Court quashes Nyali Golf Club suspension of 3 over WhatsApp chat

The High Court has quashed a decision by Nyali Golf and Country Club to suspend the membership of two lawyers and an insurance executive for one year and six months respectively.

Justice Alfred Mabeya ruled that contrary to the contention by the club that quashing the decision would be to interfere with its operations, the club cannot be allowed to trample on the fundamental rights of its members.

Messrs Lumatete Muchai, Wafula Nyongesa and Gurbax Singh are alleged to have engaged in a WhatsApp group conversation that was deemed injurious to the welfare and interest of the private members’ club.

“It would be righting the wrongs the respondent (Nyali Golf and Country Club) has committed acting contrary to its own rules,” said Justice Mabeya.

Justice Mabeya ruled that there was no evidence of the charges which the club intended to charge Messrs Muchai, Nyongesa and Singh with.

“This was a grave omission considering that the applicants (three members) had variously complained that they were unaware of the charges,” Justice Mabeya ruled.

He further said that although Nyali Golf and Country Club is a private club, it cannot be allowed to completely ignore the fundamental rights of its members.

A right to a fair hearing is not only set out in its (club’s) Memorandum of Association but it is a fundamental right under Article 50 of the Constitution, the judge said.

Justice Mabeya also said there was no evidence that the applicants were invited to a meeting, which deliberated on an alleged report against them and where a resolution to suspend them was arrived at.

Reframing the charges

The court noted that the conduct of the club was spurious and that, in failing to reschedule a meeting as sought or reframing the charges, it would lead to a conclusion that there may have been no intention on its part to give the three members any fair hearing or hearing at all.

“The allegations in the replying affidavit that the applicants refused to attend the hearing is not supported by any evidence,” said Justice Mabeya.

The applicants, who had told the court that they are senior and longstanding members of the club, wanted the court to quash a decision by the club to suspend them on December 18 last year.

Through lawyer Augustus Wafula, they told the court that some time between October and December last year, Nyali Golf and Country Club initiated disciplinary proceedings against them for alleged breach of its Memorandum and Articles of Association.

They further argue that despite repeated requests, the club proceeded with the disciplinary action without allowing them to be heard.

The applicants told the court that Nyali Golf and Country Club failed to formally notify them of the alleged breaches.

They also argue that the club proceeded to preside over the disciplinary proceedings against them as both the judge and the complainant, to their detriment.

“The respondent (club) made a decision suspending the applicants with immediate effect contrary to the clear provisions of the Memorandum and Articles of Association requiring 14 days of taking effect,” argued the three in their suit documents.

They also argue that Nyali Golf and Country Club’s action threatens to erode and destroy their “hard-earned” reputations and status within the society.

According to the three golf club members, the club’s action amounts to a violation of their legitimate expectation, considering their long and loyal membership.

Damage reputation

The applicants further told the court that they are also members of other clubs and their suspension would ''seriously'' curtail their access to those clubs and at the same time damage their reputation.

On its part, Nyali Golf and Country Club told the court that it is a private members' club and those seeking to become members must be bound by its Memorandum and Articles of Association.

Through lawyer Kinyua Kamundi, the club told the court that the allegations that the three members were not given an opportunity to be heard were false, saying that, except for Mr Singh, they refused to submit themselves to the authority of a disciplinary committee.

“The applicants were informed of allegations made against them in sufficient detail, including  messages, to enable them to defend themselves,” part of the suit documents state.

The club had wanted the court to find and hold that it has no jurisdiction to hear and determine the case before the three members exhaust internal mechanisms.

According to the club, the affairs of private members’ clubs cannot be managed by courts and that it is absurd for the applicants to demand that they should be disciplined by courts.