(a) Procedural Posture
12.The protracted background to this matter is initialized, as stated by the Petitioner, by a decision of this Tribunal, delivered on December 3, 2019 in SDT 21 of 2020 where it determined that the elections carried out by the Football Kenya Federation, the 1stRespondent herein, were unconstitutional and antithetical to the requirements of the Sports Act, 2013.
13.A further related decision is that in SDT 3 of 2020 as consolidated with SDT 5 of 2021, the import of which the Petitioner alleges to be the nullification of the 1st Respondent’s intended elections as of March 17, 2020, while according to the Respondents the Tribunal in the decision established the legal status of the 1st Respondent.
14.The Petitioner, incensed by the manner of operations at the 1st Respondent, filed before the Tribunal Petition dated 30th July 2021 seeking orders as follows:a.An order restraining the 1st to 13th Respondents and their officials, employees, servants and/or agents from sending any names to the Confederation of African Football as representatives for the 201/22 CAF Champions League and CAF Confederations Cup.b.An order restraining the 15th to 17th Respondents and their officials, employees, servants and/or agents from disbursing public funds to the 2nd to 13th Respondents until the matter is heard.c.An order that the 15th to 17th Respondents cannot consider for approval and disbursement of any public monies to the 1st Respondent or any other sport entities without the affirmation that the 1st Respondent and other such entity is registered in accordance with section 46 of the Sports Act and is compliant with the law.d.An order that the 1st Respondent is not a legal entity for want of compliance to section 46 of the Sports Act 2013 and the Sports Registrars Regulation 2016 and accordingly lacks the mandate to run football activities in Kenya and the Sports Registrar is directed to strike out the 1st Respondent’s name from the register of sports organizations.e.An order that the 2nd to 13th Respondents have no legal mandate to run the affairs of the 1st Respondent and any decisions in pursuance of such mandate is invalid.f.Any contracts for sponsorship and/or partnership agreements with other entities made by the 2nd to 13th Respondents on behalf of the 1st Respondent between February 10, 2020 and the conclusion of the hearing and determination of this suit is invalid.g.An order that the County Sports Associations registered in accordance with section 46 of the Sports Act have the legal mandate to run football activities in their jurisdictions.h.An order that following the finding that 1st Respondent is not a legal entity its officials, employees, agents, and servants be restrained from making any decisions or correspondences concerning the running of football affairs in Kenya.
15.Accompanying the Petition and filed on the same date was a Notice of Motion application under a certificate of urgency praying for conservatory orders but in reality, sought the Tribunal’s hand in preliminarily overturning the decisions of the 1st Respondent as follows:a.An order staying the nominations of Tusker FC as representatives to the CECAFA Club Championships until the matter is heard.b.That the nominations of Tusker FC and Gor Mahia FC as Kenyan Representatives to the 2021/22 CAF Champions League and Confederation Cup are invalid until the hearing of this matter.c.A conservatory order prohibiting the 15th and 17th Respondents from disbursing public funds to the 2ndto 13thRespondents until the matter is heard.d.The 14th Respondent produces the register of all sport entities registered in accordance with section 46 of the Sports Act.e.The 15th and 17th Respondents produce all correspondence relating to the disbursement of public funds to the 1st Respondent upon inter parted hearing.
16.In response, the 1stto 13thRespondents coalesced and consolidated their right of reply in Replying Affidavit dated August 17, 2021 denying allegations of malpractice and defending the electoral processes of the 1st Respondent.
17.The 14th to 17th Respondents, on their part, replied vide Replying Affidavit dated September 27, 2021, seeking the cancellation of the County and National level elections for various electoral malpractices.
18.Additionally, the 1st Interested Party listed herein made an application to be included in this matter in such capacity on the 5th of October 2021, which application was granted by the Tribunal on the same day.
19.The 1stInterested Party weighed in vide the replying affidavit of one Kentice Tikolo sworn on the 19th of October 2021 summarily reporting that the elections were carried out in full adherence to the FKF Constitution of 2017, and in proof thereof attached the National Elections Summary Report, 2020.
20.The 2nd to 6th Interested Parties then applied by way of Chamber Summons application dated October 25, 2021 seeking inclusion on the basis of their statuses as County Sports Associations.
(i) The Petitioner’s Case
21.The Petitioner made a primary claim that the 1stRespondent, as constituted, is illegal for various reasons.
23.He further stated that the 1st Respondent’s elections carried out from February 10, 2016 and July 30, 2021 have not been filed with the Sports Registrar, the 14th Respondent herein, in prescribed form and within the prescribed timelines as per Rule 6 and 20 of the Sports Registrar Regulations, 2016.
24.Additionally, he alleged that the 1stRespondent had failed in its duty to both announce and conduct the grassroots elections four years after the county and national level elections were carried out.
25.The crowning indicator that the 1st Respondent is illegally constituted, according to the Petitioner, is that they currently hold a conditional certificate issued in May 2018 rather than a substantive certificate.
26.The Petitioner then surmised that as a result of the alleged non-adherence to the constitution of the 1st Respondent by its leaders, the actions done in such violation should also be invalidated inter alia:a.Nomination of Kenya’s representative teams contrary to article 24(a) of the FKF Constitution which requires that decisions affecting the top-flight league be subjected to a seating of the General Assembly and the non-compliance thereof to the tenets of public participation.b.Institution of branches which is negated by the fact that the 1st Respondent is not itself duly registered and cannot, therefore, establish administrative units in the form of branches.c.Inclusion of Article 27(5) in the FKF Constitution requiring elections to be carried out first at the national, then county and finally sub- county level offends the principles of elections in Article 81 of the Constitution of Kenya, 2010.d.Inclusion of Article 28(7) in the FKF Constitution which mandates the National Executive Committee with the powers to draft an electoral code which gives NEC members who may have an interest in elections an unfair advantage.e.Inclusion of article 11 (e) of the FKF Constitution which recognizes 48 instead of the 47 counties recognized nationally.f.Non-inclusion of the 48 counties alluded to in the Constitution instead including them in the electoral code.
27.He then dismissed FIFA’s recognition of the 1st Respondent’s officials arguing that in accordance with the court’s ruling in Robert Macharia v Sports Disputes Tribunal, HCJR 100 of 2020, FIFA statutes neither form part of Kenyan law as envisioned in Article 2(5) of the Constitution of Kenya nor supersede them.
28.While the 2nd to 13th Respondents are implicated in the Petitioner’s complaint due to their involvement as officials of the 1stRespondent, the 14th to 17th Respondents have been cited herein due to what the Petitioner terms tolerance of the 1st to 13th Respondents’ offence of the ‘letter and spirit of Kenyan law’ in paragraph 45 of the Petition.
(ii)The 1st to 13th Respondent’s Case
29.The Respondents, on the other hand, stated that the 1stRespondent is a legal body, particularly a national sports organization, as established in their Certificate of Registration No. 45 of May 24, 2018 and the decisions of this Tribunal in the cases of SDT No. 3 of 2020 as consolidated with SDT No. 5 of 2021.
30.They also alleged that the branch/county elections had been duly carried out and reported as exhibited by letter dated October 12, 2020 from the 3rd Respondent to the Sports Registrar, Miss Rose Wasike, at Page 10 of the Respondents’ bundle of documents.
31.To lend further credence to the electoral process, the 1st Respondent invited the Sports Registrar to attend the national elections taking place on the 17th of October 2020 which were successfully held, and the results submitted to the Sports Registrar vide letter dated October 16, 2020.
32.These were followed by a comprehensive report to the Registrar on the 23rd of October 2020.
33.They also attached as part of their exhibits the FKF Electoral Board Preliminary Results for the elective posts of FKF President, the Members of the National Executive Committee, and the National Officials.
34.This process, according to the Respondents, legitimizes any actions taken by the 1stRespondent in pursuance of its duty and consequently the obligations and liabilities incurred thereof.
35.Moreover, the 1st to 13th Respondents challenged the jurisdiction of the Tribunal to handle the question of infractions on the part of the 1st Respondent arguing that breaches whose magnitude and consequences would amount to the deregistration of the FKF, or the cancellation of its registration certificate must only be undertaken by the Registrar in accordance with section 51 of the Sports Act, the Fair Administration Actions Act, and Constitution of Kenya, 2010.
36.They thus summarily submitted that both the 1st Respondent and the 2nd to 13th Respondents were legitimate persons in law.
(iii) The 14th to 17th RespOndent’s Case
37.On their part, the 14th to 17th Respondents in their joint Replying Affidavit dated September 27, 2021 conceded that the Sports Registrar had indeed issued a conditional certificate of registration to the 1st Respondent, nevertheless noting that the 1st Respondent was expected to transit to a registered national sports organization under section 50 of the Sports Act.
38.Their failure to do so, therefore, meant that the action of conducting elections in 2016 and any other election before the issuance of the certificate of registration on the 24th of May 2018 was invalid in law.
39.While the 1st Respondent was eventually issued with Registration Certificate No. 45 on May 24, 2018, the 2020 elections carried out thereafter were observed by the 14th Respondent as having been marred by irregularities including failure to file Election Returns for County elections, use of non-registered sports clubs to vote in County Officials, and use of non-registered County Sports Associations to vote in national officials.
40.The 14th Respondent concluded that she could not then vouch for the credibility of the concerned elections.
41.The same concerns are seen to have been reflected in the Sports Registrar’s letter dated March 30, 2021 expressing that in addition to the electoral irregularities noted in the September 27, 2021 replying affidavit adding that the FKF failed to submit clearance certificates for vying candidates to the Registrar, to register Football Clubs participating in leagues and County Sports Associations, and to have the FKF Constitution amended to be in alignment of the Sports Act, Sports Registrar Regulations and the FIFA Statutes.
42.The 14th Respondent’s recommendation was then that the FKF either repeat the entire election process or in the alternative, the Sports Cabinet Secretary invokes the power under section 54 of the Sports Act to appoint a Normalization/Independent Committee of persons not involved in the FKF wrangles with the mandate of correcting the deficiencies in the FKF in the following terms:a.Registering unregistered County Football Associations and sports clubs.b.Amend the FKF Constitution to be in line with other relevant laws.c.Develop strategic plans for the federation.d.Submit yearly audit reports to the Sports Registrare.Redo the election process at both county and national levelsf.Submit reports of milestones to the Sports Registrar.
43.As is clear from the averments in the 27th of September 2021 Replying Affidavit, the FKF did not undertake to implement the recommendations of the Sports Registrar as at the time of this case’s filing on the 30thof July 2021.
44.Further, the 14th to 17th Respondents alleged that the non-credibility of the elections is also attested to by the IEBC Election Returns and the Sports Registrar’s Observation report.
45.They consequently contradicted the 1st to 13th Respondents’ allegations that the Registrar observed the county elections stating that the same was not done and neither were the Election Returns received.
46.To the contrary, it was the 14th to 17th Respondents’ submission that the 1st Respondent together with its county branches had also allegedly failed to fill Form R and to notify the Registrar of the newly elected officials within twenty-one days of the elections as required in Paragraph 20 (4) of the Sports Registrar Regulations of 2nd September of 2016.
47.They then recommended that whilst it would be imprudent to deregister FKF as an organization per the Petitioner’s prayers, it would be proper to cancel the national and county elections due to the use of non-recognized persons and non-registered organizations to vote in officials and the 1st Respondent’s non-adherence to various legal provisions under the Sports Act.
(iv) The 1st Interested Party’s Case
48.On behalf of the interested party, a replying affidavit was sworn on the 19th of October 2021 by one Kentice Tikolo.
49.The position of the interested party therein was that this matter is actually res judicata and the issues therein are inviting the Tribunal to recanvass matters that have been previously comprehensive considered and finally determined by the Tribunal.
50.To ground this position, the interested party cited the case of Sam Nyamweya and Others v FKF Electoral Board & Others, SDT Petition No. 10 of 2020 where it had allegedly responded to a similar petition detailing the process leading up to the FKF National Elections undertaken on the 17th of October 2020.
51.In the same line, the interested party affirmed all persons who had participated in the FKF County and National Elections held on the September 19, 2020 and October 17, 2020 respectively were member s of the 1st Respondent as per its constitution.
52.As to the question of returns, the deponent stated that he had personally made a formal return to the Sports Registrar which correspondence is dated October 23, 2020.
53.The same was annexed as his evidence and marked KT2.
54.The Sports Registrar would then respond and note that the report had been submitted in time.
55.In what has been interpreted by this Tribunal as a challenge to its jurisdiction, the interested party accused the Petitioner of failing to first approach the internal mechanisms highlighted in the electoral calendar as being available to any party who was aggrieved by the electoral process.
56.The same infraction was alleged to have been committed by the Sports Registrar who had been present at the national elections as an observer but failed to raise the issues deponed herein.
57.To the concern on the nominations made for the elections, the interested party pointed out that it had indeed published the names of those cleared to vie in the elections on the 1st Respondent’s website and it was, therefore, at all times available for inspection and interrogation.
Issues for Determination
64.Having carefully read the pleadings and submissions by the parties, the Tribunal finds the following issues arising for determination:a.Whether the suit is defeated by preliminary questions of law inter alia jurisdiction and locus standi as raised by the 1st to 13th Respondents and Res Judicata as raised by the 1st Interested partyb.Whether the FKF branches are illegal entities and accordingly lack the mandate to run football activities in counties with the Republic.c.Whether Articles 11 (e), 27(5) and 28(7) of the 1st Respondent’s Constitution of 2017 are invalid by virtue of contravention of the Sports Act and the Constitution of Kenya 2010.
(a)Whether the suit is defeated by preliminary questions of law, namely jurisdiction and locus standi as raised by the 1st to 13th Respondents and Res Judicata as raised by the 1st Interested party
65.The question of jurisdiction is no foreign one to this Tribunal as it has been canvassed in a good number of its decisions.
66.Contrary to the assertion of the Petitioner in his skeletal submissions dated 23rd day of May 2022 that the jurisdiction of the Tribunal is uncontested, such contest is seen in the 1st to 13th Respondents’ Replying Affidavit dated August 17, 2021 at paragraphs 7 and 14.
67.The first point of reference in this matter is, without doubt, the establishing portion in the Sports Act, particularly section 58 which broadly highlights the jurisdiction of the Sports Disputes Tribunal in the following terms:The Tribunal shall determine—(a)appeals against decisions made by national sports organizations or umbrella national sports organizations, whose rules specifically allow for appeals to be made to the Tribunal in relation to that issue including—(i)appeals against disciplinary decisions;(ii)appeals against not being selected for a Kenyan team or squad;(b)other sports-related disputes that all parties to the dispute agree to refer to the Tribunal and that the Tribunal agrees to hear; and(c)appeals from decisions of the Registrar under this Act.
68.The challenge to the Tribunal’s jurisdiction being on the basis that the Petitioner should have approached the Confederation of African Football internal mechanisms on the question of the 1st Respondent’s nomination of Kenya’s representatives to the CAF Champions League, it behooves this Tribunal to interrogate whether approaching the CAF was a channel available to the Petitioner.
69.It is not lost to this Tribunal ’s mind that the CAF Statute clearly anticipates and provides avenues for dispute resolution in Article 46 of its Statutes.
70.However, the wording of Article 46 (1) reserves the CAF dispute resolution mechanisms to “disputes with CAF or other Associations, clubs or members of clubs”, an exclusive group among whom the Petitioner does not fall and would thus be misplaced were he to approach the CAF.
71.Moreover, closer attention is to be paid to Article 1(2) of the same statutes which describes the CAF in the following terms:
73.For this reason, it is prohibitive to require the Petitioner to approach an international body that not only fails to recognize his kind of dispute but also lacks a binding persona in so far as the nature of its decisions is concerned.
74.The Tribunal thus finds that it indeed has jurisdiction to hear this matter as the most available legally recognized channel in Kenya for the present dispute.
(a)(ii) Locus Standi
75.The challenge to the Petitioner’s locus standi is, in the 1stto 13th Respondents’ words, that the Petitioner “is not a member of FKF and…he has no interest in matters football. As a matter offac t, he is not engaged in any football activity within the territory of Kenya…or anywhere else”.
76.This is an unfortunate tribute to the old regime on public interest litigation where, according to the holding in Wangari Maathai v Kenya Times Media Trust Ltd  eKLR, the courts and other quasi-judicial bodies would strike out legitimate causes of action where the litigant did not appear to have any special or direct interest in the subject matter.
77.The holy grail for individuals willing to stand up for group interests by instituting causes came in the form of the Constitution of Kenya, 2010, Article 22 of which provides that:
79.This Tribunal is bound by the principles guiding the exercise of judicial authority captured in Article 159 of the Constitution to lend ear to claims before it and thus declares the Petitioner to have the requisite locus standi.
(a)(iii) Res Judicata
80.The principle of res judicata is, as rightly put by the interested parties, on the public policy that litigation must at some point come to an end.
81.For this reason, the courts have time and again disallowed counsel from litigating afresh matters that have been previously canvassed and settled in judgement.
84.In this instance, the objection of res judicata was raised in the 1st Interested Party’s replying affidavit dated October 19, 2021 in paragraph 6 where it was alleged that the matters in this petition were disposed off by this Tribunal in SDT 3 & 5 of 2020.
85.An interrogation of the relevant decision reveals that the issues concerning the status of the 1st Respondent’s branches, the body’s constitution, and the elections carried out nationally were extensively canvassed.
86.However, this Tribunal is of the opinion that the present case has distinguished the issues to the extent that it seeks to ascertain the status of the branches after the dissolution of the 1st Respondent and the constitutionality of specific provisions of the 1st Respondent’s Constitution, which distinguished issues were not addressed in SDT 3 & 5 of 2020.
87.These two issues are thus held not to be re judicata and will thus be addressed in this decision.
(b) Whether the FKF branches are illegal entities and accordingly lack the mandate to run football activities in counties with the Republic.
89.The Sports Act is categorical in stating that no body can operate as a sports organization in the Republic unless it is registered under the Sports Act, an assertion found in section 46 (1) of the Sports Act.
90.Section 46 (2) is narrower as it prescribes a restricted class of bodies that can be registered as sports organizations in the following terms:1a sports club;ii.a county sports association ; oriii.a national sports organization.
91.As per the previous holding in Football Kenya Federation v Sports Registrar & 64 Others (SDT Case No. 3 of 2020 as consolidated with SDT Case No. 5 of 2020), the nature of the branches of the FKF are recognized in law as either the county sports associations in section 46(2) (ii) of the Sports Act or administrative entities which are recognized in their own right in various sections of the Act.
92.Requirements of registration for the recognition of such County Sports Associations are to be found in Regulation 4(3)(c) of the Sports Registrar Regulations, 2016.
93.In paragraph 83 of the highlighted decision, however, the Tribunal appreciated the fact that the government had failed to facilitate the registration and operationalization of the proposed incorporated County Sports Associations, which appreciation led to the Tribunal contrasting on the one hand the establishment of branches as County Sports Associations which requires the registration envisioned by the Registrar, and on the other hand the establishment of branches as administrative units of the branches as devolved administrative units of the national football federation which does not require registration. 94.In this instance, the Tribunal recalls its observations in the judgement of Football Kenya Federation v Sports Registrar & 64 Others (SDT Case No. 3 of 2020 as consolidated with SDT Case No. 5 of 2020) where in paragraph 47 the Tribunal recorded that the branches of the 1st Respondent had been established by the 18th of November 2017 FKF Constitution which recognized branches in each of the 47 counties plus an additional one forming from the split of Nairobi into two branches.
95.Question then arises concerning what functions the branches have established in the FKF Constitution carry out regarding sports in the Republic.
96.An analysis of the FKF Constitution, particularly Article 19, Article 35(1) and Article 89(1) reveals that the branches established therein are assigned exclusively administrative duties.
97.As per the decision of the Football Kenya Federation v Sports Registrar & 64 Others (SDT Case No. 3 of 2020 as consolidated with SDT Case No. 5 of 2020) branches with such administrative functions draw their legitimacy from the national federation and therefore need not formally register.
98.Registration would be required if the branches were carrying out ‘operation as a sports organization’, defined in Section 2 of the Sports Act in the context of ‘national sports organization’ as responsibility for all sports disciplines or recreational bodies or responsibility for a particular sport and ‘sporting event’ as a sporting contest, competition, tournament, or game open to participation and attendance by the public.
99.As is clear from the Tribunal’s assessment of the FKF Constitution above, the branches contested by the Petitioner are legitimately in existence and will continue to be for as long as they merely operate as administrative bodies of the national federation.
100.Their nature is also not negated by the 1st Respondent’s disbandment by notice of the Cabinet Secretary for Sports nor the contestation of the election of the branches’ officials as the branches themselves were established as administrative bodies in the FKF Constitution which remains in force.
101.The further contestation of the Petitioner that the failure to list the branches of the FKF in its constitution subjects their existence to abuse and mischief, which mischief has not been particularized, is unfounded and ignorant of the FKF’s equation of the branches to the nationally recognized counties with the exception of Nairobi County which constitutes two branches.
102.Note should be taken that the High Court in Constitutional Petition No. 473 of 2021 did not delve into the specificities of the nature and functions of the branches established in the FKF Constitution and the lex specialis on this question remains this Tribunal ’s decision in SDT 3 & 5 of 2020.
103.The upshot of this is that the registered County Sports Association may also operate as sports organization drawing their legitimacy from section 46 of the Sports Act while the unregistered branches may only operate as administrative units drawing legitimacy from the FKF Constitution.
(c)Whether Articles 11 (1) (e), 27(5) and 28(7) of the 1st Respondent’s Constitution of 2017 are invalid by virtue of contravention of the Sports Act and the Constitution of Kenya 2010.
104.Since the Petitioner did not outline particular provisions of the Sports Act contradicted by the FKF Constitution, the Tribunal will in this instance restrict itself to examination of the particular articles of the Constitution of Kenya alleged to have been disregarded by the FKF Constitution.
105.Article 11 (1) (e) of the FKF Constitution is contested in the case for being in contravention of the Kenyan Constitution which provides for 47 Counties as well as the Sports Act.
106.The question that this Tribunal is then called to answer is whether the 1st Respondent’s decision to have an additional branch in Nairobi County is fatally defective to the point of rendering the particular provision unconstitutional.
108.The object of the FKF Constitution in establishing the FKF branches is quite clearly the need forgroundroot administration by the national body, a purpose which seemingly necessitate the existence of two points of administration in the county of Nairobi specifically.
109.As to the effect of the additional administrative unit in Nairobi, the Tribunal cannot, try as it may, identify any mischievous ends to be met by the existence of an additional administrative unit in Nairobi other than effective management and organization of the football sport in the rather large and busy county.
110.The Tribunal thus finds that the additional unit in the FKF branches is necessary for expedient management of football in the country and does not in any way contradict the supreme law in Kenya.
111.With regard to Article 27 (5) of the FKF Constitution, it is the Petitioner’s contention that the same provision offends the principles for the electoral system as provided in Article 81 of the Constitution of Kenya.
112.It was the Tribunal’s perspective that the making of an informed decision on this matter would benefit from a side to side reading of the two provisions which read as follows:
113.After faithfully applying the statutory interpretation mechanisms, the Tribunal concludes that the order of elections as set by Article 27 (5) of the FKF Constitution does not in any way offend the general principles governing the electoral systems in Kenya as provided in the Constitution of Kenya.
114.Finally, the Petitioner alleges that Article 28 (7) of the Constitution of the 1st Respondent providing that “the National Executive Committee shall draw up an electoral code governing the procedure, conduct of elections and eligibility thereof” offends the principles of elections under Article 81 of the Constitution of Kenya 2010 by giving an unfair advantage to NEC members who may have interest in the elections. This undue advantage is a violation of natural justice.
115.Once again, a side-by-side comparison of the two provisions reveals no violation is likely to be occasioned to Article 81 of the Constitution of Kenya.
116.Indeed, suggesting that the current representatives should not define the electoral code as it would be skewed in their favour is akin to suggesting that no National Parliament should ever draft an Election Act for the reason that it would be biased.
117.The challenges to the FKF Constitution in the present petition are hence found to be without merit.