Court penalises Nairobi club for unlawful suspension of members

The High Court has ordered the Nairobi Club to pay two of its members Sh700,000 each for suspending them without a fair hearing and disqualifying them from contesting in club elections.

The petitioners, Joseph Kamau Magachi and Duncan Kaguuru Muriuki, had applied to vie for positions on the main committee.

Their disqualification was communicated through a letter dated May 6, 2022, which informed them they had been suspended in October 2020 over an unpaid minimum expenditure surcharge of Sh1,500.

This charge was applied during the height of the Covid-19 pandemic when the club was physically closed to members.

Magachi had contended that since they were unable to patronise the club at the time, he decided to “cease paying the amount until the matter was resolved”.

“He depones that in December 2020, he decided to pay all the outstanding balances being Sh40,000, as he waited for the first respondent to reverse the contentious charge. He claims the reversal was never made,” court documents show.

Magachi continued to visit the club with no restrictions, saying he was shocked to receive the second respondent’s letter stating he had been suspended from the club.

An appeal lodged by the petitioners, who stated in their affidavits were members with no outstanding bills, was dismissed days later through a letter.

In its defence, the club argued that the matter was "moot" [lost relevance] because the elections had already taken place in 2022.

They also claimed the members should have exhausted internal mediation before coming to court.

In his judgment delivered on March 26, Justice Lawrence Mugambi found that the club’s caretaker committee acted arbitrarily and unfairly when it barred the two from seeking nomination for the main committee elections, citing a suspension of which the petitioners claimed to have no prior knowledge.

Justice Mugambi observed that the respondents had failed to demonstrate that any prior notice of the suspension had been issued to the petitioners.

“There is no evidence that prior action of suspension had been taken and conveyed to the petitioners before the letter of May 6, 2022, that informed them that they could not be nominated by reason of suspension,” the judge stated.

“They were learning about it for the first time.”

Even assuming a valid suspension existed, the club had not given the petitioners an opportunity to be heard before imposing it.

“There are no minutes of the deliberation of the committee that were presented before this court confirming that, in fact, this appeal was even deliberated upon,” the court ruled.

“Instead, what the respondent relies on is a communication by the CEO vide the letter of May 12, 2022, purporting that the committee sat and reached the decision that dismissed the appeal.”

Justice Mugambi described the club’s approach as demonstrating “prejudice, arbitrariness and disregard for fairness”, concluding that the letters could not satisfy the constitutional threshold for procedurally fair administrative action.

The judge also rejected the club’s argument that the matter had become moot because the elections had already taken place and a new committee had been elected.

The court also dismissed the club’s reliance on an internal dispute resolution mechanism, noting that the rule relied upon—Rule 24 of the club’s by-laws—was conspicuously missing from the index of rules exhibited by the respondents and its substance had not been provided for verification.

Each petitioner was awarded Sh700,000 in compensation, with costs of the petition also granted in their favour.

The judge noted that while the specific prayer to participate in the elections had been overtaken by events, the broader claim for vindication of fundamental rights remained alive and justiciable.