[2025] KESDT 54 (KLR)

Solanki (Suing in His Capacity as Treasurer for Cricket Kenya) v Obuya & 7 others (Tribunal Case E024 of 2024) [2025] KESDT 54 (KLR) (8 May 2025) (Decision)

Neutral citation: [2025] KESDT 54 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Tribunal Case E024 of 2024

E.Sifuna-Shiveka, Chair, Gabriel Ouko & E. G. Kiplagat, Members

May 8, 2025

Between

Kalpesh Solanki

Petitioner

Suing in His Capacity as Treasurer for Cricket Kenya

and

Kennedy Otieno Obuya

1st Respondent

Peralyne Omamo

2nd Respondent

Thomas Odoyo

3rd Respondent

Beryl Oyugi

4th Respondent

Mary Maina

5th Respondent

Tariq Iqbal (Sued in their Capacity as Board Members of Cricket Kenya)

6th Respondent

Ronald Bukusi (Sued in His Capacity as CEO of Cricket Kenya)

7th Respondent

Cricket Kenya

8th Respondent

Decision

Hearing: 02/04/2025Panel: 1. Elynah Sifuna – Panel Chairperson

2. Gabriel Ouko - Member

3. E. Gichuru Kiplagat – Member

Appearances 1. The Petitioner is represented by Mr. Omari Danstan Advocate of Dastan Omari & Associates.

2. The Respondents are represented by Miss Shah Advocate of ADRA Advocates LLP Advocate.

The Parties 1. The Petitioner describes himself as the Treasurer of Cricket Kenya(CK).

2. The Respondents variously describe themselves either as board members of Cricket Kenya, CEO of Cricket Kenya or as a national sports organization registered under the Sports Act.

The Case 3. The Petitioner has approached the Tribunal vide a certificate of urgency and a motion dated 11/09/2024 with a supporting affidavit dated 11/09/2024 and a further affidavit dated 02/11/2024 as well as a statement of claim dated 20/09/2024.

4. The Petitioner claims that he has been actively involved with cricket since 1996 and that he was elected officially into the board as a Development Director in 2012 to oversee grassroots cricket within various counties in Kenya in order to promote cricket.

5. The Petitioner stated further that during the February 2022 elections he was voted in as the Treasurer to Cricket Kenya and that he served diligently until his unlawful suspension on 28/08/2024.

6. The Petitioner stated too that on 23/08/2024 he received a notice from the Cricket Kenya CEO (CK CEO) notifying him that there was a board meeting set for 28/08/2024. The email provided that the agenda for the meeting would be shared on 26/08/2024.

7. The Petitioner contends that Article 8. 4.4 (b) of the CK Constitution addresses the issue of Notice for Board Meetings and requires notice to be issued 14 days before or if there is an emergency such shorter period as the Chairperson or Vice Chairperson may determine. Furthermore, he also quoted Article 8. 4.4 (c) of the CK Constitution which provides that a Special Meeting of the Board may be called in writing within reasonable time by at least 5 members of the board. The Petitioner maintains that the provisions of the CK Constitution were not adhered to with respect to the board.

8. The Petitioner further stated that when the agenda was shared it did not have an item on his suspension and was only proposed on the floor of the session as forming part of the day’s agenda. This was utter shock to him as he found it as a trial by ambush.

9. The Petitioner also stated that the suspension was unlawful as this is the mandate of the Council and not the board as enshrined in Article 8. 3(g) of the CK Constitution. This was therefore unprocedural and due process the Petitioner avers was not afforded to him. As a matter of fact he stated further that he was removed as a signatory to the CK Account by the board which was equally unconstitutional.

10. The Petitioner also alleged that the communication by the board to suspend him was issued to members of CK and this ruined his reputation. The media he alleged also took up the story and published it further ruining his reputation.

11. The Petitioner averred that he carried out his duties faithfully and diligently and attended meetings. He claimed that his insistence that process on expending funds be followed and use of cheques instead of cash led to a backlash with the board members.

12. The Petitioner also alleged that some of the Respondents have integrity issues that have not been resolved and while he is on suspension none of the rest are. The Petitioner contended that this goes against the tenets of natural justice as the individuals who propose his suspension intend to form a committee to investigate him on the alleged irregularities in CK payments.

13. The Petitioner also refuted all claims made by the Respondents in their pleadings before the Tribunal.

14. The Petitioner prayed (for):a.That he be reinstated as Cricket Kenya Treasurer.b.That he be reinstated as a signatory of Cricket Kenya Account.c.That he be reinstated to the Cricket Expo WhatsApp group.d.An order quashing the decision of the board forming a committee to investigate the irregularities in Cricket Kenya Payments.e.A declaration that the board decision made on 28/08/2024 suspending the Claimant from his duties as Treasurer was unconstitutional as it went against the provisions of the CK Constitution.f.Costs and interests.g.Any other remedy by the Tribunal.

The Response 15. The Respondents in their response filed a response and counterclaim dated 19/11/2024. They denied each and every allegation made by the Petitioner.

16. In summary the Respondents stated that the Petitioner is still the Treasurer of Cricket Kenya but aver that he was suspended from office on 28/08/2024 by the Respondent’s Executive Board to allow for investigations into allegations of malpractice within his docket as he did not serve this role diligently and was not unlawfully suspended.

17. The Respondents argue that the Petitioner has declined requests to provide quarterly reports to the Board on the financial status of Cricket Kenya contrary to Article 8. 5.5 (c) of the CK Constitution.

18. The Respondents further aver that the Petitioner placed funds from one of Cricket Kenya’s sponsors in a bank account with Prime Bank Ltd (Kenya) and did disclose this to the CK’S Board or Auditors and that accounts for the Jersey Tournament were flagged as irregular by CK’S auditors.

19. The Respondents also accused by the Petitioner of paying himself approximately Kss.2,000,000 in allowances for the Jersey Tournament without approval from the board and he made a further payment to Kuben Pillay about Kshs.900,000 to incentivise him leading to his suspension by International Cricket Council (ICC).

20. The Respondents further stated that the Petitioner failed to abide by the court order issued by this Tribunal on 22/07/2022 in SDTSC No.E015 of 2022 in terms of releasing the sum of Kshs.6,936,073. 49 to the Kenya Men’s National Cricket Team even after proper accounting and that no account had ever been provided by the Petitioner.

21. The Respondents also stated that the agenda for the meeting was sent to the Petitioner and to the contrary the same contained an item with respect to his suspension covered under “Matters Arising”.

22. The Respondents also claimed that the Petitioner had a dubious reputation and had been suspended as a member of Nairobi Gymkhana Club which is the subject of constitutional court in Solanki v Nairobi Gymkhana & Anor.(Constitutional Petition E480 of 2023).

23. The Respondents prayed that the claim be dismissed with costs to the Respondents.

Hearing 24. The Tribunal heard the matter on 02/04/2025 and thereafter parties were directed to file written submissions.

Determination 25. The Tribunal has taken into account the parties’ pleadings, oral and written submissions and all documents in support of the parties’ cases. The Tribunal has also made reference to the Cricket Kenya’s constitution, the Sports Act, the Fair Administrative Action Act as well as the Constitution of Kenya. These are our findings.

26. The jurisdiction of this Tribunal stems from section 58 of the Sports Act that provides:“The Tribunal shall determine—a.appeals against decisions made by national sports organizations or umbrella national sports organizations, whose rules specifically allow for appeals to be made to the Tribunal in relation to that issue including —i.appeals against disciplinary decisions;ii.appeals against not being selected for a Kenyan team or squad;b.other sports-related disputes that all parties to the dispute agree to refer to the Tribunal and that the Tribunal agrees to hear; and(c)appeals from decisions of the Registrar under this Act.”

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

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

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

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

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

32. Article 8. 3 (g) of the CK Constitution provides that the Council has the powers to elect ,suspend, expel, admit or reinstate members of the Executive Board or members as the case maybe.Moreover,the CK’s Constitution in Article 8. 4.3 provides that the Board shall ratify and notify the Council of Recommendations and decisions of the Disciplinary Committee and any Arbitration Process. Lastly, in Article 8. 4.3 (g) provides that the Board may suspend a County Cricket Association affiliated to CK for gross misconduct.

33. Clearly, from the Tribunal’s reading of the CK Constitution the Board did not have powers to suspend the Petitioner. The board has powers to suspend a County Cricket Association but does not have powers to suspend members of the board or members as the case maybe. This power can only be exercised by the Council. The tribunal find that the Board acted ultra vires its powers and authority.

34. Moreover, the Tribunal finds that the Board and indeed the Respondents failed to meet the threshold of a fair hearing under Article 50 (2) (b) and (c) of the Constitution as the Petitioner was neither informed of the charge facing him with sufficient detail nor given adequate time and facilities to prepare his defence during the Board Meeting of 28/08/2024. A serious allegation like those levelled against the Petitioner cannot be raised through “Matters Arising” as seen from the Respondents’ pleadings and response and to aggravate it all it was not even an agenda item for the meeting. It was incumbent upon the Respondents to notify the Petitioner the charge he is facing with adequate notice and time to face the Board. This to a very great extent prejudiced the Petitioner’s case and severely infringed his rights under Article 50(2) (c) and (d) of the Constitution of Kenya.

35. Furthermore, the Petitioner was not informed in advance of the evidence the Respondents intended to rely on, and for him to have reasonable access to that evidence. This was contrary to Article 50(2)(j)(k) of the Constitution of Kenya.

36. Additionally, the Respondent’s decision of 28/08/2024 was not a reasoned one contrary to Section 4 (3)(a) of the Fair Administrative Action Act.

37. Consequently, the ingredients of what constitute natural justice were absent as this decision of 28/08/2024 by the Board.In sum, the Tribunal finds that the Respondents failed to afford due process to the Petitioner. The Tribunal also finds that the counterclaim by the Respondents have not been particularized to make it possible for the Tribunal to make an appropriate determination.

38. Since costs follow the event and given that the Petitioner’s prayers have all not been granted the Tribunal is of the view that each party bears its own costs.

Conclusion 39. It is therefore in consideration of this, as well as the parties’ submissions that the Tribunal makes the following orders:a.The statement of claim dated 20/09/2024 is hereby allowed in part;b.The Respondents jointly and severally are ordered to reinstate the Petitioner as Cricket Kenya Treasurer and as a signatory of Cricket Kenya Account;c.A declaration be and is hereby issued that the Cricket Kenya Executive Board decision made on 28/08/2024 suspending the Claimant from his duties as Treasurer was unconstitutional, irregular and unlawful;d.The Tribunal hereby quashes the decision of the Executive Board of Cricket Kenya made on 28/08/2024 suspending the Claimant from his duties as Treasurer;e.Each party shall bear its own costs;f.Orders accordingly.

DATED AT NAIROBI THIS 8TH DAY OF MAY, 2025ELYNAN SIFUNA- PANEL CHAIRPERSON, SPORTS DISPUTES TRIBUNALGABRIEL OUKO - MEMBER, SPORTS DISPUTES TRIBUNALGICHURU KIPLAGAT - MEMBER, SPORTS DISPUTES TRIBUNAL