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Anti-Doping Agency CEO loses bid to save job as court approves disciplinary hearing
Anti-Doping Agency Chief Executive Officer Sarah Shibutse when she appeared before the National Assembly Sports and Culture on Wednesday, October 23, 2024.
The Anti-Doping Agency of Kenya (Adak) Chief Executive Officer Sarah Idieva Shibutse has suffered a setback in her fight to retain her job after the court declined to stop the agency from conducting a disciplinary hearing against her.
The Employment and Labour Relations Court dismissed her application in which she sought temporary relief restraining the sports agency from subjecting her to disciplinary action over what they term as improper conduct by undermining financial management procedures and controls.
“In view of the findings, the application is amenable to dismissal with costs in the cause, and the parties are to take further directions for subsequent steps in the petition,” said Justice Byram Ongaya in a ruling dated March 14.
While dismissing Ms Shibutse’s application, the judge noted that she had failed to demonstrate an applicable provision that had been contravened, thereby failing to establish the test for granting the reliefs she sought.
“As submitted for the respondent, it has not been shown that the applicant has established a prima facie case to justify the court’s intervention in the initiated and continuing disciplinary process,” said the judge.
Ms Shibutse filed the application on February 17, seeking a temporary injunction to stop the agency from conducting a disciplinary hearing against her until her case is determined.
Appointed CEO in 2022, on a three-year renewable contract, Ms Shibutse stated in court documents that on December 16, the board of directors resolved to send her on 90 days’ compulsory leave, despite this not being provided for in her employment contract or the agency’s manual.
The period was later revised to 30 days via a letter dated January 17, with instructions to resume duties on February 3.
“After receiving the communication regarding my compulsory leave on December 18, 2024, I aired my grievances and provided an explanation through a letter dated January 10, 2025,” she stated through Nchogu, Omwanza & Nyasimi Advocates.
She was then invited to a special board meeting on January 17. However, despite arriving early, she was called in at 2:00 pm, where she found the Audit and Risk Management Board Committee instead of the full board.
“Upon inquiry, the committee informed me that the full board had adjourned its meeting to January 27,” she said.
Later that day, she claimed she was interdicted and served with a show cause letter. She argued that the disciplinary process contravenes the agency’s human capital manual and risks causing her irreparable harm as her contract nears its end and while she can apply for a further term, will not be eligible to apply until the conclusion of the disciplinary process.
'Grave injustice'
“This court has jurisdiction to intervene where the disciplinary process is bound to cause grave injustice and where the process is marred by irregularities and outright illegalities, as is the case here,” she said.
She also lamented that the disciplinary hearing panel may be biased since a person previously directly involved in the preliminary preparation of the case may be a panel member and that some of the materials the agency relied on to advance the disciplinary case may be doctored.
In response, the agency’s Board Chairperson Joseph Kagunda dismissed her application as premature and an attempt to obstruct the disciplinary process.
“The petitioner is keen on avoiding responding to the critical question of misappropriation of public funds. She has not even replied to the show cause letter to enable the agency to make a decision regarding the allegations,” said Mr Kagunda.
The agency justified sending her on compulsory leave, giving reasons for its actions. It began by saying that following the rise in doping cases among the athletes in recent years, the country was faced with a high possibility of being sanctioned by the World Anti-doping Agency and World athletics.
This led to a national anti-doping retreat in December 2022, resulting in the formation of a steering committee with the mandate to develop and oversee the implementation of a strategic plan to address doping in Kenya.
The government then committed $5 million annually for five years to fund the initiative christened Enhanced Athletics Anti-Doping Project.
The agency’s board approved a budget, procurement plan, and work plan for the 2023/24 financial year. However, at the end of that period, Ms Shibutse reported pending bills estimated at Sh46 million.
The agency directed management to prepare a report on the pending bills and present it before the full board through the Audit and Risk Management Board Committee due to inconsistencies between her report and the approved Sh532 million budget for the 2023/24 financial year.
On October 9, 2024, management submitted the pending bills verification report to the Audit and Risk Management Board Committee. The committee resolved to verify its authenticity.
The verification uncovered 58 pending bills worth Sh48 million, which the committee noted contained several irregularities in the payment vouchers.
“The irregularities included, but were not limited to, variations in prices and dates, missing requisite documentation, double professional opinions, duplicity in local service orders, and outright fictitious pending bills,” the agency stated in its court documents.
The agency tabled the report at a special full board meeting on December 16. The board determined that Ms Shibutse was responsible for improper conduct by undermining financial management procedures and controls, permitting unlawful expenditure without the necessary supporting documents, and thereby causing the pending bills.
Furthermore, the agency said the audit and risk management board committee's report showed that the CEO implemented activities outside the approved work, procurement plan, and budget for the Enhanced Athletics Anti-Doping Project for the 2023/24 financial year, without the board’s express approval.
“The position is confirmed by Ms Shibutse in her supporting affidavit, where she stated that the pending bills arose because the agency was expected to carry out extra doping control tests on athletes preparing for the 2024 Paris Olympic Games, which had not been budgeted for,” said the agency.
The agency argued that as CEO, she should have sought board approval before undertaking the activities.
Based on these findings, the board resolved on December 16 , to send her on 90 days’ compulsory leave for further investigations into procurement irregularities, professional misconduct, and misappropriation of public funds.
“During the special full board meeting held on January 27, 2025, the board deliberated on the report and found the petitioner’s responses unsatisfactory. Consequently, it resolved to interdict her with immediate effect and issue a show cause letter,” said Mr Kagunda.
The agency insists that it has not violated Ms Shibutse’s rights in the disciplinary process and maintains that its actions are justified.