On 17/8/04, Maurice Odumbe, then a Kenya cricket international, was handed a 5 year cricket ban by the Kenya Cricket Association (KCA). The ban was handed to the cricketer following recommendations made by a committee set up by the KCA to investigate the cricketer’s conduct in relation to claims of misconduct and match fixing leveled against him in the year 2004. Shortly after this decision to ban him from playing cricket for five years was made, Odumbe, though his lawyer, moved to court seeking to have the judge quash the decision of the KCA and issue another order prohibiting the KCA from banning him from playing cricket. Odumbe’s lawyer filed a judicial review application which application the respondent’s lawyer objected to primarily on the grounds that the KCA was a private entity and as such its decisions were not amenable to judicial review. Unfortunately for Odumbe, the court upheld the respondent’s submissions and dismissed Odumbe’s application. Odumbe, then the immediate former captain of the Kenya Cricket team, never got to play another international cricket match for Kenya. (Republic Vs. Kenya Cricket Association & 2 others Ex parte Maurice Omondi Odumbe (2006 e Klr)

It is arguable that the outcome of Odumbe’s case would have been different had his lawyer taken a different tactical approach to the case. About two decades earlier, three officials of Mwamba rugby club had successfully challenged in court a decision by the Kenya Rugby Football Union suspending the club and slapping it with a fine. The suspension and fine had supposedly been imposed on the club by the rugby union following the club’s refusal to play against a visiting rugby team from South Africa. The three club officials filed a petition in the constitutional division of the High Court against the then chairman of the rugby union claiming that the club member’s freedom of conscience had been trampled upon by the union. The court agreed with the petitioners and made an order quashing the union’s decision. (Mugaa M’Mpwii vs. G.N. Kariuki; Nairobi High Court Civil Case No. 556 of 1981). This case broke new legal ground in that it set out at least one instance when the court would be compelled to revisit the decision of a private sports entity and revise it. That Odumbe’s lawyer failed to follow the legal precedent set in the Mwamba rugby club case was a costly mistake which Odumbe ultimately paid for. Had Odumbe’s lawyer approached Odumbe’s case against the KCA the same way counsels representing Mwamba rugby club approached the case against the rugby union, it is possible that the court could have found for Odumbe.

A key similarity between the two cases above is that in both cases, the claimant was aggrieved by the disciplinary action taken against them by a national sports organization. In both instances, the claimant sought to challenge the decision of a private sports entity and both claimants approached the court for redress. However, this is as far as the similarities go. In the former case, the claimant’s counsel opted to approach the court by way of a judicial review application which application the court rightly refused to entertain whereas in the latter case, the learned counsel on behalf of the petitioners elected to approach the constitutional court with their client’s grievances and the court was vigilant in coming to the aid of the petitioners who had claimed that their constitutional rights had been infringed by the impugned disciplinary action.

It is trite law that judicial review is a remedy only open to an ex parte applicant who wishes to challenge the manner in which a decision by a public body was made. Even at the time the Maurice Odumbe case was instituted, this was the position at law and there were numerous judicial precedents illustrating this fact. Further, it was common ground even at the hearing of the Odumbe case that the International Cricket Committee (ICC) the umbrella world body for cricket to which the KCA subscribed was a private company limited by guarantee and the KCA was a society registered under the Societies Act. The fact that the KCA operated under the umbrella of a private entity (the ICC) could only mean that the decision of the ICC it was enforcing was the decision of a private body and therefore not amenable to judicial review. That Odumbe’s counsel disregarded these facts was a costly error which Odumbe had to pay for.

On the other hand, it is also a fact that both the current and the former constitutions empower the High Court to determine questions on whether a right or fundamental freedom in the bill of rights has been denied, violated or threatened. In determining such questions, the High Court is empowered to among other things make a declaration of rights and also a declaration of invalidity of a law or act that denies, violates or threatens a right or fundamental freedom in the bill of rights. The constitutional court has traditionally been zealous in giving legal redress to petitioners whose rights and freedoms under the constitution had been trampled upon or are being threatened. The lawyers appearing on behalf of the officials of Mwamba rugby club took advantage of the zeal and were successful in getting the court to intervene in and quash a decision of a private sports entity that had been made against his clients. That was not the case however for Odumbe.

In applying a constitutional approach to the Odumbe case, it can be argued that the 5 year ban imposed on Odumbe would have curtailed his freedom of association as he was being prevented from playing cricket with his teammates. In effect, his association with his mates on the cricket field was threatened and it is arguable that this was a case deserving of intervention by the constitutional court. The fact that the denial of rights was by a private entity would not have been an issue, as at the time, it was already legally acceptable that the bill of rights can be enforced as against individuals, either natural or juristic, who may be disposed to threaten individual rights or interfere with the exercise of them. (See Motala & Another v University of Natal (1995) 3 BCLR 374). If only Odumbe’s lawyer had been of this similar opinion, it is possible that Odumbe’s career couldn’t have been cut short prematurely. However, this can only be the subject of speculation.

In summing up this discussion, it can be concluded that it was expected of Odumbe’s counsel to know all the relevant authorities which had been decided on the subject at the time and also to be familiar with the legal principles upon which the case would turn. Odumbe’s counsel ought to have known about the Mwamba rugby club case and also about the non application of judicial review to decisions of private sports entities. It is arguable that his failure to take heed of the judicial authorities available and the legal principles at play was the beginning of the end for Odumbe’s cricket career. Yet not much is said or commented about the Odumbe case today, probably due to the lack of interest by publicists or the legal uncertainty surrounding litigation of sport disputes in court. However, one important lesson that can be learnt from Odumbe’s unfortunate situation is the need for counsel to keep abreast with developments in the various fields of law to avoid costly mistakes like those illustrated hereinabove. The law continually progresses and so should those in the legal profession. It surely is a sorry state of affairs for sports careers to be extinguished at the hands of counsel.