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Achiego v Kenya Basketball Federation; Ulinzi Basketball Club & 3 others (Interested Party) (Tribunal Case E020 of 2022) [2022] KESDT 257 (KLR) (Civ) (15 June 2022) (Decision)
Neutral citation:
[2022] KESDT 257 (KLR)
Republic of Kenya
Tribunal Case E020 of 2022
E. G. Kiplagat, MN Kimani, Members & A.M Owinyi, Chair
June 15, 2022
Between
Dennis Opiyo Achiego
Petitioner
and
Kenya Basketball Federation
Respondent
and
Ulinzi Basketball Club
Interested Party
Emyba Basketball Club
Interested Party
Lakeside Basketball Club
Interested Party
Kpa Basketball Club
Interested Party
Decision
Hearing:Upon hearing of the case held on 22nd April 2022, the Tribunal directed that it shall rely on the submissions filed by both parties in preparation of the judgment.
Panel:
1.Allan Mola Owinyi - Panel Chairperson
2.E. Gichuru Kiplagat - Member
3.Mary N Kimani - Member
Appearances:The Petitioner is represented by Ms. Nancy Ouko from the firm of Nanc Ouko & Company Advocates.The Respondent is represented by Mr. Robert Asembo from Asembo & Company Advocates with Mr. Ambrose Kisoi as secretary of the Respondent.The 3rd Interested party is represented by Mr. Moses Omondi from the firm of Omondi, Abande & Company Advocates.
The Parties
1.The Petitioner describes himself in the Petition dated 13th April 2022 as an adult male of sound mind, a member of the public, and having been involved in basketball activities within the country, someone with interest in good governance of the sport.
2.The Respondent is a national umbrella organization in charge of basketball in Kenya registered under the Sports Act No. 25 of 2013 Laws of Kenya.
3.The Interested Parties are basketball teams/clubs playing in the national league known as the Kenya Basketball Federation League, which runs every year with the participation of other teams, and on the basis of laid down rules for competition, qualification, participation and standings.
Procedural History
4.The Petitioner filed under Certificate of Urgency on the 13th April 2022, the Notice of Motion Application dated the same date asking for orders that the Application be certified urgent and to be heard in the first instance, praying for a temporary stay of the Respondent’s men’s National Basketball League Playoffs pending the hearing and determination of the said Application, and pending the hearing and determination of the suit filed therein. The Petitioner also urged the Tribunal to enjoin Ulinzi Basketball Club, Lakeside Basketball Club and any other interested parties to the petition and for the costs to be in the cause.
5.The Application was supported by the sworn affidavit of Dennis Apiyo Achiego, the Petitioner, dated 13th April 2022.
6.The matter came up for mention on the 19th April 2022, pursuant to directions of the Tribunal issued on 14th April 2022. Ms. Ouko stated that she had served Mr. Asembo with the Petition and the latter requested for 2 days to file his response. The Petitioner’s Advocate prayed for interim orders in terms of Prayer No. 2 of the Application and indicated that the other teams participating in the playoffs ought to be enjoined, indicating that she would serve them by the end of the day. The Tribunal issued no interim orders at that stage in view of the nature of the matter. Ulinzi, Emyba, Lakeside and KPA Basketball Club’s men’s teams were enjoined as interested parties with service to be made upon them by the end of the day, with the matter to be mentioned on 21st April 2022 to confirm that all parties had been served and filed their responses. The matter was listed for hearing on Friday 22nd April 2022 with the panel constituted as indicated earlier.
7.The matter was mentioned on 21st April 2022, with the Tribunal directing the Petitioner to file its affidavits of service by 2.30 pm on 22nd April 2022. All the other parties were to file their responses by 10.00am on 22nd April 2022 and the matter was set for hearing on 22nd April 2022 at 2.30 p.m.
8.Owing to the nature of the case and the playoffs having taken off and taking place, the Petitioner withdrew the Application dated 13th April 2022 filed under Certificate of Urgency. The parties to the case agreed to proceed with the Petition dated 13th April 2022. The Petition was set down for hearing on 29th April 2022 and was eventually heard on 29th April 2022 at 2.30 p.m via Microsoft Teams.
The Petitioner’s Case
9.The Petitioner approached the Tribunal vide a Petition dated 13/04/2022 filed on the same date. He states that the Respondent has during the ongoing 2021 National Basketball League flagrantly violated the rules laid down for team participation for purposes of qualification to play in the league playoffs, and has fraudulently manipulated results for matches played thereby giving one of the league participants, that is, Ulinzi Basketball Club men’s team an unfair opportunity to participate in the playoffs.
10.The Petitioner further stated that the said violation is evidenced by the Respondent falsely and fraudulently declaring that Emyba Basketball Club had forfeited a match on 27th November 2021, whereas the match was actually played by the two teams and a score sheet issued for the same as per the regulations.
11.The Petitioner stated in the Petition the particulars of fraud and manipulation by the Respondent which are;a.Fraudulently manipulating league fixture results by making false entries into official scoresheets.b.Falsely manufacturing score sheets for a match which was not played and subsequently reporting in favor of Ulinzi Basketball Club men’s team, to the detriment of other teams in the league.c.Forgery of signatures of match officials to validate an illegal score sheet document.d.Allowing Ulinzi Basketball Club to participate in the national men’s playoffs with a player who is unqualified to play in the said playoff’s contrary to the league and competition rules.
12.In the Affidavit in support of the Petition sworn by the Petitioner, the Petitioner avers amongst other issues that;a.That according to the League and Competition rules, a player can only be allowed to play in the playoffs if the player has played at least three matches during the regular season.b.That in the playoff match between Ulinzi Basketball Club and Lakeside Basketball Club that was played on 22nd January 2022, Ulinzi Basketball Club fielded a player, one Valentine Nyakinda, who ought to have been disqualified from playing in the playoffs having not played at least three matches during the regular season in violation of the provisions of the Respondent’s League and Competition Rules.c.That the Petitioner was informed by the officials of Lakeside Basketball Club, which information he verily believes to be true, that the said club raised the issue with the Respondent, and the Respondent informed Lakeside Basketball Club that the player in question had played three matches during the regular season. However, he felt the explanation was neither true nor satisfactory.d.That according to the response from Respondent, one Valentine Nyakinda played three regular season matches, one of which was between Ulinzi Basketball Club and Emyba Basketball Club played on 27th November 2021, being a regular season match. He further states that the Respondent subsequently falsely and fraudulently declared that the said league match between Ulinzi Basketball Club and Emyba Basketball Club was forfeited by Emyba basketball club, Emyba having allegedly failed to turn up for the said match.e.That the Respondent proceeded to flagrantly manipulate league fixture results by making false entries into official scoresheets, and doctored the score sheet for a match in favor of Ulinzi Basketball Club men’s team, to the detriment of other teams in the league.f.That the Petitioner was informed by officials of Emyba Basketball Club, which information he verily believes to be true that, contrary to the Respondent’s assertions, the match between Ulinzi Basketball Club and Emyba Basketball club was indeed played and a score sheet issued for the same, which does not have the name of Valentine Nyakinda listed therein.g.That the Respondent also used clearly forged signatures of the match officials in an attempt to validate the illegal scoresheet document dated 27th November 2021.h.That as a result of the doctored score sheet, the league rules have been manipulated allowing Ulinzi Basketball Club to participate in the national men’s basketball playoffs with one player, named Valentine Nyakinda, who is unqualified to play in the said playoffs since he did not meet the minimum requirement for participation in the playoffs.i.That it was clear that the score sheet for 27th November 2021 between Ulinzi Basketball Club and Emyba Basketball Club was doctored by the Respondent for purposes of enabling Ulinzi Basketball Club to field a player who was not qualified to play in the national league playoffsj.That Ulinzi Basketball Club should be disqualified from the national league playoffs and be fined for fielding a player who is disqualified from participating in the playoffs by virtue of the rule established by the Respondent.k.That the said playoffs are based on illegal and fraudulent doctoring of results and if allowed to continue, the Respondent will be propagating fraud and illegality and a gross injustice by a national governing body.l.That the Petitioner prayed the Petition be allowed.
13.The Petitioner sought for the following prayers in the application;i.That a declaration be issued by this Honorable Tribunal that the Respondent has violated League and Competition Rules with regard to the qualification of teams for the men’s 2021 Kenya Basketball Federation Premier League playoffs.ii.That the score sheet issued by the Respondent dated 27th November 2021 indicating that EMYBA Basketball Club forfeited the match between Ulinzi Basketball Club v Emyba Basketball Cub be declared a forgery, therefore illegal, null and void.iii.That Ulinzi Basketball Club be disqualified from the 2021 KenyaBasketball Federation men’s league playoffs.iv.That the ongoing men’s Kenya Basketball Federation League playoffs be declared null and void.v.That the Respondent be ordered to restart the 2021 national men’s Kenya Basketball Federation playoffs based on the correct standings in accordance with the rules.vi.The costs of this claim be borne by the Respondent.
14.During the hearing on 29th April 2022 the Petitioner’s Advocate Ms. Ouko urged the Panel to focus on the main issue of the case, which was that Rule 7 (e) of the Kenya Basketball Federation League and Competition Rules had been breached. The rules states that; “A player must play at least three (3) games in the regular season to be eligible to play in the play offs”. She contended that Valentine Nyakinda did not meet the said threshold but played for Ulinzi against Lakeside on 22nd January 2022. She relied on the said rules, marked as Annexture DAO 1.
15.Ms. Ouko also reminded the Panel that the issue was actually raised by Lakeside Basketball Club and that Lakeside was not satisfied by the explanation it was accorded by the Respondent. Annexture DAO 2 was the letter to the Secretary, Kenya Basketball Federation.
16.Ms. Ouko relied on Annexture DAO 3, which was a copy of the score sheet issued by the Respondent to show that there was flagrant manipulation of league fixture results in favour of Ulinzi Basketball Club, to the detriment of other teams and Annexture DAO 4 to support her case that contrary to what had been alleged by the Respondent, the match between Ulinzi and Emyba Basketball Clubs had actually been played and the score sheet issued for the said game did not contain the names of Valentine Nyakinda.
17.Lastly, Ms. Ouko averred that the Respondent had also clearly forged the signatures of match officials in an attempt to validate the illegal score sheet document dated 27th November 2021. The Petitioner attached Annexture DAO 5 as evidence of true copy of a score sheet reflecting the differences in signatures.
18.Ms. Ouko strongly averred that the Respondent violated its own rules and urged the Panel to look at Rule 10 of the rules on eligibility of players and the rightful action to be taken upon breach of the said rules. She insisted that the Respondent is a custodian of the game and is therefore accountable to the public.
Petitioners Written Submissions
19.The Petitioner also filed written submissions dated 4th May 2022 in support of his case and largely reiterated the averments made in the Petition.
20.The issues the Petitioner sought to be determined were;a.Did Emyba Basketball Club (Hereinafter, “Emyba”) the 2nd Interested Party herein, fail to show up for the game on 27th November 2021 giving Ulinzi Basketball Club (Hereinafter, “Ulinzi”), the 1st Interested Party herein a walkover?b.Was the game between the two Clubs played on 27th November 2021?c.Was the score sheet issued by the Respondent marked DAO - 3 a forgery?
21.The Petitioner stated in his submissions that, when Lakeside Basketball Club, the 3rd Interested Party herein made a complaint on the authenticity of the score sheet marked DAO - 3, the Respondent failed to address the matter. The Petitioner showed proof by providing the affidavit sworn by Mr. Christopher Kinywa in support of Lakeside’s position.
22.The Petitioner further stated that Emyba averred on oath that they played the match on 27th November 2021 and also provided the scoresheet issued by the technical game officials to Emyba at the conclusion of the match between Emyba and Ulinzi on 27th November 2021.
23.The Petitioner stated that fraud is a civil action, a cause of action with its own legal remedies quite apart from being a criminal act.
24.He further stated that, Ulinzi Basketball Club has not filed any response negating the facts and the Respondent has failed to institute any investigations or give any directions on the issue of fraud and have also not controverted the averments put forward by Mr. Robert Andiwo.
25.The Petitioner further stated that, in response to the allegation by the Respondent of his locus to this case, he does not need to be connected to basketball to present this petition. His stand was supported by various case laws and he further stated that the Respondent has not provided any evidence to demonstrate that he is a busy body attempting to malign the Respondent. He said that he is rightfully before this Tribunal.
26.In his response to the allegation by the Respondent that the Petitioner had not exhausted the dispute resolution mechanism under its Rules, he said that the issue is one of fraudulent misconduct and manipulation on the part of the Respondent. He further submitted that the Respondent cannot sit and rule on allegations against itself as it would go against the rules of right to a fair hearing as provided under article 50 of the Constitution of Kenya.
27.He concluded by stating the prayers he is seeking from the Tribunal which are;i.That the Tribunal issues a declaration that the Respondent has violated Rule 7(e) of the League and Competition Rules with regard to the qualification of teams for the men’s 2021 Kenya Basketball Federation Premier League playoffs.ii.That this Tribunal declares that the score sheet DAO - 3 issued by the Respondent dated 27th November 2021 indicating that Emyba Basketball Club forfeited the match between itself and Ulinzi Basketball Club a forgery, therefore illegal, null and void.iii.That this Tribunal invoke the provisions of Rule 10 of the Respondent’s League and Competition Rules. The consequences of this rule lead to Lakeside being deemed as the winners of the quarterfinals playoffs series. As a result, any matches played from the semifinals to the finals of the 2021 League are invalid.
28.The Petitioner relied on the cases of Kenya Akiba Micro Financing Limited vs Ezekiel Chebii & Others (2012) eKLR, R. G. Patel vs Lalji Makanji, Priscilla Nyokabi Kanyua Vs AG & Another (2010) eKLR amongst others in support of his case.
The Respondent’s Case
29.The Respondent, via a Replying Affidavit dated 26th April 2022, sworn by Mr. Ambrose Kisoi, the Secretary General of the Respondent, averred that the instant Application and Petition were manifestly frivolous, vexatious, and an abuse of Court process fueled by a conscious intent to malign the Respondent for political gerrymandering reasons and that he opposes the said Application and petition in toto. That the Application and Petition are misconceived and are based on falsehoods, exaggerations aimed at misleading the Honorable Tribunal;
30.He further averred that the Applicant/Petitioner has not tendered any evidence linking him with the sport of Basketball, and one wonders what his stakes are in the game as alleged in his application, petition and the Affidavit in support of it. That the Petitioner is a busy body with no suitable color of right, but advancing before the Honorable Tribunal mere suspicion and conjecture as well as advancing the negative political agenda of his proxies, some of whom are the Interested Parties.
31.He further stated that some of the Interested Parties (i.e. 2nd and3rd) have been on a misguided mission of endless lamentation, are envious as bitter losers instead of embracing the good spirit of sportsmanship to the success of the 1st and 4th Interested Parties who have had an excellent season in the game.
32.That he further averred that the Respondent has in place well- structured avenues and organs that would address any worthy and merited protestation by the 2nd and 3rd Interested Parties under Clause 9 of the Rules of Competition; instead the 2nd and 3rd interested parties chose to avoid the said avenues, and opted to enlist the services of the Petitioner as their proxy to come before the Honorable Tribunal as a vexatious litigant without any color of right, but a busy body not known for any association with the sport of basketball.
33.He further stated that no single rule to play offs has been cited by the Petitioner to have been violated by the Respondent.
34.He further stated that the averments by the Petitioner in the Application are inaccurate and the purported scoresheet cannot be accounted for by the Respondent who is the custodian of such records and regulations, and can only be the entity mandated to verify, ascertain and confirm the same. He avers that the Respondent has reasonable explanations for every document emanating from its stable being the legally recognized source of such documents. This is evidenced by regular updates and communication by the Respondent to and from all those involved in the game lawfully and legitimately.
35.He averred that the allegations of falsification, forgery and fraud against the Respondent are unjust and unfounded and only intended serve to the ego of unsporting conduct of the losers in a competition they have chosen not to embrace sportsmanship. He states that no official of the Respondent has sworn any affidavit to the falsification, forgery and fraud of any of the Respondent's documents. No complaint had been reported with the police for such well known criminal offences.
36.He also stated that contrary to the allegations, the Respondent is diligently exercising its lawful mandate in the administration of the game of basketball and that the orders sought by the Petitioner are not only extremely prejudicial to the Respondent especially viewed in the interests of sponsorship, well-wishers and partners in the game, but also to the 1st and 4th Interested Parties.
37.He further stated that in response to the Supporting Affidavit, the Petitioner has not produced any evidence of his involvement in basketball activities and is also merely making assertions not supported by any evidence.
38.He further averred that the player Valentine Nyakinda was properly signed by the 1st Interested Party in October 2021 being an international player transfer from Rwanda and represented them in Africa's Continental Top Clubs' Competition-BAL within Clause 5 of the Rules.
39.He also stated that the participation and fielding of the Player Valentine Nyakinda by the 1st Interested Party in the League Season and playoffs remains lawful and legitimate. He affirms that the said player fulfilled the three games regular season rule under 7(e) which was complied with fully.
40.
During the hearing the Respondent stated that the match between Ulinzi and Emyba Basketball Clubs was forfeited. They supported the position presented by the 4th Interested Party and on a balance of convenience he insisted that Ulinzi and Kenya Ports Authority are heroes of the country and believe in honesty.
During the hearing the Respondent stated that the match between Ulinzi and Emyba Basketball Clubs was forfeited. They supported the position presented by the 4th Interested Party and on a balance of convenience he insisted that Ulinzi and Kenya Ports Authority are heroes of the country and believe in honesty.
41.Mr. Asembo claimed that the parties were forum shopping, no proper evidence had been adduced before courts and that the documents presented had been manufactured by the parties. He stated that it is the Respondent who should be complaining about forged documents and not the Petitioner.
42.He also prayed that the Application and Petition be dismissed.
43. The Respondent did not file written submissions.The 1st Interested Party’s Response
44.Whilst the 1st Interested Party attended the hearing session, they stated that they would not file any written submissions
The 2nd Interested Party’s Response
45.They submitted that the Respondent claimed that EMYBA forfeited the game that was scheduled for 27th November 2021 and it is in the same game that the Respondents claimed that Valentine Nyakinda played. They/2nd Interested Party further submitted a sworn affidavit dated 13th April 2022 by Mr. Robert Andiwo, the Assistant Team Manager of EMYBA, wherein he stated that his team played the game as was scheduled and a score sheet was issued for the same and that during the game, Valentine Nyakinda did not play.
46.They submitted that in their attempt to inquire about the said game, they wrote an email to the Respondent inquiring about the eligibility status of the said Valentine Nyakinda. The Respondent sent an email and attached the games allegedly played by Valentine Nyakinda.
47.They further submitted that the Petitioner produced a copy of the fraudulent score sheet by the Respondent which indicated that Emyba was absent, where the Respondent forged the signature of the officials to pass it off as the true score sheet. They stated that the Petitioner went ahead and produced copies of the true score sheet. They stated that the Respondent acted fraudulently to the advantage of Ulinzi Basketball Team despite being mandated to act fairly towards all teams.
48.They submitted that Valentine Nyakinda was not eligible to play in the play offs. They further submitted that the Respondent failed to bring to the knowledge of the Tribunal the score sheet of that particular game thus failing to prove that Valentine Nyakinda indeed played at least three games in the regular season. They prayed that this Tribunal finds Valentine Nyakinda not eligible to play in the playoffs and that the Respondent and the 1st Interested Party do face the consequences laid down by the law.
49.Through Mr. Quintos, they confirmed that they honoured the fixture against Ulinzi Basketball Club and that the match was played.
50.In conclusion, they submitted that they, together with the Petitioner, have proven their case on a balance of probabilities and beseech the Tribunal to find that the actions by the Respondent were fraudulent and manipulative.The 3rd Interested Party’s Response
51.The 3rd Interested Party, via a Replying Affidavit dated 21st April 2022, sworn by Mr. Christopher Kinywa, the Treasurer of the 3rd Interested Party, stated that he concurs with the Petition and the sworn affidavit of Mr. Dennis Opiyo Achiego.
52.He produced copies of the 3rd Interested Party’s correspondence with the Respondent complaining about the eligibility of Valentine Nyakinda who was fielded in the playoffs without playing in the regular season as provided in clause 7 (e) of the League and Competition Rules. Mr. Kinywa stated that he knew the Assistant Team Manager of Emyba who swore an affidavit confirming that the game was played, and that Valentine Nyakinda did not play the game for Ulinzi. He averred that the Respondent had manipulated the league fixture results through making false entries into the official score sheet.
53.The 3rd Interested Party expressly stated that the facts contained in the affidavit of Mr. Robert Andawo, the Assistant Team Manager of Emyba dated 13th April 2022, have not been challenged by the Respondent.
54.He said that the 3rd Interested Party made email communication to the Secretary of the Respondent requesting him to address the claims of gross fraud that were highlighted in the various email communication that they wrote.
55.He stated that the Respondent through their Secretary responded via email advising them that if they were still interested in the case as an official protest, they should do so based on the league and competition rules.
56.He stated that the Respondent indicated via a letter dated 04/02/2022 the fraudulent dates and scores of Valentine Nyakinda intending to cover their tracks and claim that Valentine Nyakinda played in at least three games in the regular season. He also stated that the Team Manager of Emyba Basketball Club, Mr. Robert Andiwo swore an affidavit stating that Emyba did not forfeit any game scheduled for 27/11/2021 in the regular season and that the match was played as scheduled, and he further swore that Valentine Nyakinda did not play for Ulinzi Basketball Team in that game.
57.He further stated that the 3rd Interested Party sent a demand letter through their advocates on record to the Respondent. The Respondent responded to their letter stating that they had been busy preparing the National Team that was set to leave for Senegal therefore making it impossible to comply but requested for 7 days to comply. He also stated that they gave a reply to the response of the Respondent agreeing to allow them the 7 days to compile the report. He also stated that the Respondent did not keep their word.
58.He stated that the Respondent contravened the laid down law on the eligibility of a registered player to play in the playoffs by fielding Valentine Nyakinda in the league playoffs yet he had not played in at least three matches in the regular season.
59.He concluded by stating that the Respondent acted fraudulently by manipulating league fixtures results through making false entries into the official score sheets.
60.The 3rd Interested Party also filed submissions dated 04/05/2022.They responded to the Petition vide a Replying Affidavit of Mr. Christopher Kinywa where he concurred with the Petition and its supporting affidavit.
61.It is the 3rd Interested Party’s case that, Valentine Nyakinda, did not play in at least three matches in the regular season and therefore was in no way qualified to play in the playoffs.
62.Further, Mr. Christopher Kinywa stated that he knew that the Assistant Team Manager of Emyba Basketball team, the 2nd Interested Party swore an affidavit stating that Emyba did not forfeit any game scheduled for 27th November 2021 and the game was played as scheduled. The 3rd Interested Party claimed that the Respondent acted fraudulently by manipulating league fixture results through making false entries into the official score sheet.
63.The issues they sought to be determined were;i.Whether the Respondent’s actions were fraudulentii.Whether Valentine Nyakinda was eligible to play in the playoffsiii.Whether standard of proof for fraud should be beyond reasonable doubt
The 4th Interested Party’s Case
64.They/KPA Basketball Club insisted that they were the rightful winners after spending a lot of money to prepare for the games. They stated that as much as they want justice to be served, it would be expensive to restart the games as they remain subject to audit practices.
DISCUSSION
65.The Panel notes that it has carefully considered the entirety of the Parties’ pleadings, written submissions, statements, oral arguments and testimonies including those tendered at the hearing. The Panel relies below on evidence which it deems necessary to decide the case.
Jurisdiction:
66.The Sports Disputes Tribunal obtains its jurisdiction from Section 58 of the Sports Act No. 25 of 2013 and has inherent power to hear sports related disputes that all parties to a dispute agree to refer to the Tribunal and the Tribunal agrees to hear.
67.The Sports Act an Act of parliament passed as such to harness sports for development, encourage and promote drug-free sports and recreation; to provide for the establishment of sports institutions, facilities, administration and management of sports in the country, and for connected purposes.
68.Sports have grown into a very competitive industry with global pervasiveness. The importance of the preamble to the Sports Act cannot be understated.
Analysis:
69.The Petitioner is a member of the public as averred in the Affidavit in support of the Petition. The Respondent, being the custodian to oversee basketball activities in the country and not a private entity, is accountable to the public with regards to its actions. Any action, inaction or misconduct on the part of the Respondent affects the public’s participation in the sport of basketball, therefore its conduct is subject to public scrutiny and it must therefore be accountable to its stakeholders and the public. The Petitioner is rightfully before this Tribunal.
70.The Respondent is an organization established and derives its authority under the Sports Act No. 5 of 2013 Laws of Kenya. The objects of the Federation as provided under the Kenya Basketball Federation are: -a.To control, regulate, supervise and direct, and to foster, encourage and advance the sport of basketball and the practice of men’s and women’s basketball in all its forms and in all age groups countrywide.b.To foster friendly relations among members, officials, players and supporters of the Federation through proper organization and playing of basketball at all levels.c.To exercise control over basketball by taking such steps as shall be deemed necessary for preventing infringements of this constitution and/or regulations, rules, standing orders, laws of the game as laid down and amended from time to time by the F.I.B.A. or the Federation and to prevent the introduction of other improper practices into the sport and to protect it from abuses.d.To prevent racial, tribal, religious, political or any other discrimination or any improper distinction among members, players and clubs: all members, players and clubs shall adhere to this clause.e.To formulate or adopt and implement appropriate policies, including policies in relation to the control and management of the men’s and women’s national basketball teams, sexual harassment, equal opportunity, equity, drugs in sport, health, safety, infectious diseases and such other matters as arise from time to time as issues to be addressed in basketball;f.To allot and control the conduct and administration of all official competitions at national team and club level; to license and/or endorse the conduct and management of national basketball competitions or games where this is in the interests of furthering its mission and role;g.To pursue through itself or other such entity commercial arrangements, including sponsorship and marketing opportunities and commercial arrangements in relation to the Federation’s Intellectual Property, as are appropriate to further its mission and role;h.To do all that is reasonably necessary to enable its mission and role to be achieved and to enable the members and Clubs to receive the benefits which the Federation’s mission and role are intended to achieve; to co-operate with, join with, or support any association, organization, society or individual where the activities or purposes are similar to those of FIBA or which advance basketball throughout or in specific parts of the world;i.To undertake and or do all such things or activities as are necessary, incidental or conducive to the advancement of its mission and role.
71.The Petitioner is a member of the public. The new Constitution of Kenya 2010 brought new avenues for freedom of expression, and empowered citizens to challenge public bodies, government policies et al, through the courts in challenging policies and actions deemed to be oppressive. Such action has been critical in testing, clarifying and shaping law, policy and practice in societies across Kenya and the globe at large. Democratic space has been expanded and we find ourselves in such a situation with the current case. The Petition as filed by the Petitioner is properly so before this Tribunal. In the Civil Appeal case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR the Judge averred that, “The standard guide for locus standi must remain the command in Article 258 of the Constitution, which provides that every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention”. In addition to a person acting in their own interest, court proceedings as such may be instituted by—a.a person acting on behalf of another person who cannot act in their own name;b.a person acting as a member of, or in the interest of, a group or class of persons;c.a person acting in the public interest; ord.an association acting in the interest of one or more of its members.”
72.By dint of Articles 22 and 258 of the Constitution, any person can institute proceedings under the Bill of Rights, on behalf of another person who cannot act in their own name, or as a member of, or in the interest of a group or class of persons, or in the public interest. However, persons who move the court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice.As was stated by the Supreme Court of India in the case of S.P. Gupta v President of India & Others AIR [1982] SC 149:
73.Further, this Panel associates itself with CAS OG 22/07 Jazmine Fenlator-Victorian v. International Bobsleigh & Skeleton Federation (IBSF) Para 90 where the panel noted that, “[…]according to CAS jurisprudence, the applicant must have a protectable interest (CAS 2013/A/3140 para. 8.3) or a legitimate interest (CAS 2015/A/3880 para. 46 with further references) to have standing. This is the case if (i) the applicant is sufficiently affected by the impugned decision and (ii) a concrete interest of a financial or sporting nature is at stake (CAS 2015/A/3880 para. 46 with further references; see in this sense also CAS 2013/A/3140 para. 8.3; CAS2014/A/3665,3666 & 3667 para. 47; CAS 2015/A/3959 par. 143 et seq.). Sufficient interest is a broad, flexible concept without undesirable rigidity and includes whether the complainant can demonstrate a sporting and pecuniary interest (CAS 2008/A/1674 para. 11).” our emphasis.
74.The Issues to be determined by the panel are: -a.Whether the Kenya Basketball Federation game between Ulinzi Basketball Club and Emyba Basketball Club was played on 27th November 2021 and subsequently what the true score sheet was;b.Whether the Respondent Violated League and Competition Rules with regard to the qualification of teams for the men’s 2021 Kenya Basketball Federation Premier League playoffs;c.Whether the Petitioner is entitled to any of the reliefs sought in this Petition.
a. Whether the Kenya Basketball Federation game between Ulinzi Basketball Club and Emyba Basketball Club was played and whether Mr. Valentine Nyakinda featured in said 27th November 2021 game:-
75.We have set out herein above the summary of the cases made and evidence adduced by the Petitioner and the 2nd and 3rd Interested Parties in this case. It has indeed been the Petitioner’s case that Valentine did not play the game between Ulinzi and Emyba on 27th November 2021. It has been the Petitioner’s firm assertion that actually the game was played on 27th November 2021.
76.The Respondent alleged that the said regular season match between Ulinzi Basketball Club and Emyba Basketball Club was forfeited by Emyba Basketball Club after they failed to turn up for the match. However, according to the sworn affidavit of Mr. Robert Andiwo, the Assistant Team Manager of Emyba Basketball Club, he avers that his team played with Ulinzi Basketball Club during the regular season on 27th November 2021 and a score sheet was issued to them for the same. He confirmed that he was present during the match played between Emyba Basketball Club and Ulinzi Basketball Club and that Valentine Nyakinda did not play that match, as evidenced by the score sheet marked DAO 4, and that it is not true that his team forfeited the match with Ulinzi Basketball Club as alleged by the Respondent.
77.Mr. Christopher Kinywa, the Treasurer of the 3rd Interested Party stated that when they made a complaint on the authenticity of the score sheet marked DAO 3 that shows a walkover between Ulinzi and Emyba, the Respondent failed to address the matter satisfactorily. The aforementioned issues raised under oath by some its stakeholders leave the Respondent in a very awkward position. The mere existence of different score sheets purporting to show different results regarding the same match does not augur well as read together with the Respondent’s stated responsibilities. More so, after an affected stakeholder tabled evidence that they had sought clarity on the serious malfunction from the Respondent and thereafter after sufficient time was sought for and granted to the Respondent, no report was proffered to the affected stakeholder.
78.The Respondent denied the allegations leveled against them by the Petitioner and stated that the Petitioner is merely making assertions not supported by any evidence and that there is no evidence produced by the Petitioner linking the Respondent to any violation of any of the Rules. He avers that the Player Valentine Nyakinda was properly signed by the 1st Interested Party in October 2021 being an international player transfer from Rwanda and represented them in Africa’s Continental Top Clubs ‘Competition-BAL within Clause 5 of the Rules.
79.The Respondent further stated that the participation and fielding of the Player Valentine Nyakinda by the 1st Interested Party in the League Season and playoffs was lawful and legitimate and affirmed that the said player fulfilled the three games regular season rule under 7(e) which he asserts was complied with fully.
80.The Panel notes with concern, the existence of different score sheets carrying conflicting match information regarding an elite competition like the Kenya Basketball Federation men’s league. We must remind the Respondent of the objects as spelled out by the Kenya Basketball Federation that are aimed at safeguarding the integrity of the sport in this country. The Respondent has to do all that it can to meet its undertaking and or do all such things or activities as are necessary, incidental or conducive to the advancement of its mission and role.
81.From the extensive pleadings of the parties, it is evident that the Respondent has not controverted the evidence adduced by the Petitioner. Hence the Panel is satisfied by the evidence adduced before the Tribunal that the match between Ulinzi and Emyba did actually take place and was not a ‘walk-over’ as argued by the Respondent during the hearing.
82.Consequently, it is the Panel’s opinion that on a balance of probabilities, the Petitioner has made his case on that aspect.
b. Whether the Respondent violated League and Competition Rules with regard to the qualification of teams for the men’s 2021 Kenya Basketball Federation Premier League playoffs: -
83.In the Kenya Basketball Federation League and Competition Rules, see Rule 7(e), which provides that;
84.The Panel having accepted the Petitioner’s assertion that the match on 27th November 2021 was indeed played, is hereby then convinced that Valentine Nyakinda did not participate in the match on 27th November 2021 as his name was absent in the relevant official technical document presented to EMYBA Basketball Club after this particular match by the match officials, and which document Petitioner has tabled before this Tribunal.
85.From the foregoing, the match that was played on 27th November 2021 was to be the third match (regular season game) that would qualify Valentine Nyakinda to play in the men’s 2021 Kenya Basketball Federation Premier League playoffs. It is noteworthy that the 1st Interested Party has been completely silent with regards to the Petitioner’s allegations regarding this match, which then remain uncontroverted. Consequently, at least up until this match (27th November 2021), this was a pointer that Valentine Nyakinda did not meet the minimum requirement for eligibility to play in the playoffs in terms of Rule 7(e) of the League and Competition Rules.
86.In the absence of any evidence from the Respondent showing Ulinzi’s 2021 regular season match competition(s) that may have occurred between 27th November 2021 and 22nd January 2022, where their Player Valentine Nyakinda might have been fielded in order to bridge the gap to meet the minimum requirement for said 7(e) eligibility, it then follows that in the playoff match between Ulinzi Basketball Club and Lakeside Basketball Club, played on 22nd January 2022, Ulinzi Basketball Club fielded a player, one Valentine Nyakinda, who ought to have been disqualified thence from playing in the Playoffs; Valentine having not played at least three matches during the regular season, his inclusion in the Playoffs therefore was in violation of the provisions of the Respondent’s League and Competition Rules.
87.Be that as it may, the Petitioner together with the 2nd and 3rd Interested Parties have provided proof which on a balance of probabilities indicates that indeed Valentine Nyakinda was not present during the match played on 27th November 2021. Therefore, the Respondent was in violation of Rule 7(e) of the League and Competition rules by allowing an unqualified player to participate in the men’s 2021 Kenya Basketball Federation Premier League playoffs.
c. Whether the Petitioner is entitled to any of the reliefs sought in this Petition: -
88.The gravamen of this petition revolves largely on whether the game between Ulinzi and Emyba was played on 27th November 2021, whether the Respondent committed fraud, manipulated score sheets and forged signatures to favor one team to play in the league and in the process allowing Ulinzi Basketball Club to participate in the national men’s playoffs with a player who was unqualified to play in the said playoff’s contrary to the league and competition rules.
89.The evidential burden is the obligation of a party in a case to adduce sufficient evidence to raise an issue to the satisfaction of the tribunal hearing the case to enable the tribunal find the issue a matter that should be considered as being an issue for determination.
90.As to the burden of proof, the fundamental principle is based on the Latin maxim ‘ei qui affirmat, non ei qui negat, incumbit probatio’ applies, that is ‘the burden of proof lies upon him who affirms and not upon him who denies.’ In this case, therefore the burden lies with the Petitioner to prove the allegations made in the Petition. When considering whether the burden of proof has been satisfied, the Tribunal will consider the substance of the issues asserted.
91.The Tribunal has to determine, as against the Respondent, whether the Petitioner has been able first to establish that the acts or omissions complained of or alleged were indeed committed, and then secondly whether he has proved that these acts or omissions did affect either the outcome and/or validity of the competition. The Petitioner must establish these facts and discharge this burden before the Respondent is called upon to respond. For the first part of the burden of proof, section 107 of the Evidence Act applies which stipulates:
92.In the case of Mercy Kirito Mutegi v Beatrice Nkatha Nyaga & 2 others [2013] eKLR, the learned judge averred;
93.The Panel is of the opinion that the Petitioner has done enough to discharge his burden of proof as supported by the 2nd and 3rd Interested Parties. The 1st Interested Party did not negate the facts as presented by the Petitioner and the Respondent failed to controvert satisfactorily the averments put to them.
94.In arriving at its conclusion the Panel is comforted by the observations in CAS OG 20/15 Yuberjen Martínez & Colombian Olympic Committee & Colombian Boxing Federation v. IOC Boxing Task Force at Para. 7.3.
Conclusion:
95.The Panel finds that the Petition has merit and imposes the following sanctions and orders in the following terms;a.That the Respondent has violated League and Competition Rules, in particular Rule 7(e), with regard to the qualification of teams for the men’s 2021 Kenya Basketball Federation Premier League playoffs.b.That the recently concluded men’s Kenya Basketball Federation League playoffs be and is hereby declared null and void.c.Further, the Tribunal invokes the provisions of Clause 10 (b) of the Kenya Basketball Federation League and Competition Rules, 21st Edition in declaring the result between Ulinzi Basketball Club and Lakeside Basketball Club null and void and automatically defaulted 20-0 in favour of Lakeside Basketball Club. Ulinzi Basketball Club shall be fined as may be determined by the Leagues Committee and ratified by the Executive Committee.d.The Respondent is ordered to restart the 2021 national men’s Kenya Basketball Federation playoffs based on the correct standings from the point immediately following the match between Ulinzi Basketball Club and Lakeside Basketball Club;e.The Respondent shall be responsible for meeting the costs incurred by the teams in respect of their participation in the playoffs;f.The Tribunal recommends investigations be done together with the relevant forensic/criminal authorities to reach a just conclusion on the matter of allegedly forged scoresheets.g.The costs of this claim be borne by the Respondent.
DATED AT NAIROBI THIS 15 TH DAY OF JUNE, 2022Allan Mola Owinyi, Panel ChairpersonE. Gichuru Kiplagat, MemberMary N. Kimani, Member
