[2017] KESDT 11 (KLR)

REPUBLIC OF KENYA

THE JUDICIARY

OFFICE OF THE SPORTS DISPUTES TRIBUNAL

APPEAL NO. 17 OF 2017

THIKA RUGBY FOOTBALL CLUB .......APPELLANT

-VERSUS-

KENYA RUGBY UNION..........................RESPONDENT

DECISION

Hearing: 22nd August, 2017

Panel: John Ohaga - Chairman (SDT)

Elynah Sifuna - Member

Njeri Onyango - Member

Appearances:Mr. Peter C Karera instructed by the firm of Murithi Kimathi & Karera Advocates for the Appellant;

Ms. Irene M Kiwool instructed by the firm of Muchemi & Co Advocates for the Respondent;

Pleadings and preliminaries

1. This appeal commenced by the Appellant’s filing of Notice of Motion application dated 15th June 2017 filed under Certificate of Urgency and the Supporting Affidavit of Gerald Chege Gaitho as well as the annexures thereto seeking three orders, namely:

a. That the Honourable Tribunal be pleased to set aside the Respondent’s decision fixing a match between the Appellant and Ngong Rugby Football Club pending the hearing and determination of the present appeal;

b. That the Honourable Tribunal be pleased to admit the Appellant’s Notice of Appeal; and

c. That the costs of that application be in the cause.

2. The Appellant thereafter moved the Honourable Tribunal again vide another Notice of Motion application dated and filed on 20th June 2017 and the Supporting Affidavit of Gerald Chege Gaitho seeking for orders that:

a. The Honourable Tribunal be pleased to set aside the Respondent’s decision awarding a walkover for the match between the Appellant and Ngong Rugby Football Club;

b. That the Honourable Tribunal be pleased to suspend any further matches between the Appellant’s and Ngong Rugby Football Club pending the hearing and determination of the appeal; and

c. That the costs of that application be in the cause.

Proceedings

3. The parties thereafter first appeared before the Honourable Tribunal on 20th June, 2017 where Ms Kiwool indicated that she had been served with the application that had been filed that day. It was agreed by the parties that they shall deal with the merits of the main appeal and abandon the new application.

4. To this end, the Tribunal issued orders that the Appellant was to file the substantive amended appeal and a further Affidavit within 7 days addressing the issues that led to the filing of the Appeal; that Ngong, JKUAT RFC and MKU RFC shall be joined as Interested Parties to the suit; that the Appellant shall serve the Appeal and the accompanying documents on the Interested Parties; that the Interested Parties are at liberty to file appropriate responses; that the Respondent shall file a response to the Petition within 7 days; that the matter shall be mentioned on 11th July to confirm compliance and for further directions and for allocation of a panel.

5. On 11th of July, Mr. Karera appeared for the Appellant but there was no appearance for the Respondents. Mr Karera indicated that they have only been able to serve the Respondent and were yet to serve JKUAT RFC and MKU RFC. He stated that they had been unsuccessful in tracing the clubs but that they had then been directed by the schools.

6. The parties thereafter appeared before the Honourable Tribunal on the 25th of July 2017 where the matter came up for a hearing.

The Appellant’s Case

7. Mr Karera for the Appellant submitted that the Appellant is aggrieved by the decision of the Appeals Committee. He sought to challenge Rule 12. 2.6 and 12. 2.7 on relegations. He argued that the Respondent sneaked ridiculous, unfair and unjust rule 12. 2.7 into the Kenya Rugby Union (hereinafter referred to as ‘KRU’) Rules and regulations without consultation, inclusivity and contrary to equitable rules of relegation.

8. Counsel also argued that the said rule is inconsistent with establishes principles of relegation in Rugby Sports world over and a departure from the necessity to maintain consistent and uniformity in Governance of Rugby.

9. Further, he argued that by promoting the rules, the Respondent abdicated its constitutional mandate of promoting good governance of the rugby sport in Kenya by occasioning injustice to deserving teams through failure to appreciate and reward efforts.

10. Furthermore, he argued that a rule purporting to award a lower league semi-finalist loser a one-off kick knockout chance for promotion against a team that has made effort through the pendency of the entire season to finish the league among the top ten teams can never be justified.

11. The Appellant also argued that it was denied the chance of a fair hearing by the Respondent’s internal dispute resolution mechanism which are not independent from the Respondent, and that the Respondent failed to exercise Rule 2. 7 of the KRU Rules and Regulations which provide for severing Rules and Regulations which are found to be void and unenforceable. It also submitted that the Respondent who wields immense decision-making power in matters rugby has repeatedly breached the rights of the appellant.

12. He went on to add that there are two versions of the Rules since there was some improper introduction and/or un-procedural nature of introduction of the Rules. He argued that the impact of the rules on the client were that the rule is absurd annexed and that the amendment was procedural.

13. Lastly, the Appellant argued that it had exhausted all internal appeal mechanisms provided by the KRU Constitution.

The Respondent’s Case

14. The Respondent through Counsel and its Replying Affidavit to the appeal sworn by Ronald Bukusi dated 1st August 2017 and filed on the same day argued that on 24th February 2016, one Mike Lucas (Chairman, Kenya Harlequins RFC) on behalf of the Kenya Cup Governing council sent a Notice of Motion to the secretary KRU for the amendment of the entire rules and regulations governing Rugby in Kenya. The Respondent averred that on 3rd March 2016, KRU secretary circulated a draft of KRU rules and regulations to all full members of the Kenya Rugby Union, which were adopted in an AGM held on 16th March 2016 in which the Chairman of the Appellant was in attendance and had no objection.

15. The Respondent also argued that under section 10. 18 of the KRU constitution all lawful resolutions of the board are be binding on all members and Associate members of the union until revoked or rescinded by the Board, which did not happen.

16. Counsel for the Respondent argued that Regulation 12. 1.3 (a), & (b) of the KRU regulations on Adult Competition provides for Kenya Rugby Union's Power to vary, amend or make further regulations during the season. As such, he argued that the Respondent acted procedurally in altering the principals of Relegation in the draft rules and regulations adopted by the Annual General meeting.

17. The Respondent further argued that as provided for in clauses 12. 1.1 & 12. 1.3, by-laws can only be changed at an AGM. Counsel submitted that the at the time, the Champions League was not in existence, but the during the AGM, the Champions League Committee was allowed to make further rules and regulations as it deemed fit. He underlined that from the AGM, it could be seen that there was a thread of authority and validity to demonstrate this rule.

18. Counsel stated that the League Committee was allowed to make amendments if it deemed fit. This was because they knew the interests of the sport and that the Appellants has not in any way demonstrated that their interests had been infringed. He also pointed out that the meeting was participatory; it included all teams. Therefore, the appellant must demonstrate the rules being detrimental to the Sport.

19. Counsel stated that the Tribunal has no regard to determine this rules on whether the rules so amended were rationale or irrational. Thus, the Tribunal cannot delve into rulemaking of KRU. They therefore submitted that the process for the amendment was procedural.

20. On the issue of malicious scheduling of the match Counsel argued that there was no malicious intent as the Appellants were given adequate notice, the postponement was communicated in ample time and that the Appellants were informed of the play-off match.

21. Counsel for the Appellant objected the submission that there was representation during the AGM. He stated that there was no representation by any of the Appellants members during the AGM. He also pointed out that the Minutes for the AGM were unsigned therefore bringing the issue on the authentication of the minutes.

Discussion

22. Having appreciated submission and documents supplied by Counsels in support of their respective positions, there is, in our view, one issue for determination and upon which the entire appeal hinges. The issue is this:

a. Whether the Respondent properly promulgated the rule regarding relegation and promotion of the Rules.

23. The Tribunal is alive to the dispute regarding the Appellant’s refusal to play the match on 17th June 2017. This appeal does not however turn on that dispute and as such will not form an issue in determination.

The Law

24. The guiding law to the Tribunal is Regulation 12. 1.3 (a), & (b) of the KRU regulations which spell out the powers of the Respondent.

25. It states as follow;

Power to vary, amend or make further regulations during the season

In the event that KRU organizing committee considers it is in the interests of rugby union football or a KRU Competition, it may amend or vary KRU Regulation 12 and the Appendices and/or make further regulations during a Season:

(a) where in the view of the Committee exceptional and material circumstances have occurred during any KRU Competition which either have not been provided for in or cannot be equitably dealt with under KRU Regulation 12 (particularly if promotion or relegation is likely to be materially affected), the Committee may at its own instigation introduce regulations for the current Season and/or determine the results of matches that have not been played for reasons related to the above exceptional and material circumstances and/or determine which Clubs should or should not be relegated);

(b) any regulation or decision made or taken by the Committee under this Regulation shall become final and binding unless any person or Club affected has given notice of an appeal to KRU Head of Discipline within 48 hours of that person or Club affected being made aware of it and an Appeal Panel rules that the regulation or decision of the Committee shall not apply.

26. Noteworthy, the impugned rules states as follows:

12. 2.6- The principles of promotion at the conclusion of Season shall be:

(a) The winner and Runner up of the nationwide play-offs shall be promoted to play in the The Championship League in the next Season provided such Club fulfils the minimum standards criteria for The Championship League and complies with any other applicable regulations in connection with its promotion; The winner and runner up of The Championship League shall be promoted to play in the Kenya Cup in the next Season provided such Club fulfils the minimum standards criteria for Kenya Cup and complies with any other applicable regulations in connection with its promotion

(b) Subject to Regulation 5, the top club and runner up in Nationwide League (Level 3) shall be promoted to the The Championship League (Level 2);

Rule 12. 2.7 -Principles of Relegation

Subject to Regulation 12. 2.8, the principles of relegation at the conclusion of the Season:

(a) Provided that the winner and runner up of Nationwide League fulfil the criteria for promotion set out in Regulation 5, the lowest 2 placed Clubs in the Kenya Cup shall be relegated to The Championship League. If the winner or runner up does not fulfil such criteria and is not promoted for that or any other reason, the lowest placed Club/s in the Kenya Cup shall not be relegated to The Championship League;

(b) The lowest 2 clubs of the The Championship League shall be relegated to Nationwide league, whilst No. 9 and 10 of the The Championship League will play off with No. 3 and 4 of Nationwide to determine which 2 teams shall fill the last slot in the The Championship League.

Reasoning

27. Our reading of Regulation 12. 1.3 (a), & (b) is that it is clear that in the event that KRU organizing committee considers it is in the interests of rugby union football or a KRU Competition, it may amend or vary KRU Regulation 12 and the Appendices and/or make further regulations during a Season. Further, the Committee may at its own instigation introduce regulations for the current Season and/or determine the results of matches that have not been played for reasons related to the above exceptional and material circumstances and/or determine which Clubs should or should not be relegated.

28. Therefore, on the question of whether the Respondent properly promulgated the rule regarding relegation and promotion of the Rules, we find that indeed the Respondent properly promulgated the rules in question in line with the mandate donated to them by Regulation 12. 1.3 (a), & (b) of the KRU Regulations.

29. On the question of the Respondent’s decision of 17th June 2017 awarding a walk over to Ngong Rugby FC, we appreciate that the Appellant filed an application dated 15th June 2017 under Certificate of Urgency supported by the Affidavit of Gerald Chege Gaitho seeking three orders, among them that the Honourable Tribunal be pleased to set aside the Respondent’s decision fixing a match between the Appellant and Ngong Rugby FC pending the hearing and determination of the present appeal. However, looking at the resulting Directions that were issued by the Tribunal on 16th June 2017, none of the orders granted restrained the Respondent from fixing the said match. On that basis, we similarly find that the Appellant’s second prayer must fail.

Conclusion

30. In view of the foregoing, the following orders commend themselves to the Tribunal:

i. The Appeal by the Appellant dated 27th June 2017 is dismissed;

ii. That each party shall bear its own costs.

31. The Tribunal thanks all the parties for their extremely helpful contribution and the cordial manner in which they conducted themselves.

Dated and delivered at NAIROBI this 14th day of September,2017.

Signed:

John M Ohaga, FCIArb

Chairperson, Sports Disputes Tribunal

In the presence of:

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