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Muhoroni Youth Football Club & another v FKF Transition Committee IDAC & 6 others; Shabana Football Club & 3 others (Interested Parties) (Tribunal Case E026 & E027 of 2022 (Consolidated)) [2022] KESDT 766 (KLR) (Civ) (4 October 2022) (Decision)
Neutral citation:
[2022] KESDT 766 (KLR)
Republic of Kenya
Tribunal Case E026 & E027 of 2022 (Consolidated)
John M Ohaga, Chair, E. G. Kiplagat & Gabriel Ouko, Members
October 4, 2022
Between
Muhoroni Youth Football Club
Applicant
and
FKF Transition Committee IDAC
1st Respondent
FKF Transition Committee
2nd Respondent
Fortune Sacco Football Club
3rd Respondent
Zoo Football Club
4th Respondent
General (Rtd.) Oyugi
5th Respondent
Linda Ogutu
6th Respondent
and
Shabana Football Club
Interested Party
Murang’a Seal Football Club
Interested Party
Wazito Footbal Club
Interested Party
As consolidated with
Tribunal Case E027 of 2022
Between
Murang’a Sports Excellence Academy Limited t/a Murang’a Seal FC
Applicant
and
FKF Transition Committee
Respondent
and
Shabana Football Club
Interested Party
Fortune Sacco Football Club
Interested Party
Decision
PANEL
1.Mr. John M. Ohaga, SC, CArb - Chairperson
2.Mr. Edmond Kiplagat - Member
3.Mr. Gabriel Ouko - Member
Appearances
DIVISION - AbbreviationsPARA 1.FKF Football Kenya FederationPARA 2.FKFCC Football Kenya Federation Caretaker CommitteePARA 3.FKFTC Football Kenya Federation Transition CommitteePARA 4.FKFIDAC Football Kenya Federation Independent Disciplinary and Appeals CommitteePARA 5.FIFA Fédération Internationale de Football Association
1.Mr. Munyua Ezekiel for the Applicant in E026 of 2022
2.Mr. Fracia Mwaniki for the 1st Interested Party in E026 of 2022 and E027 of 2022
3.Mr. Edward Rombo and Ms. Shitubi for the 1st, 2nd, 5th, and 6th Respondents in E026 of 2022 and the Respondents in E027 of 2022
4.Mr. Ken Ochieng for the 3rd and 4th Respondents in E026 of 2022 and for the 2nd Interested Party in E027 of 2022
ContentsPanel..................................................2Appearances............................................2Abbreviations..........................................3PARTIES................................................4FACTUAL BACKGROUND.....................................5PROCEDURAL BACKGROUND..................................7PLEADINGS..............................................9The Petitioner’s case in E026 of 2022..................9The 1st, 2nd, 5th and 6th Respondents’ case in E026 of 2022......................11The case for Fortune Sacco Football Club...............13The case for Zoo FC....................................14Petitioner’s case in E027..............................15The case for the Respondent in E027....................17ISSUES FOR DETERMINATION...............................18Whether this Honourable Tribunal has jurisdiction to determine this matter?.................................18Whether the decision of the FKF Independent Disciplinary and Appeals Committee on 19th July 2022 should be upheld?.20Whether the FKF Independent Disciplinary and Appeals Committee as constituted meets the threshold under the FKF Constitution?......................................20Whether the decision of the FKF Independent Disciplinary and Appeals Committee on 19th July 2022 should be upheld?................................................24Whether Zoo FC should have participated in the FKF NSL 2021/22 season?........................................29ORDERS.................................................30
6.NSL National Super League
A. PARTIES
1.The Applicant in E026 of 2022, Muhoroni FC, is a football club based in Muhoroni, Kisumu County and registered under the Sports Act No. 25 of 2013.
2.The 1st Respondent in E026 of 2022 is a judicial body established under Article 64 of the Constitution of Football Kenya Federation, 2017.
3.The 2nd Respondent in E026 of 2022 is a Committee appointed by the Cabinet Secretary for Sports, Culture and Heritage under Section 54 of the Sports Act No. 25 of 2013 on 13th May 2022 vide Gazette Notice No. 5518. It is also the Respondent in E027 of 2022.
4.The 3rd Respondent is an amateur football club based in Kirinyaga County and registered under the Sports Act No. 25 of 2013. It is also the 2nd Interested Party in E027 of 2022.
5.The 4th Interested Party is a professional football club based in Kericho County and registered under the Sports Act No. 25 of 2013.
6.The 5th Respondent was appointed as the Chairperson of the Football Kenya Federation Transition Committee by the Cabinet Secretary for Sports, Culture and Heritage on 17th June 2022 vide Gazette Notice No. 7005.
7.The 6th Respondent was appointed as the Head of Secretariat of the Football Kenya Federation Transition Committee by the Cabinet Secretary for Sports, Culture and Heritage on 17th June 2022 vide Gazette Notice No. 7005.
8.The 1st Interested Party in both E026 and E027 of 2022 is an amateur football club based in Kirinyaga County.
9.The 2nd Interested Party is a professional football club based in Muranga County registered under the Sports Act No. 25 of 2013. It is also the Petitioner in E027 of 2022.
10.The 3rd Interested Party is a professional football club based in Nairobi and registered under the Sports Act No. 25 of 2013.
B. FACTUAL BACKGROUND
11.The NSL Match No. 271 between Fortune SACCO FC and Shabana FC was scheduled for 1st June 2022 at the Kianyaga Stadium in Kirinyaga County at 3pm. Fortune SACCO FC was the host while Shabana FC was the visiting team.
12.From the match reports, it is noted that Shabana FC did not attend the pre-match meeting in which it was agreed that the kick-off time be adjusted to 4.00 pm occasioned by a Madaraka Day event which was being hosted at the venue.
13.On the material day, the event was concluded at 4.00 pm and the field of play was cleared and ready for the match by 4.15pm. However, the match could not kick off as the visiting team, Shabana FC, protested against the delay in kick off time and eventually the match officials called off the match.
14.The matter was taken before the FKF Transition Leagues and Competitions Committee, and a ruling was delivered on 1st July 2022. The Committee held that Fortune SACCO FC forfeited the match in favour of Shabana FC pursuant to rule 3.3.2 of the FKF Rules & Regulations 2019 which states that:
15.Consequently, the Transition Leagues and Competitions Committee awarded Shabana three (3) points and two (2) goals. This decision was appealed at the FKF Independent Disciplinary and Appeals Committee.
16.On 19th July 2022, the FKF Independent Disciplinary and Appeals Committee made its determination reversing the decision of the FKF Transition Leagues and Competitions Committee. It held that Shabana FC forfeited the match and awarded three points to Fortune SACCO FC on a 2-0 goal basis.
17.The decision was based on rule 3.2.2 of the FKF Rules and Regulations Governing Football which states that it is the decision of the referee to determine whether a match shall start or should be abandoned and a team which refuses to obey the instructions of the referee to start or resume a match abandons a match hence they shall forfeit the match.
C. PROCEDURAL BACKGROUND
18.Based on the facts above, the Applicant in E026 of 2022 filed before this Honourable Tribunal an application by way of Notice of Motion dated 25th July 2022 under Certificate of urgency seeking inter alia orders that the decision of the 1st Respondent on 19th July 2022 reversing the decision of the 2nd Respondent and awarding the 3rd Respondent the points was illegal null and void as it was based on misinterpretation of the FKF Rules and Regulations governing Kenyan Football.
19.On the other hand, vide an application by Notice of Motion dated 28th July 2022 which was also under certificate of urgency and accompanied by a Petition of an even date, Murang’a Seal FC, being the Petitioner in E027 of 2022, approached this Honourable Tribunal for orders a kin to those in the Petition No. E026 of 2022.
20.Both matters were certified urgent and similar orders issued by the Sports Tribunal on 29th July 2022 to the effect that a temporary injunction do issue staying the FKF PL/NSL Relegation/Promotion Play-off matches between Murang’a Seal and Wazito FC scheduled for Saturday 30th July 2022 pending inter parte hearing of the Applications or further orders of the Tribunal.
21.Consequently, pursuant to the Directions of the Tribunal issued on 16th August 2022, the two Petitions in E026 of 2022 and E027 of 2022 were consolidated as they both raised the same issues and sought the same orders with regards to staying the decision of the FKF Independent Disciplinary Appeals Committee (IDAC).
22.To this extent, the two Petitions in E026 of 2022 and E027 of 2022 jointly raise the following issues:a.THAT an order be and is hereby issued stopping the promotion and/or relegation playoffs which are scheduled for 30th July 2022 until the hearing of the Applicationsb.THAT an order be and is hereby issued that the decision of the IDAC delivered on 19th July 2022 reversing the decision of the Football Kenya Federation Transition Committee to award the points to the Shabana FC is illegal, null, void and of no consequence and should be set aside.c.THAT pending the hearing and determination of the Applications inter-partes, this Honourable Tribunal issue a temporary injunction restraining the IDAC jointly and severally, either by themselves, their servants and/or agents from carrying out or purporting to carry out the functions of the Independent Disciplinary and Appeals Committee.d.THAT an order be and is hereby issued that the participation of Zoo Football Club in the FKF NSL in the 2021/22 season is illegal, null and void and any points for or against the Zoo FC are to be forfeited to the advantage of the teams that were bonafide participants of the league.e.THAT an order be and is hereby issued that Zoo Football Club, having illegally participated in the FKF NSL contrary to the FIFA Disciplinary Committee decision of May 2021 are further relegated to the FKF Division One effective the start of the 2022/23 season.f.THAT a conservatory order be and is hereby issued that all points earned by Zoo football club in the FKF NSL for the 2021/22 season are forfeited to their opponents for having been illegally participating in the league
23.The Respondents in E026 of 2022 filed their responses to the Applicant’s Application dated 25th July 2022 by way of Replying Affidavit as follows:23.1.Firstly, the 1st, 2nd, 5th, and 6th Respondents filed a common Replying Affidavit on 19th August 2022 sworn by Ali Amour on their behalf and dated 5th August 2022.23.2.Secondly, Julius Kariuki Ndege, the Vice Chairman of the 3rd Respondent, filed a Replying Affidavit on behalf dated 11th August 2022 and filed on 22nd August 2022 on behalf of the 3rd Respondent.23.3.Thirdly, the 4th Respondent also put in a Replying Affidavit sworn by Ken Ochieng, its chairman and on its behalf, dated 11th August 2022 and filed on 22nd August 2022.23.4.Lastly, the Respondent in E027 of 2022, FKF Transition Committee, filed an affidavit sworn on its behalf by Maj. Gen. (RTD) Maurice Oyugi dated 24th August 2022 and filed on 14th September 2022.
D. PLEADINGSSUBDIVISION - The Petitioner’s case in E026 of 2022
24.The Petitioner’s case is set out in the Notice of Motion under certificate of urgency and supported by an affidavit sworn by Moses Adagala all dated 25th July 2022.
25.The basis of the Application is the decision on 19th July 2022, where the IDAC reversed the decision of the Transition Committee and held that Shabana forfeited the match as they refused to take to the field to undertake the match as per the referee’s instructions and Fortune SACCO is awarded three (3) points and two (2) goals.
26.The Petitioner claims that this decision greatly prejudices them and the Interested Party vis-à-vis their final position on the National Super League Standings at the end of the 2021/22 season.
27.They relied on Rule 3 of the FKF Rules Governing Kenyan Football in stating that the failure of the match to kick off at the scheduled time was as a result of failure by the home team in its obligation under the said rules and the burden cannot be shifted on the basis of a claim by the referee that they had ordered Shabana FC to play in vain. There is no provision in the rules that gives the referee any powers to order for teams to kick the ball if the match has not kicked off in accordance with the schedule.
28.It was their position that the provisions of Rule 3.2 would not be applicable to the impugned match between Fortune SACCO and Shabana FC and therefore any powers being abrogated to the referee as purported by the impugned decision of 19th July 2022 is a nullity that cannot stand the weight of the test of the regulations.
29.Further, it was their position that the 1st Respondent erred in fact and law in making the impugned determination and their interpretation of the Regulations in the instant cannot be sustained and must fail.
30.Additionally, it was their claim that the 4th Respondent, ZOO FC had been allowed to illegally take part in the National Super League (NSL) 2021/22 as they had been relegated to Division One through the decision of the FIFA Disciplinary Committee on 23rd April 2021 upon violation of the Disciplinary rules.
31.It was their averment that Zoo FC should also forfeit all matches they participated in to the advantage of the teams that were the bonafide participants of the FKF NSL 2021/22 so as to uphold the integrity of the league and the principle of sporting merit as this is critical for final rankings of the league.
32.The Applicant also filed a Supplementary Affidavit to its Application dated 25th July 2022 sworn by Moses Adagala. He swore that the decision of the Independent Disciplinary and Appeals Committee dated 19th July 2022 was erroneous because the same was made under the fallacious assumption that the match for 1st June 2022 between Shabana FC and Fortune SACCO was abandoned pursuant to regulation 3.2.2 of the FKF Rules and Regulations 2019 when the truth of the matter was that the provision was inapplicable.
33.He averred that the above provision only envisaged where all teams have discharged their obligation, are ready to play and the stage is set but due to extraneous circumstances, the referee thinks that the match has to be abandoned. The provision does not allow the referee powers to adjust time contrary to regulation 3.1.3 which gives the mandate to fixture and/or determine kick off time to the FKF National League and Competition Committee
34.He attached the decision of the FIFA Disciplinary Committee dated 23rd April 2022 marked as annexure MA-1. The disciplinary committee found Zoo Football Club culpable for match manipulation and expelled it from the Kenyan Premium League Season 2020/2021 and relegated the team to the FKF Division One for the next season.
The 1st, 2nd, 5th and 6th Respondents’ case in E026 of 2022
35.It was the position of the 1st, 2nd, 5th and 6th Respondents that, following the ouster of the former FKF National Executive Committee and Appointment of the FKF Caretaker Committee and Transition Committee, the circumstances under which the two later committees took over management were not ordinary hence they were not able to easily access documents and information from the previous committee.
36.They stated that pursuant to the ouster of the FKF National Executive Committee and the appointment of the Caretaker Committee and the Transition Committee by the Cabinet Secretary of Sports, Culture and Heritage to take over management of football in the Country, the former committees inherited the 2021/22 season league which was completed on 24th July 2022 in Bomet.
37.That at the time of making its Application, the Applicant/Petitioner herein was fully aware that the 2021/22 seasons league had come to an end having participated in the final game against Shabana FC and therefore was aware that the orders sought in its Application had been overtaken by events.
38.That on 27th July 2022, an Interim Judgment by IDAC was made which was issued to the FKF Transition Committee on 28th July 2022 via email to the CEO of the Committee at 6.00pm.
39.That the FKF Transition Committee made an application for review of the said decision as per the provisions of clause 20 of the FKF Independent Disciplinary Appeals Committee Rules of 2022 on grounds that the decision had been overtaken by events as by 28th July 2022, teams had been communicated to the playoff fixtures and committed thereby making certain financial and administrative decisions that are likely to adversely affect the FKF Transition Committee League administration.
40.That the Transition Committee can demonstrate that other than relegating the offending team, the decision by FKF IDAC is likely to adversely affect the innocent third-party teams who were not aware of the circumstances of the offending team and played honest games as will be demonstrated in authorities to be produced by the FKF Transition Committee in the hearing.
41.The FKF Transition Committee requested the IDAC that in spirit of the circumstances stated, the FKF IDAC to stay its decision stopping the playoffs pending the completion of the playoffs and a substantive hearing of the review application which orders were subsequently granted on 2nd August 2022.
42.It is their case that in the spirit of ensuring smooth running of the leagues, the FKF Caretaker Committee invited teams and/ or football clubs to the NSL to club conferences, one of which the Applicant and the alleged offending team attended and participated in the NSL preparations for the continuation of season 2021/22.
43.That the Petitioner/Applicant never communicated or raised issue on Zoo FC with the FKF Caretaker Committee and the FKF Transition Committee as alleged and the FKF Caretaker Committee and the Transition Committee had never been directly notified of the decision by the FIFA Disciplinary Committee until a decision was made by the FKF Transition Committee IDAC.
44.That the Petitioner/ Applicant had played Zoo FC twice in the 2021/22 season at Kericho on 23rd April 2022 and on May 8th, 2022, at Muhoroni when no such complaints were made to the FKF Caretaker and Transition Committee.
45.That the relegation of Zoo FC was not intended to affect the games played honestly and diligently by other innocent 3rd party teams who were also not aware of the FIFA Disciplinary Committee decision relegating Zoo FC to Division One. They relied on the Federazione Italian Giuoco Calcio (FIGC) to support this claim.
The case for Fortune Sacco Football Club
46.It was the position of Fortune SACCO that Muhoroni Youth FC was not a party to the decision of 19th July 2022 and that the parties thereto were not aggrieved by the decision which the parties to the said proceedings had since complied with.
47.Further, that relegation of Zoo FC from the FKF NSL 2021/22 season was as a result of failure by Zoo Fc to honour three consecutive matches in the second leg of the season and not due to the decision by FIFA which was pending appeal and clarification before the FIFA Appeals Committee.
48.They stated that the Applicant had also approached the Tribunal with unclean hands as its involvement in the FKF NSL 2021/22 season was not based on sporting merit as prescribed by the Rules and Regulations Governing Kenyan Football.
49.They produced a copy of the FKF Division One League 2020/21 season Final Table to support their claim that the Applicant had participated in FKF Division One League Zone B 2020/21 and a copy of the FKF Premier League 2020/21 season and FKF NSL 2020/21 Final League table to support their claim that the Applicant never participated in the FKF Premier League 2020/21 which they would have been relegated.
50.That the Applicants participation in the FKF NSL 2021/22 season was illegal and as a result, all the results involving it should be nullified and they be relegated to FKF Division One League where they belong.
The case for Zoo FC
51.Zoo FC alleged that the matter before the Tribunal is not an Appeal from the decision by IDAC thus constituting an abuse of Court process and must be struck out.
52.That the Application should subsequently be struck out for the issues raised are res judicata as they are similar to those of a matter before the IDAC whose decision was rendered on 27th July 2022.
53.They stated that the decision for relegation of Zoo FC was for failure to honour three (3) consecutive matches in the second leg of the FKF NSL 2021/22 season and all their second leg results nullified as per the rules governing Kenyan football and not due to the FIFA decision.
54.That the reason they had been allowed to participate in the FKF NSL 2021/22 by FKF was because they had sought a clarification from FIFA on the purport of its decision in FDD-6516 and FIFA was yet to respond.
55.That they had filed an Appeal FDD 8729 from the FIFA decision in FDD 6516 which was still pending.
56.They stated that Zoo FC had rightfully participated in the FKF NSL 2021/22 league season until they were relegated and thus there is no reason that will justify the nullification of their participation or forfeiture of any points to the advantage of other NSL teams.
Petitioner’s case in E027
57.The Petitioner challenged the legality of the procedure for appointment of the IDAC on 24th May 2022 by the Respondent based on the following reasons:a.The appointment of the IDAC by the FKFTC was ultra vires as there was no declaration of the vacancies in the IDAC on or before appointment on 24th May 2022;b.Under Article 49 (1) (h) of the FKF Constitution only the National Executive Committee can appoint a replacement for vacancies in the judicial bodies or the Audit and Compliance Committee until the next General assembly and not the Respondent;c.Neither the chair not the vice chair of IDAC is qualified to practice law as per Article 64 (3) of the FKF Constitution;d.There was no ratification by the General Assembly of the appointments pursuant to Article 64 (4) of the FKF Constitution;e.Appointment of Bob Oyugi who was a member of the FKF Caretaker committee previously and later on of the Transition Committee as a member of the IDAC is unlawful;f.The four-year term of the members of the FKF IDAC appointed on 11/12/2020 had not expired and the members had not voluntarily resigned;g.The IDAC proceeded to promulgate rules governing its operations upon appointment without public participation;h.Such a decision includes the decision of 19th July 2022 where the IDAC reversed the decision of the Respondent by docking three points and 2 goals from the 1st interested partyi.The impugned decision will affect the promotion to the Top tier League and relegation to the immediate lower tier;j.It is the Petitioners claim that the IDAC is an illegal and amorphous body whose constitution is not sanctioned by the FKF Constitution;k.The decision of 19th July 2022 contravenes the principle of nemo judex in causa sua as Mr. Bob Oyugi as a member of the Caretaker Committee which made the decision and the IDAC which reversed the decision of the former; andl.Mr. Bob was included in both the proceedings at FKFCC and IDAC thus denying the 2nd Interested Party an opportunity to be heard by an independent and impartial tribunal.
58.The Petitioner sought the following reliefs in its Petition dated 28th July 2022:a.THAT this Honourable Tribunal declares unlawful, illegal and unconstitutional the decision of the Independent Disciplinary and Appeals Committee made on the 19th July 2022 vacating the decision of the Respondent that awarded the 2nd Interested Party three points and two goals for a National Super League match that failed to take place on 1st June 2022 at the Kianyanga Stadium in Kirinyaga County.b.THAT this Honourable Tribunal do set aside the decision of the Independent Disciplinary and Appeals Committee made on the 19th July 2022 and uphold the decision of the Football Kenya caretaker Committee that awarded the 2nd Interested Party three points and two goals for the National Super League match that failed to take place on 1st June 2022 at Kianyanga Stadium in Kirinyaga County.c.In the alternative and without prejudice to prayer (ii) above, this Honourable Tribunal do issue an order that the decision of the Football Kenya Caretaker Committee that awarded the 2nd Interested party three points and two goals for the National Super League match that failed to take place on 1st June 2022 at Kianyanga Stadium in Kirinyaga County be placed before the Independent Disciplinary and Appeals Committee appointed on 11/12/2020 for hearing and determination afresh.d.An order of Permanent Injunction be and is hereby issued restraining the Respondents Leagues and Competitions Committee from implementing the impugned decision of the Independent Disciplinary and Appeals Committee made on the 19th July 2022.e.An order of Permanent Injunction be and is hereby issued restraining the current Members of the Independent Disciplinary and Appeals Committee from carrying out the duties of the Independent Disciplinary and Appeals Committee established under Article 65 & 69 of the FKF Constitution.f.An order be and is hereby issued compelling the Respondents to immediately allow the FKF Bodies to carry out their independent duties as prescribed by the FKF Constitution and to regularize the entire NSL 2021-2022 season.
The case for the Respondent in E027
59.The Replying Affidavit by Maj Gen (RTD) Maurice Oyugi reiterated the same issues adduced in the Replying Affidavit of the 1st, 2nd, 5th and 6th Respondents in E026 of 2022.
60.The matter came up for directions on 2nd August 2022 and the Tribunal directed that the playoffs scheduled for 3rd August 2022 proceed pending the determination of the Tribunal and that the Panel could still adjust the standing of the playoffs in case of any anomaly arising.
61.The matter was canvassed by way of written submissions pursuant to the directions of the Tribunal on 23rd August 2022.
62.The Applicant in E026 of 2022 filed its written submissions dated 22nd August 2022 in support of its claim.
D. ISSUES FOR DETERMINATION
63.Having carefully read the pleadings and submissions by parties, the following issues arise for the determination of this Honourable Tribunal:I.Whether this Honorable Tribunal has jurisdiction to determine this matter?II.Whether the FKF Independent Disciplinary and Appeals Committee as constituted meets the threshold under the FKF Constitution?III.Whether the decision of the FKF Independent Disciplinary and Appeals Committee on 19th July 2022 should be upheld?IVWhether Zoo FC should have participated in the FKF NSL 2021/22 season?
Whether this Honourable Tribunal has jurisdiction to determine this matter?
64.The jurisdiction of this Honourable Tribunal is not contested as none of the parties have challenged the same. Nonetheless, the question of jurisdiction is not foreign to this tribunal, and in good practice, according to the finding of the Court of Appeal in Carmella Wathugu Karigaca vs Mary Nyokabi Karigaca [1997] eKLR, the Tribunal should canvas the matter of jurisdiction whether or not it has been raised in argument.
65.Additionally, it is trite that the same be established before delving into the substantive issues of claim by the parties as was the principle established in the celebrated decision of Nyarangi J in The Owners of Motor Vessels (‘Lilian S’) v Caltex Kenya Limited (1989) KLR 1.
66.Jurisdiction is the authority, which a court, has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The statute, charter, or commission under which the court is constituted imposes the limit of this authority. The authority may be extended or restricted by like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited.
67.The Sports Dispute Tribunal is a statutory creature, and we must go back to the establishing statute to determine whether it has the authority to determine the matter before it.
68.Section 58 of the Sports Act No. 25 of 2013 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.
69.The dispute before the Honourable Tribunal relates to the actions of the FKF Transition Committee which is a national sports organization according to the definition provided under Section 3 of the Sports Act, an umbrella body responsible for football nationally by virtue of Section 54 (1) of the Sports Act and Gazette Notice No. 7005.
70.Additionally, the dispute also relates to the decision of the FKF Independent Disciplinary and Appeals Committee of 19th July 2022 in the matter of Appeal of the match between Fortune SACCO FC and Shabana FC. The body IDAC is a judicial body established under Article 64 of the FKF Constitution.
71.Therefore, this Honourable Tribunal is rightfully clothed with the authority to pronounce itself in the matter before it.
Whether the decision of the FKF Independent Disciplinary and Appeals Committee on 19th July 2022 should be upheld?
71.1. Whether the FKF Independent Disciplinary and Appeals Committee as constituted meets the threshold under the FKF Constitution?
72.Article 21 of the FKF Constitution on the Bodies of the Federation states that:1.The General Assembly is the supreme and legislative body.2.The National Executive Committee is the executive body.3.Standing and ad-hoc committees shall advise and assist the National Executive Committee and the General Secretariat in fulfilling their duties. Their duties, composition and function are defined in the FKF Constitution and/or special regulations drawn up by the National Executive Committee.4.The General Secretariat is the administrative body.5.The independent committees fulfil their functions in accordance with this Constitution and applicable regulations. There shall consist of the Audit and Compliance Committee and the judicial bodies that are the Disciplinary Committee, the Ethics Committee and the Appeals Committee.6.…7.…8.The bodies of FKF shall be either elected or appointed by FKF itself without any external influence and in accordance with the procedures described in the FKF Constitution. The members of the bodies shall not have previously been found guilty of any criminal offence incompatible with the position.
73.Article 24 on the Areas of Authority stipulates that:The General Assembly has the following areas of authorityg. electing or dismissing the chairmen, deputy chairmen and members of the judicial bodies, upon proposal of the National Executive Committee;
74.Article 37 (i) on the composition of National Executive Committee provides that:i.A member of the National Executive Committee may not at the same time be a member of a judicial body of FKF, the Audit and Compliance Committee or the Electoral Committee.
75.Article 39 (h) provides that the National Executive Committee shall appoint replacements for vacancies in the judicial bodies or the Audit and Compliance Committee until the Next General Assembly.
76.Article 64 on Judicial Bodies stipulates that:1.…2.The judicial bodies shall consist of a chairman, deputy chairman and the number of members deemed necessary.3.The judicial bodies are to be composed in such a way that members, together, have the knowledge, abilities and specialist experience that is necessary for the due completion of their tasks. The chairmen of the judicial bodies shall be qualified to practice law and shall undergo an integrity check prior to their appointment or re-appointment. This integrity check shall be conducted by the Audit and Compliance Committee for all members of the Ethics Committee (including the chairman and vice chairman). For all other members of the judicial bodies (including the chairmen and vice chairmen), the integrity check shall be conducted by the Ethics Committee. The term of office shall be four years. The members may be re-elected or relieved of their duties at any time, although they may only be relieved of their duties by the General Assembly.4.The chairmen, the deputy chairmen and other members of the judicial bodies shall be elected by the General Assembly upon proposal of the National Executive Committee and shall not be members of the National Executive Committee, the Electoral Committee or of a standing committee or to any other body of FKF including the General Secretariat or act as a delegate of a Member at the General Assembly.
77.The FKF Transition Committee was appointed by the Cabinet Secretary Sports, Culture and Heritage through Gazette Notice No. 5518 dated 13th May 2022 pursuant to Section 54 of the Sports Act, effectively replacing the National Executive Committee in management of sports affairs in the Country.
78.On 24th May 2022, the FKF Transition Committee purported to appoint GMT Otieno, Asha Pili Ramdhani, Bob Oyugi and Bernard Murunga as members of the Independent Disciplinary and Appeals Committee.
79.At the time of the appointment, there was in existence an FKF IDAC legally appointed under the FKF Constitution on 11th November 2020 by the ousted FKF National Executive Committee and ratified by the General Assembly.
80.In their Replying Affidavit sworn by MAJ. GEN. (RTD.) Maurice Oyugi, the FKF Transition Committee had tried to reach out to the members of the IDAC on phone requesting them to take up office and hear appeals and disciplinary issues concerning FKF members, but they did not respond except for Mr. Murunga hence implying unwillingness to undertake their duties.
81.Article 24 of the FKF constitution gives the procedure to be followed in the event of electing or dismissing a member of IDAC. It stipulates that the National Executive Committee ought to propose the member in question, the chairman or the deputy chairman to the General Assembly for election or dismissal before an action of removal or election. The Constitution places the ultimate responsibility of removing a member of the judicial body on the General Assembly.
82.The question that begs in this case is whether the members who refused to exercise their duties shall be allowed to hold the Federation at ransom? Certainly not. Article 64 (6) states that if the chairman, the deputy chairman or member of a judicial body permanently ceases to perform his official function during his term of office, the National Executive Committee shall appoint a replacement to serve until the next General Assembly in which the General Assembly shall appoint a new member for the remaining period.
83.Therefore, the Transition Committee rightfully exercised its mandate under Article 64 (6) by appointing the IDAC when the members refused to exercise their duties. However, such appointment was to be up to a time when the General Assembly would convene, then, the General Assembly would ratify or appoint a replacement of the members, chairman or deputy chairman for the remaining period of the term.
84.The General Assembly convened on 12th June 2022 after the appointment of the members of IDAC by the Transition Committee but there were no attempts to ratify the appointments or replace them during the meeting.
85.Moreover, the Petitioner in E027 raised claims that the chairman of the IDAC appointed by the FKF Transition Committee is not qualified to practice law. This contravenes Article 64 (3) of the FKF Constitution which stipulates that the Chairman of the Committee shall be qualified to practice law.
86.One of the members, Mr. Bob Oyugi was a member of the FKF Caretaker Committee, now the FKF Transition Committee. His appointment contravenes Articles 37 (i) and 64 (8) of the FKF Constitution which forbids the Chairman and the Deputy Chairman from being members of the FKF National Executive Committee.
87.It is thus evident that the appointments of the Members failed to surmount the standard set out in the FKF Constitution in terms of qualifications and requirements of the chairman and the members.
88.As was the position in Pastoli vs Kabale District Local Government Council & Others, (2008) 2 EA 300 at pages 303 to 304:
89.In the foregoing, it is clear that the body vested with the ultimate authority to elect or dismiss a member of a judicial body such as IDAC is the General Assembly. It is therefore the finding of the Tribunal that the appointment of the IDAC members by the Transition Committee was ultra vires and thus an illegality.
b. Whether the decision of the FKF Independent Disciplinary and Appeals Committee on 19th July 2022 should be upheld?
90.The right to fair hearing is guaranteed and protected by the Constitution of Kenya 2010. Article 25 categorizes the right to fair hearing as a non-derogable fundamental right of an individual.
91.Article 47 on the right to Fair Administrative Action states:
92.Article 50 states that:
93.In the case of Gas & Fuel Corporation of Victoria vs. Wood Hall Ltd & Leonard Pipeline Contractors Ltd [1978] VR 385 at page 396 Marks, J held that;
94.In the case of Robert Tom Martins Kibisu vs Republic (2018) e KLR, it was held as follows:
95.Mr. Oyugi was present in both the proceedings in FKFCC and FKF IDAC that made the original decision and the appeal decision of 19th July 2022 thereof. His presence in both proceedings violate the principles of natural justice thus denying the parties the right to a fair hearing.
96.Chapter 3 of the FKF Rules and Regulations Governing Kenyan Football provides for the duties and obligations of parties to a match in relation to the kick off time and the venue. It provides that:3.11. Fixtures Management and fulfilment3.1.1.In order to effectively manage the football calendar, all fixtures and kick off times in all FKF authorized/organized competitions shall be approved by FKF National League and Competitions Committee as it shall deem fit provided that the last two (2) matches in all league fixtures kick off at the same time.3.1.2.Subject to 3.1.1. above, should a team wish to change a fixture and /or kick off time, they shall be required to do so in writing within seven (7) days of the scheduled date unless for good reason which shall also be given in writing. Clubs shall be notified of fixture and /or kick off time changes, in writing at least seventy-two (72) hours prior to the match.This Rule shall not apply to the last two (2) matches of the season save where there are compelling reasons adduced to the satisfaction of the FKF National League and Competitions Committee3.1.3.Fixtures and / or kick off times shall only be changed as herein provided and at the discretion of the FKF National League and Competitions Committee3.1.4.Save where permission to change a fixture and / or kick off time has been given in terms of this Rule, no fixture and / or kick off time shall be changed in any manner whatsoever.3.1.5.In all the FKF Leagues:3.1.5.1Each team shall name its home ground as well as its alternative home ground.In the event of neither venue being suitable, FKF will have a right to fixture a match at an alternative ground at its absolute discretion;3.1.5.2If, for any reason, a team is unable to play its home fixture at its home ground, it may apply to play its fixtures at a ground selected as an alternative home ground or at a neutral venue to be determined by FKF;3.1.5.3Each team will register its home ground (s) with FKF and no team will relocate to another ground without prior written consent of FKF, which consent will not be unreasonably withheld;3.1.5.4It is the responsibility of the Home team to ensure that there is a suitable venue to host its matches at all times.3.1.6.In the event that a team or both teams in a scheduled fixture fails to turn up or turn(s) up for the match but refuse(s) to play, either team or both shall be docked three (3) points and two (2) goals from those already accumulated or those to be accumulated. Additional sanctions may be imposed on the team(s).
97.On 1st June 2022, the match day between Fortune SACCO FC and Shabana FC which was to take place in Kianyaga Stadium failed to kick off on time due to a Madaraka Day event that was happening at the venue.
98.Fortune SACCO FC being the host, had two obligations under the Rules and Regulations governing Kenyan Football. One, it was supposed to name the home ground and an alternative ground to be used in the event that the home ground was not available. In the event that both grounds became unavailable, then they ought to have contacted FKF for an alternative ground. Fortune SACCO FC did not provide evidence to demonstrate that they undertook these steps.
99.Secondly, having knowledge that the kick-off time was likely to be delayed due to the said celebrations, it had the obligation to change the kick-off time by giving a written notice to the FKF Leagues and Competitions Committee within 7 days. It is not sufficient that they had a pre-match meeting to change the date in lieu of the Madaraka Day celebrations, the changes can only be made by the Leagues and Competitions Committee. Unfortunately, there is no proof that such communication was made to the Committee and the Committee approved the change of kick off time.
100.In light of the above, Fortune SACCO FC was already in default of the Rules and Regulations from the onset.
101.Further, in paragraph 2 (a) of the IDAC decision states that “…pursuant to Rule 3.2.2 of the FKF Rules and Regulations Governing Kenyan Football the Referee has the decision to determine whether a match shall start or should be abandoned and a team which refuses to obey the instructions of the referee to start or resume a match abandons a match, hence they shall forfeit the match…”
102.Rule 3.2 stipulates that:3.2.1.If any doubt arises as to whether a match can take place as scheduled, the club concerned must immediately notify the FKF National Leagues and Competitions Committee. The Committee shall then decide if the match is confirmed as scheduled or if any change has to be made concerning the venue, date or kick-off time.3.2.2.The referee shall decide if a match cannot start or if a match which has started must be abandoned. This decision is made after consultation with the Match Commissioner. A club which refuses or fails to respect the instructions of the referee to start or resume play or in any other way abandons a match shall forfeit the match
103.Based on the reading of the stated rules, we beg to disagree with the interpretation of the IDAC. The discretion of the referee is only to the extent of when a match cannot begin or if a match which started must be abandoned. This discretion does not give the referee the mandate to determine or change the kick-off time for a match. This decision can only be made by the Leagues and Competitions Committee. Consequently, what the referee was doing was trying to commence a match that goes against the rules of the Kenyan football.
104.In this regard, then, the IDAC misinterpreted the provisions of the Rules and Regulations Governing Kenyan Football by holding that the referee had the authority to order when a match can start and finding that Shabana FC forfeited the match thus awarding Fortune Sacco FC three points on a 2-0 goal basis.
105.Accordingly, the Tribunal agrees with the decision of the Transition Committee of 1st July 2022 which found that Fortune SACCO forfeits the match in favour of Shabana FC pursuant to Rule 3.3.2 of the FKF Rules & Regulations Governing Kenyan Rules thus awarding Shabana FC three points and two goals.
Whether Zoo FC should have participated in the FKF NSL 2021/22 season?
106.The FIFA Disciplinary Committee made a decision on 23rd April 2021 which decision was sent to Zoo FC on 27th July 2021. The Disciplinary Committee found Zoo FC responsible for manipulation of Football matches and competitions and expelled the club from the Kenyan Premier League Season 2020/2021 as of the date of the notification of the decision and ordered its relegation to the FKF Division One for the next season.
107.One of the objectives of the Federation under Article 2 (e) of the Constitution of FKF is:e)To respect, and prevent any infringement of, the Constitution, regulations, directives and decisions of FIFA, CAF CECAFA and of FKF as well as the Laws of the Game and to ensure that these are also respected by its Members;
108.Article 8 on the Conduct of Bodies and officials mandates the FKF officials and bodies to observe the decisions and Code of Ethics of FIFA.
109.Indeed, it is a fact that Zoo FC took part in the FKF NSL 2021/22 as opposed to the Division One League to which it had been relegated. In its response through the Affidavit sworn by Mr. Ken Ochieng, he averred that the reasons why Zoo FC took part in the FKF NSL 2021/22 was because they had sought clarifications on the FIFA decision through a correspondence dated 29th July 2021 addressed to the FIFA Appeal Committee.
110.It is evident that no appeal has been filed by Zoo FC except for the request for clarifications. The general principle in law is that an intended appeal does not operate as a stay as was the position in Shell Ltd vs Kibiru and Another [1986] KLR 410 and indeed Rule 61 of the FIFA Disciplinary Code, 2019 stipulates that an appeal does not have a suspensive effect.
111.In view of the fact that Zoo FC has not yet filed an appeal since the date of the FIFA decision, the decision still stands as is. The correspondence written to FIFA seeking clarification of its decision does not amount to an appeal and will certainly not amount to stay of the decision.
112.In this regard, the Tribunal finds that the FIFA Disciplinary Committee decision has not been challenged by way of appeal and the same stands as the decision of the Disciplinary Committee. Consequently, the participation of Zoo FC in the FKF NSL 2021/22 was in contravention of the said decision thus null and void.
E. ORDERS
113.In the foregoing, the Tribunal has come to the following conclusion and orders as follows:a.A declaration is hereby issued that the appointment of the FKF Independent Disciplinary and Appeals Committee members by the Transition Committee was ultra vires and thus illegal.b.The decision of the FKF Independent Disciplinary and Appeals Committee of 19th July 2022 is set aside and the decision by the Transition Committee of 1st July 2022 is upheld.c.A declaration is hereby issued that the participation of Zoo FC in the FKF NSL 2021/22 was in contravention of the FIFA decision on 23rd April 2021 thus null and void.d.Each party shall bear its own costs.
DATED AND DELIVERED AT NAIROBI THIS4TH DAY OF OCTOBER, 2022.John M Ohaga, SC; CArb;ChairpersonIn the presence of:
- E Gichuru Kiplagat, Member
- Gabriel Ouko, Member
