The golf committee concluded that the complainant cheated, and that a letter was sent to the complainant confirming the decision. The letter was of 3rd April 2023. The complainant never appeared for any appeal hearing. The appeal process is available. He did not exhaust all the mechanism available for resolution of the case.

49. He stated that the complainant ought to seek for appeal from the club and that the case should be dismissed.

50. He stated that in the letter, the complainant was “a player” and that they received two complaints.

51. He further stated that Mr. Omollo and Mr. Odero’s statements were part of the investigation and the witnesses did not testify before the Committee and they were not examined by Mr. Owiti.

52. He averred that there were minutes of the proceedings of the meeting held on 23rd February 2023 recorded. There was no dispute on the scorecard.

53. He stated that the marker realized infringement after the fact and that the dispute had ended at No. 15.

54. On 11th August 2023 he further testified that there were statements taken earlier on but signed on the 16th February 2023. The witnesses were called without the Applicant present.

55. He averred that on 23rd February 2023 the Disciplinary Committee arrived at a decision and stated that the Applicant had been present on the 22nd February 2023 and requested for the scorecard among other things not required.

56. On cross-examination, Mr. Landa could not confirm that he had any written authority from the Club to represent it. He also confirmed that the complainant wasn’t in the meeting of 16th February 2023 as the meeting wasn’t for him.

57. He stated that they collected reports from Ebill Omollo and Robert Odero and that Ekai did not sign his statement.

58. He stated that the complainant was sent a letter, but could not confirm if it was a copy of the complaint. He did not confirm who made the complaint.

59. He was aware that Nelson Simwa had been mentioned despite the fact that he wasn’t in the complainant’s flight. The statements collected were for the committee, and non-players accounts were considered.

60. The score card was never produced and neither were the minutes from the meeting of the 23rd February 2023 and the terms of conditions of play of the tournament of 20th December 2022.

61. He stated that the club gave him authority to represent them in this case and that all the documents produced came from the club

C. Parties’ Submissions i. The Applicant’s Submissions 62. The Applicant in his application seeks the following prayers;a.Spentb.That pending the hearing and determination of this Application inter-partes, an Interlocutory Order of Injunction be hereby issued restraining the Respondent, either by themselves, servants, agents and/or employees from effecting the suspension of the Applicant’s golf handicap and also effecting the suspension of the Applicant from the golf course and other club facilities.c.That pending the hearing and determination of this Application inter-partes, the suspension of the Applicant’s golf handicap and suspension from the golf course and facilities of the Respondent dated 31st March 2023 be lifted and the golf handicap be reinstated.d.That pending the hearing and determination of this Application inter-partes, the Respondent be barred from communicating to other golf clubs, golf regulatory organizations and other sports bodies the impugned suspension of the Applicant dated 31st March 2023. e.That a permanent Order of Injunction be hereby issued restraining the Respondent, either by themselves, servants, agents and/or employees from effecting the suspension of the Applicant’s golf handicap and also effecting the suspension of the Applicant from the golf course and other club facilities.f.That the suspension of the Applicant’s golf handicap and suspension from the golf course and facilities of the Respondent dated 31st March 2023 be lifted and the golf handicap be reinstated.g.That this Honorable court be pleased to make any such further orders and issue any other relief it may deem just to grant in the interest of justice.h.That the costs of this Application be provided for.

63. The Respondent on the 31st of March 2023 through its Golf Captain suspended the Applicant from its facilities for a period of 6 months from the said date and they have also further suspended his golf handicap and he therefore is unable to participate in any golf activities.

64. The Applicant’s suspension stems from an alleged complaint by a player in a match that involved the Applicant on the 20th December 2022 (and hereinafter the disputed match). The Applicant lodged his complaint in regards to his irregular and illegal disqualification from the said match of 20th December 2022 and it is after his complaint that he was notified of an alleged complaint against him in the same match. This culminated in proceedings conducted by the Respondent’s Golf Disciplinary Committee on the 22nd February 2023 (and hereinafter the impugned proceedings). The Applicant has never been notified whom the complainant in the said match is and he has now been suspended in regards to the same having only been invited to a purported disciplinary sitting on the 23rd of February 2023 and without being allowed to impeach any alleged evidence against him. The Applicant further gave evidence to the Respondent’s disciplinary committee that one of his team members in the disputed match was coached on what to say against the Applicant in order to implicate him in the offence alleged against him and this evidence was clearly disregarded. His original score card was also not presented to show whether a dispute was lodged against it by his marker in the disputed match.

65. The purported suspension from the golf course and the golf handicap of the Applicant has put him at a great disadvantage as he cannot participate in golf tournaments whose winnings form part of his livelihood and he can also not teach students who pay him fees to do so and therefore the illegal and irregular suspension was reached at without according the Applicant a fair trial at all. He has never been issued a copy of the decision of the disciplinary committee sitting against him on the 23rd February 2023 rendering impossible an appeal through the Respondent’s board and he was only issued with a copy of the minutes of the said sitting on the 17th April 2023 which minutes do not capture the entirety of the proceedings of the 22nd February 2023.

66. It is against this background that the Applicant seeks the urgent orders sought herein and if the same are not issued the object of this Application will be rendered nugatory and the Applicant will have been condemned unheard by the Respondent. Further, the impugned suspension exposes the Applicant to reputational damage as a reputed golf professional and also impedes his ability to earn a living from sponsorships and also golf lessons that he offers all due to the unfair actions of the Respondent against the Applicant.

67. The principles governing the issuance of injunctive orders are well settled in law. Order 40 of the Civil Procedure Rules, 2010 provides for injunctive reliefs. Further, section 3A of the Civil Procedure Act is also relevant in this case and states as follows; Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

68. The principles for the granting on injunctive relief are as was settled in the celebrated case of Giella vs Cassman Brown. The said case laid out the three principles which are as followsi.Is there a prima facie case.ii.Does the Complainant stand to suffer irreparable harm.iii.On which side does the balance of convenience lie.

69. The Applicant submitted that he had ably demonstrated all the above ingredients for the issuance of an injunction through testimony and documents adduced before this Honourable Court and therefore he deserves the final orders sought from this Honourable Court.

70. The Applicant submitted that it is also instructive that at the heart of this matter is the issue of a fair hearing. It was the evidence of the Respondent’s 2nd Witness, one Vincent Landa, that the Applicant was not accorded a fair hearing. He did indicate the following in his testimony;i.That the Applicant was not allowed to interact with any witnesses that the Respondent invited for the impugned proceedings as the same is not part of the Respondent’s procedure and conduct of matters before it and that both the Applicant and witnesses were heard separately;ii.That the Applicant’s score card was not presented at the impugned hearing and that it is not part of the Respondent’s procedure to request for scorecards for hearings that have disputes;iii.That the Applicant was never given a copy of the complaint against him nor informed of the specific complainant who raised the same against him and further he was never given copies of the statements of the witnesses alleged to have been heard by the Respondent’s Golf Disciplinary committee during its hearing against the Applicant on the 22nd February 2023;iv.That there was no formal hearing that was conducted before the Applicant was disqualified as a player from the match of 20th December 2022;v.That there were no written terms of competition or a competition referee for the match held on the 20th of December 2022;vi.That there was a significant and inexplicable delay in signing the witness statements relied upon by the Respondent’s Golf Disciplinary Committee as the same are alleged to have been recorded on the 20th December 2022 but signed on the 16th of February 2023 and the same were never presented in the instant proceedings;vii.That the format of the complaint against the Applicant made to the Respondent was verbal yet the letter informing the Applicant refers to an excerpt of a written complaint;viii.Further to the captioned admissions, there are also a number of glaring inconsistencies that also support the fact that the Applicant was not accorded a fair hearing by the Respondent. It was stated by the Respondent’s 2nd witness during the proceedings that the format of the complaint against the Applicant was verbal yet the letter dated 19th February 2023 seems to have quoted an excerpt of a written complaint. The full complaint has also not been presented to this Honourable Tribunal as the same has been alleged to have been made on the 20th December 2022 by the Respondent’s first witness, Ebill Omollo. It was further alleged that a verbal complaint was also made on the 20th December 2022 against the Applicant by one Robert Odero and he was never produced as a witness in these proceedings.

71. The letter addressed to the Applicant and dated 19th February 2023 in its first- and second-lines states that; ‘This is in response to your Letter of February 17th 2023. The committee has taken note of your concern.’ Prior to the letter of the 19th February 2023, the Applicant was never made aware by the Respondent or any of its committee or organs of any disputes regarding him and the impugned match and the only logical inference here is that the same was only communicated to him as a reaction to his complaint on the matter, a complaint that remains unaddressed by the Respondent to date. This lends credence to the conclusion that indeed a fair hearing was not accorded to the Applicant by the Respondent and secondly, there was a deliberate plan to suspend him from the Respondent’s facilities and also to suspend his handicap.

72. The Respondent also through its witnesses has not adduced any evidence or testimony that clearly demonstrates how the decision to disqualify the Applicant from the disputed match was reached. The 2nd Witness of the Respondent did state that the disqualification of the Applicant was awarded by the competition committee on the Howdidido Application but the Respondent’s 2nd Witness failed to disclose the names of the other two members of the alleged competition committee and only named himself. The 2nd Witness of the Respondent is also on record during the instant proceedings stating that with the assumption that the ball played by the Applicant was his second ball, there was no dispute to adjudicate over. It is instructive to note that neither the Respondent’s first nor second witnesses gave conclusive testimony or adduced conclusive evidence to controvert the Applicant's position that the disputed ball he played was his second ball having lost his first ball in the disputed match and therefore he ought not to have been disqualified or subjected to the impugned proceedings.

73. It is demonstrably clear that the Respondent failed to adhere to its own procedures as laid down in its constitution and also failed to adhere to the law in the conduct of the impugned proceedings before it and the same constitutes a significant disregard for the rules of natural justice. It therefore failed in its duty to be a fair arbiter of a dispute before it and therefore is estopped from claiming that the Applicant did not exhaust its internal dispute resolution mechanisms. This is indeed demonstrated by the fact that the correspondence communicating the decision of suspension to the Applicant did not contain any mention of an appeal process or a timeline within which such an appeal may be lodged before its relevant organs. Both witnesses of the Respondent also failed to clarify whether the disputed match was a friendly one or a competition per the rules governing the sport of golf.

74. On the matter of a fair hearing, the Respondent relied on the decision in SDT Petition no. 17 of 2015 Robinson Owiti v Kenya Golf Union [2016] eKLR, and particularly the principles stressed at paragraph 68, 69 and 70 of the said decision in regards to the strict adherence to the rules and procedures of the conduct of disciplinary proceedings by organizations such as the Respondent herein.

75. It is trite law that any organization that has its own rules and regulations as to the conduct of its members and also governing its ordinary course of business cannot ignore the application of its own rules and that any such ignorance of rules and procedure is not justifiable in any manner whatsoever. The interests of its membership can only be served by the strict adherence to such rules and regulations and every such member has a legitimate expectation of a fair hearing. We invite this Honourable court to apply the said principles as enumerated in SDT Appeal No. 9 of 2019 Ferdinand Omanyala vs Athletics Kenya [2016] eKLR at paragraph 77. In the said case the court in applying these principles further relied on Republic –vs- County Government of Mombasa Ex Parte – Outdoor Advertising Association of Kenya (2014) eKLR and stated thus:- “I have no hesitation in finding that the respondent’s decisions of the 29th May 2013 and the 8th October 2013 were made in breach of the rules of natural justice for the hearing of the affected persons and in contravention of their legitimate expectation created by the provisions of the Physical Planning Act and borne of the development approvals given by the national Roads Authority and the respondent’s predecessor upon payment of the requisite license fees. There can never be public interest in breach of the law, and the decision of the respondent is indefensible on public interest because public interest must accord to the Constitution and the law as the rule of law is one of the national values of the Constitution under Article 10 of the Constitution. Moreover, the defence of public interest ought to have been considered in a forum where in accordance with the law, the ex-parte applicant members were granted an opportunity to be heard. There cannot be public interest consistent with the rule of law in not affording a hearing to a person likely to be affected by a judicial or quasi-judicial decision.”

76. In his submissions reiterated that the Respondent in a bid to paint the Applicant as a “controversial person” adduced documents before the Honourable tribunal and the same are marked in its Replying Affidavit as Annexure VL-5. The said documents form part of the Applicant’s personal records kept with the Respondent and the same are private members' records which can only be accessed through the correct procedure. The Respondent’s 2nd Witness did not proffer an explanation as to how he came across the documents during cross-examination and we posit that the same is in violation of the Applicant’s rights to privacy. The said witness also failed to adduce any written authority to appear in the proceedings on behalf of the respondent. It is therefore clear that the same were produced to paint the Applicant negatively when considered at face value but the same documents represent prior disputes that have all been amicably resolved and therefore have no bearing in these proceedings.

77. The Applicant submitted that he has a legitimate expectation that the ends of justice will be served and that substantive justice should be the driving force in deciding this matter and we therefore humbly urge this court to allow the Application filed herein. We place reliance on the case of Shabbir Ali Jusab V Anaar Osman Gamrai & Another [2013] eKLR as decided by the Supreme Court of Kenya.

78. In conclusion the Applicant submitted that he has satisfied this Honourable Court on the legal threshold to allow his application in its entirety as prayed. He was subjected to an unfair, illegal, unjust and manifestly flawed disciplinary process by the Respondent. He prayed that the Application succeeds in its entirety and this Honourable Court does grant the prayers sought, any further orders the Honourable court may deem fit to grant and awards costs and damages to the Applicant.

ii. Respondent’s Submissions 79. The Respondent submits the following issues as the issues for determination:i.Whether the Applicant was subjected to unfair and un-procedural disciplinary processii.Whether the Claimant is entitled to the orders soughtiii.Who should bear the costs of the suit?

80. On the issue of whether the Applicant was subjected to unfair and unprocedural disciplinary process, the Respondent submits that the Applicant’s disciplinary process was procedural and in accordance with the rules of natural justice. The Applicant was disqualified from a tournament and as a result had to face a disciplinary process necessitated by a cheating incident.

81. The Respondent relies on its witness Mr. Ebill Omollo’s testimony as well as statements to support its case regarding the cheating allegations. The Respondent submits that the cheating incident was reported at the competitions committee who made the decision to disqualify the Applicant. At the point of the disqualification, the Applicant did not raise any objection as well as at the award ceremony.

82. The Respondent in its submission’s states that the disciplinary committee upon receiving the complaint of cheating scandal, invited the Applicant to a disciplinary hearing through a letter dated 19th February 2023. The letter notified the Applicant of the complaint from a member of his foursome and it went ahead to give an account of the complaint received. The Applicant appeared during the hearing and was heard and the proceedings of the meeting documented in the minutes dated 22nd February 2023. The decision was well communicated through a letter dated 31st March 2023.

83. The Respondent stated that the Applicant being dissatisfied with the decision wrote a demand letter which the Respondent through its lawyer responded to and directed the Applicant to appeal proceedings on 20th April 2023. The Applicant did not appear for the appeal and the process remains pending since the Applicant prematurely moved the court without exhausting the available internal dispute resolution mechanism. The Respondent submits that from its account, the Applicant was given a fair and procedural disciplinary process which the Applicant did not pursue to exhaustion.

84. The Respondent based its submissions on the Doctrine of Exhaustion and expounded on the same with case laws. In regard to the doctrine, the Respondent submitted that the Applicant ought to sufficiently exhaust the internal dispute resolution mechanism available to him and every member in regard which he decided not to. The Respondent put in place a procedural and fair process to address the disciplinary process and for that reason the Applicant is estopped from claiming otherwise.

85. The Respondent stated that the Applicant was not entitled to the orders he sought as he had been found guilty of golf malpractice of cheating and was rightfully subjected to a fair disciplinary process. The Respondent submits that the Applicant has not challenged the constitutionality of the bylaws and articles of association of the Respondent and has not argued the Club’s decision to suspend his membership was arbitrary, fraudulent, or collusive and to that extent he is not entitled to any of the orders sought.

86. On the issue of costs, the Respondent stated that since the Applicant’s suit is not merited and the Tribunal should while dismissing the suit, properly recoup the Respondent for the expenses incurred in defending the suit.

D. Analysis And Decision 87. 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.The official rules of Golf;iii)Whether the Applicant was subjected to unfair and un-procedural disciplinary process.

I. Whether the Tribunal has Jurisdiction 88. The Tribunal, being a creature of statute, derives its jurisdiction from the Sports Act. This position has been established by the Supreme Court in Samuel Kamau Macharia -vs- Kenya Commercial Bank Limited & 2 Others, where it was stated that:

89. ‘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.’

90. Section 58 of the Sports Act sets out the jurisdiction of this Tribunal as follows:“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.

91. Of most importance is to note that the procedures that apparently govern the Respondent’s operations have been extensively referred to in the Respondent’s Replying Affidavit and submissions, yet the allegedly relevant impugned sections by the Applicant, of the presumed Constitution/By-Laws are missing or have not been provided. This has put the Tribunal in a difficult position to interrogate the relevant documents for their accuracy. To exacerbate the situation is the seeming presumption of the Respondent that this Tribunal has judicial notice of the Constitution and By-Laws of the Respondent to which they omitted proper citation.

92. The Tribunal thus takes the position that there is no evidence as to the availability, accessibility and effectiveness or lack thereof of the internal dispute resolution process except for what is evident before it. Accordingly, the apparent challenge on jurisdiction based on the Doctrine of exhaustion cannot hold.

II. The Official Rules of Golf -R&A 93. The game of golf has a well-established tradition and Golf is largely self-regulating to help protect the integrity of the game by minimizing pressure on the rules of the game among other reasons, in upholding the purpose of the rules of the game. This is as per rule 1 of the R&A Rules of Golf.

94. The Rules of Golf define the committee as a person or a group in charge of the course or a competition which is essential to the proper playing of the game. The committee has the responsibility for a specific competition and should always act in ways that support the rules of golf. Committees are specifically guided by the official rules of golf in fulfilling the above-mentioned role. Even when a competition is not being contested, the Committee must ensure that the rules of golf can be followed by players in their own competitions through the committee procedures in general play.

95. When in charge of a competition, the committee has responsibilities before, during and after play to ensure smooth running of the competition under rules which include and are not limited to; Setting the terms of the competition, Defining the pace of play and code of conduct policies and Preparing materials for players and referees.

96. Once the competition has started, the committee is responsible for ensuring that players have the information needed to play under the rules and assist them in applying the rules including but not limited to validating all scores from the round in a stroke play competition.

97. After a competition, the duties include confirming the final results and closing the competition and dealing with any issues that arise after the competition is closed.

98. According to rule 3. 3b, scoring in stroke play, sub section 1, after each hole during a round of golf, the marker should confirm with the player the number of strokes on that hole (strokes made including penalty) and enter that score on the score card. A marker may refuse to certify a player’s hole score that the marker believes is wrong. In such a case, the committee will need to consider all available evidence and make a decision on that score. If a marker who is a player, knowingly certifies a wrong score for a hole, the marker should be disqualified under Rule 1. 2a.

99. The player equally has responsibilities to certify hole scores and return the scorecard. The player can be disqualified if he fails in his duties but there’s NO penalty if the committee finds that the players breach of Rule 3. 3b (2) was caused by the markers failure to carry out their responsibility such as failure to certify the scorecard.

100. Under Rule 20. 1c, in the absence of a referee or Competition Committee within a reasonable time to help with rules issue, the players are encouraged to help each other in applying the rules and a player should raise any rules issues with the committee before returning the scorecard. If a player believes or knows that another player has breached the rules and that such a player does not recognize or is ignoring this, the player should tell the other player, the marker, a referee or the committee promptly after the player becomes aware of this issue and no later than before the other player returns their scorecard unless it is not possible to do so. Failure to do so may lead to disqualification of the player under Rule 1. 2a if it is decided that this was serious misconduct contrary to the spirit of the game

101. According to the evidence tendered by the Applicant, when he teed off at No. 15, which was a par 4 hole, he lost his ball Titleist ProV1 No. 6 black that went out of bounds. He played a second ball/ provisional ball Titleist ProV1 No.3 black and he proceeded with it. He then got a 5 with the 2nd ball, after asking for a relief after finding the ball. He testified that the marker was present when the second ball was found and after clearing the issue of whether it was indeed the second ball, the marker granted him the requested relief and they went on to “hole out” and move to the next hole. If the marker, or for that matter any other player had any issue, the same ought to have been raised then or immediately before the signing off and submission of the players’ cards to the Golf Administrator.

102. The Applicant’s Caddy, Mr. Peter Ekai fully corroborated the Applicant’s testimony. He confirmed that they called Mr. Omollo after finding the second ball, who (Omollo) allowed a relief/ free drop and the Applicant played a birdie. On being questioned about whether anyone complained about the hole before they left, he stated that no one including the marker complained and only learnt of the complaints the next day at the club.

103. Based on the evidence tendered by the Applicant, his witness, and the Applicant’s marker who was the Respondent’s witness, there is clearly a catalogue of errors from the organization of the event to, the point of the provisional ball (Titleist 3 Black) being found, and for now, at least to the point when the competition was closed. There was no clear evidence of the Terms and Conditions of Play of the event held on the 20th December 2022. Golf is a game of Honour and Honourable golf requires the rules to be followed and the spirit of the game to be respected at all times through the rules and conditions of play.

104. According to Rule 3. 3b, after each hole is played, the marker should confirm the number of strokes taken to hole out and enter the score on the card. The marker has the responsibility to enter and certify hole scores on the scorecard. A marker may refuse to certify a player’s hole score that the marker believes is wrong, the committee will consider the available evidence and make a decision on the players score on the hole. If a marker, who is a player knowingly certifies a wrong score for a hole, the marker should be disqualified under Rule 1. 2a.

105. In this case, we have been made to understand that the dispute was somewhat resolved on Hole No. 15, no referee was called, there was no Competition Committee and the Applicant’s scorecard was checked and certified by his marker, before it was handed in to the Golf Administrator. The Applicant avers that he heard of rumours of his disqualification from social media. He then lodged his complaint with regard to his irregular and illegal disqualification from the match of 20th December 2022, and it’s after this complaint that he was notified of an alleged complaint against him in the same match, that culminated in the Golf Disciplinary Committee proceedings of 22nd February 2023. To date he has never seen his score card, which was never produced by any party during these proceedings.

106. The Tribunal also noted that the Applicant was made aware of the alleged complaint made against him via a letter dated 19th February 2023. It can be deduced that the player who made the complaint was Robert Odero. During Ebill Omollo’s testimony, he expressly states that he realized there was an anomaly after Robert Odero raised the complaint. He stated that he was not aware if Robert Odero was a witness in the matter. Robert Odero was not a witness and he never appeared before the panel. In the letter to the Applicant dated 19th February 2023, an excerpt of the complaint has been quoted. The full complaint has also not been presented to this Honourable Tribunal as the same has been alleged to have been made on the 20th December 2022 by the Applicant’s playing partners.

107. In reference to paragraph 10 of the Respondent’s Replying affidavit signed by Vincent Landa, the Applicant’s playing partners allegedly reported the incident to the Competition Committee who promptly disqualified the Applicant on the same day of the match after receiving, investigating the complaint and the scorecard. He further avers that the Applicant did not object to the complaint on the disqualification on the day of the match. We have not been made aware whether the Applicant played any part in the investigation of the complaint before he was disqualified.

108. The Panel is of the view that according to the rules of golf, and the circumstances as presented during the proceedings, it is reasonably satisfied that proper attention was not given to etiquette, courtesy, procedure and rules of the game to make sure that a fair verdict is reached before a player is disqualified for infringement of rules. A fair verdict would have entailed conduct that is just, fair, with procedural regularity and in impartial person/ body when the Applicant could have been afforded his rights under the rules of golf and by laws/Constitution of the Club. No attempt was made to reach a referee, or the captain, there is uncertainty as to whether there was a Competition Committee. There is no evidence of participation of all the parties involved in discussing the alleged infringement with the club authorities, before the Applicant was harshly disqualified from the competition.

109. The Applicant’s case is merited under this subheading.

III. Whether the Applicant was subjected to unfair and un-procedural disciplinary process 110. The Respondent in its submission stated that the decision arrived at was based on its constitution and bylaws. The Respondent however failed to furnish a copy of the club’s Constitution as well as by-laws to support their decision on suspending the Applicant. Section 4(3)(g) of Fair Administrative Actions Act states that, where an administrative action is likely to adversely affect the rights of any person, the administrator shall give the person affected by the decision the information, materials and evidence to be relied upon in making the decision before taking the administrative action.

111. The Act also provides in Section 6 that where the administrator is empowered by any written law to follow a procedure which conforms to the principles set out in Article 47 of the Constitution; the administrator may act in accordance with that different procedure. In this instance, the Tribunal is not privy to the bylaws of the Respondent and as such cannot rule on the decision solely based on the Respondent’s statements.

112. As already stated under paragraphs 90 and 91, the Tribunal reiterates that the allegedly relevant impugned sections of the presumed Constitution/By-Laws of the Respondent are missing or have not been provided. This has put the Tribunal in a difficult position to interrogate the relevant documents for their accuracy.

113. The apparent failure of the Respondent to demonstrate their arguments by failing to supply the Tribunal with lucid clear provisions of the quoted rules and procedures that were supposed to be followed by the Applicant or have been impugned by the Applicant is a gross error in procedural and substantive exercise of the law. The Tribunal thus re-affirms the position that there is no evidence as to the availability, accessibility and effectiveness or lack thereof of the internal dispute resolution process except for what is evident before it.

114. Section 4(3) of the Fair Administrative Actions Act states that, where an administrative action is likely to adversely affect the rights or fundamental freedoms of any, the administrator shall give the person affected by the decision:a.prior and adequate notice of the nature and reasons for the proposed administrative action;b.an opportunity to be heard and to make representations in that regard;c.notice of a right to a review or internal appeal against an administrative decision, where applicable;d.a statement of reasons pursuant to section 6;e.notice of the right to legal representation, where applicable;f.notice of the right to cross-examine or where applicable; org.information, materials and evidence to be relied upon in making the decision or taking the administrative action.

115. In interpreting the said provisions, the Tribunal associates itself with the position adopted by Kasanga Mulwa, J in Republic v Registrar of Companies ex-parte Githungo [2001] KLR 299, where he held that natural justice requires that persons who might be affected by administrative acts, decisions or proceedings be given adequate notice of what is proposed.

116. The Applicant on learning of his disqualification on the 20th December 2022 made complaints but to no avail and decided to let it go at the time as outlined in the minutes on his statement before the Disciplinary Committee dated 22nd February 2023. The Applicant having been faced with alleged criticism through social media lodged a complaint to the Respondent on 17th February 2023, the Committee responded to the complaint on 19th February 2023 inviting him for hearing on 22nd February 2023.

117. It is trite that a notice is a matter of procedural fairness and an important component of natural justice. The panel notes that before the Applicant’s letter to the Committee, the Committee had not taken any necessary steps or set up a hearing two months after the disqualification of the Applicant. The Disciplinary Committee did not give any adequate notice for a hearing to the Applicant after the disqualification up until his complaint letter to the Respondent.

118. The Fair Administration Act states in particular that the administrator shall give the person affected by the decision prior and adequate notice of the nature and reasons for the proposed administrative action.

119. The Tribunal relies on the case of Republic v Kenyatta University Ex parte Martha Waihuini Ndungu [2019] eKLR which stated that;there are five mandatory procedures that must be followed when performing an administrative action that has particular impact on a person or persons. These are that the affected person must be given before the decision is taken Adequate notice of the nature and purpose of the proposed administrative action, A reasonable opportunity to make representations; After the decision is taken, A clear statement of the administrative action; Adequate notice of any right of review or internal appeal; and Adequate notice of the right to request reasons.

120. Further, the Court in Republic v Kenyatta University Ex parte Martha Waihuini Ndungu further acknowledged that;“Adequate notice” means more than just informing a person that an administrative action is being proposed. The person must be given enough time to respond to the planned administrative action. The person also needs to know enough information about the proposed administrative action to be able to work out how to respond to the proposed action. They need to know the nature of the action (what is being proposed) and the purpose (why is the action being proposed).

121. Based on the legal jurisprudence adduced above, it is the Tribunal’s opinion that the decision made by the Respondent infringed the Applicant’s right to fair administrative action as the Respondent failed to give proper, adequate, and prior notice of the disqualification and the timelines within which the Applicant was informed, invited and heard do not connote to adequate notice.

122. As has already been established in the previous subheading, under Rule 20 of the R & A golf rules, involving resolving disputes during a round, specifically Rule 20. 1c states that if a referee or the committee is not available in a reasonable time to help with a rules issue, the players are encouraged to assist each other in applying the rules, and that any player should raise any rules issues with the committee before returning their scorecard. If a player knows or believes that another player has breached or might have breached the rules and that such a player is ignoring this, the player should tell the other player, the player’s marker, a referee or the committee promptly after the player becomes aware of the issue, and no later than before the other player returns their scorecard unless it is not possible to do so. If the player fails to do so, the committee may disqualify the player under Rule 1. 2a if it decides that this was serious misconduct contrary to the spirit of the game. No justifiable reason was given to this Panel by either party in this case as to why it was not possible to raise any issues contentious to the match before the score cards were returned.

123. The logical sequence of events should have seen the issue eventually reach the Competition Committee, if available, a referee, the Golf Captain, or the general Golf Committee of the Respondent, which would have then summoned all the parties involved by according them fair notice, and full disclosure of issues in question, with everyone having a right to be fairly heard, right to fair response and to fair decision. The process employed on the 20th December 2022 that allegedly led to the Applicant’s disqualification was flawed. The marker, who is now the Respondent’s witness is equally culpable and should have been disqualified as well under strict interpretation of the rules.

124. We note that there’s a large period of silence and/or delay in relation to the grievance, until the date of 17th February 2023 when the Applicant wrote to the Golf Captain on the matter of wrongful disqualification in a PRO/AM tournament held on 20th December 2022. He claimed that he had been called by the Golf Administrator after his team submitted their score cards and was informed that he had played the wrong ball on Hole No. 15. When he questioned further on what rules had been applied, he was informed that the matter had been raised to the golf committee and that he should await their decision. He had waited for two months without any communication from the Committee. He referred them to rule 3. 3b and requested to be awarded his winnings of the day. In any event, even at the point of writing this award, is there any reliable evidence that the Applicant may have deliberately or erroneously played a wrong ball? We think not.

125. On 19th February 2023 he got a letter from the Captain of the Respondent confirming that the Committee had received a complaint against him and they laid down the circumstances of the alleged breach. He was invited to appear before the Committee on 22nd February 2023 to shed more light on what happened on the 20th December 2023. On 31st March 2023 he received his suspension notice. In the letter, the Committee confirmed that it had conducted investigations and analyzed witness accounts and the Applicant’s testimony and that they were convinced that he had explicit intentions of cheating. He was banned for six months from 1st April 2023 in line with Section 12-part b of the Club’s Constitution.

126. It is well settled in Section 4(3) of Fair Administrative Actions Act that, a person has the right to be heard and make representation against the decision of an administrative body.

127. The Applicant attended the disciplinary hearing of 22nd February 2022. During the Disciplinary hearing, and according to exhibit “VL-2” the Applicant demanded all witnesses’ accounts pertaining to the case and a copy of the final results and his original scorecard to be availed. He said he did not receive any communication from the Club on the matter until he wrote to the Club. He reiterated what had transpired on Hole No. 15 according to him, and that his marker had signed his scorecard after the match without any issues. He claimed that the players who complained (Ebill Omollo and Robert Odero) had only done so, after seeing that he had done better than them on the final list. He had protested the disqualification and had been given Kshs. 10,000 by the sponsor of the day as compensation.

128. In the exhibit marked as “VL-3” it has been captured that… “the ball, Owiti claimed to have found, was a Titleist Pro V1 No. 3, his first ball, but it was only settled that it was his second ball after his marker was contested”.

129. The minutes marked as “VL-2” do not indicate whether his requests for the documents were met and there is no other player/complainant at the Disciplinary hearing as a participant. The Panel also notes that no scorecard was presented during the disciplinary hearing as well as before the Tribunal.

130. Having said so, the Tribunal is of the opinion that, the Respondent infringed the Applicant’s right to fair administrative action as well accorded in the Constitution of Kenya and Fair Administrative Actions Act. The Applicant’s case is therefore merited under this account.

131. The disciplinary hearing of 22nd February 2023 does not meet the threshold for a fair hearing. For example, as under Article 50 of the Constitution of Kenya to wit;(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, which includes 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;m.to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial;n.not to be convicted for an act or omission that at the time it was committed or omitted was not—i.an offence in Kenya; orii.a crime under international law;o.not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted;p.to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; andq.if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.

132. The Applicant’s right to a fair hearing cannot be understated and which should be before a competent, independent and impartial body. It is clear that the Applicant was not accorded proper and or sufficient notice of the hearing, he was not given access to the documents he requested during the proceedings, he was not given access to the witnesses including the right to cross examine them. The Panel is not also satisfied that the Applicant was given reference and access to the relevant Laws, By-Laws and or Constitution of the Club, that were in apparent reference during his case. Such documents were not also provided to the Panel.

133. On the disciplinary process, the chain of events leading up to the suspension of the Applicant’s handicap and his suspension from the golf course and Club facilities were as a result of contestations regarding rules of golf and Club procedures that have not been expressly quoted and proven. That being the case, the disciplinary process is consequently null and void and is so declared. The decision to suspend the Applicant which emanated from flawed and unlawful processes cannot be allowed to stand and is hereby quashed.

134. As for reliefs, in order for the ends of justice to be met, we consider the appropriate relief in the circumstances of this case is to restore the Applicant to the situation he was in prior to the suspension. Consequently, the following orders are made;I.That the decision imposed by the Respondents on the 31st March 2023 suspending the Applicant’s golf handicap and suspension from the golf course and facilities of the Respondent is declared null and void as it infringed and violated the rules of Fair Administrative Action.II.That the suspension of the Applicant’s golf handicap and suspension from the golf course and other facilities of the Respondent be and are hereby permanently lifted.III.Costs to be borne by the Respondent.

DATED AT NAIROBI THIS DAY OF 7TH NOVEMBER 2023. ...........................................MRS. J.NNJERI ONYANGO - PANEL CHAIRPERSON.............................................MR.ALLAN MOLA OWINYI - MEMBER............................................Ms.MARIA KIMANI - MEMBEBER............................................MRS. J NJERI ONYANGO - PANEL CHAIRPERSON