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Cerebral Palsy Sports Federation & 3 others v Kenya National Paralympic Committee & 2 others; Milare (Interested Party) (Tribunal Case E034 of 2022) [2023] KESDT 34 (KLR) (28 February 2023) (Decision)
Neutral citation:
[2023] KESDT 34 (KLR)
Republic of Kenya
Tribunal Case E034 of 2022
E. G. Kiplagat, Chair, MN Kimani & Peter Ochieng, Members
February 28, 2023
Between
Cerebral Palsy Sports Federation
1st Petitioner
Kenya Sports Federation for Mentally Handicapped
2nd Petitioner
Lydia Iregi
3rd Petitioner
Pauline Awuor Awange
4th Petitioner
and
Kenya National Paralympic Committee
1st Respondent
Agnes Oluoch
2nd Respondent
Elijah Aliero
3rd Respondent
and
Ronald Milare
Interested Party
Decision
The Parties
1.The 1st and 2nd Petitioners are sports organizations registered under the Sports Act.
2.The 3rd Petitioner is the Chairperson of the Cerebral Palsy Sports Federation and affiliated to the 1st Respondent.
3.The 4th Petitioner is the Secretary General of the Kenya Sports Federation for the Mentally Handicapped and affiliated to the 1st Respondent.
4.The 1st Respondent is an umbrella national sports organization registered as such under the Sports Act whose membership include various sports federations of the physically challenged and intellectually impaired that include the 1st and 2nd Petitioners.
5.The 2nd and 3rd Respondents are officials of the 1st Respondent.
6.The Interested Party is affiliated to the 1st Respondent.
The Case
7.The Petitioners have approached the Tribunal vide their statement of claim and application under certificate all dated 12/10/2022 filed with the Tribunal.
8.The Petitioners claimed that on or about October,2014 the 1st Respondent conducted its elections where all its affiliate federations (the 1st and 2nd claimants included) participated fully with the 2nd Respondent elected as Chairperson.
9.They further noted that four years later elections were held for the 1st Respondent in compliance with the 1st Respondent’s constitution and all affiliates participated even though there was mayhem and the elections failed to take place.
10.They noted that the 2nd and 3rd Respondents in the midst of all the chaos unconstitutionally took over as the Executive Committee for a further term of four years as Chairperson and Secretary General respectively.
11.The Petitioners further noted that on 11/07/2022 this Tribunal issued directions and ordered the 1st Respondent and all its affiliates to hold elections. In relation to the directions the 3rd Respondent vide a notice dated 22/08/2022 informed all affiliate federations that this Tribunal issued a ruling that directed KNPC to hold elections within ninety days which period would lapse on the 15/10/22.
12.The Petitioners contend that the affiliate federations did not receive a copy of the ruling that stipulated the ninety-day period, a fact which they claim puts the 3rd Respondent’s notice dated 22nd August 2022 to question.
13.They also noted that the 3rd Respondent through a notice dated 07/10/2022 produced a list of successful applicants for various positions of the 1st Respondent’s Executive Committee elections. The said notice additionally stated that the elections shall be held on 14th October,2022.
14.They note that the in absolute disregard of the KNPC Constitution, the 2nd and 3rd Respondents alongside other members of the illegally running Executive Committee applied for elective positions with undue regard to the affiliates bodies’ members consent to their nomination.
15.They further note that the Respondents have side-lined the 1st and 2nd Petitioners and failed to include them in the election process. They also claim that the Respondents failed to invite the Petitioners to a Special General Meeting which should be convened prior to the elections with every affiliate federation in attendance.
16.They also note that should the impugned elections proceed as planned the Petitioners would be prejudiced as members of the 1st and 2nd Petitioners would suffer non-representation and the elections would not be considered to be free and fair. They note that the same persons nominated to run for various elective offices are still the same members of the illegal executive committee whose term ought to have ended in 2018 but continued in office until 2022.
17.They also note that some of the nominees are not members of the said affiliate bodies that they claim to belong to.
18.The petitioner prays for:a.A declaration that Respondents breached the constitution of KNPC by failing to issue the notice for a Special General Meeting and the election to the Petitioners.b.A declaration that the Respondents breached the constitution by failing to follow the proper procedure required for nominations by affiliate federations.c.A declaration be made that the 2nd and 3rd Respondents acted in bad faith by declaring themselves successful applicants without proof of appointment from the said affiliated federations.d.A declaration be made that the 2nd and 3rd Respondents abused their office by placing themselves in affiliated bodies to which they are not members.e.A declaration be made that the entire election process is marred with irregularities, illegalities and pure selfishness.f.An order compelling the Respondents to include the Petitioners in the election process and further direct that the 1st and 2nd Petitioners to provide their list of nominees and participating in the voting.g.An order compelling the 2nd and 3rd Respondents alongside the illegally formed Executive Committee members presently recognised as successful applicants be exempt from running for office on behalf of any affiliate federationh.Costs of the suit.i.Any order that the Tribunal can grant.
The Response
19.The Respondents filed their response dated 14/11/22 denying the allegations made against them. The 2nd and 3rd Respondents agreed that they were elected in 2014 for a period of 4 years as Chairperson and Secretary General and would be eligible for re-election into office upon the expiry of the 4-year term.
20.They note that as the term of the office drew to a close they prepared for elections but about the same time several cases were filed at the Tribunal touching on election timelines for various federations affiliated to the 1st Respondent, governance issues and amendment of their constitutions to align them with the Sports Act, 2013.These cases included SDT Appeal No.13 of 2018, SDT Appeal No.18 of 2018, SDT Appeal No.19 of 2018 and SDT No.25 of 2018.
21.They further stated that on or about 18/12/2018, the Tribunal issued directions referring the matters relating to the 1st Respondent and its affiliate Federation to mediation. The Mediation Committee recommended that the constitution of the 1st Responded be amended after which federations affiliated to the 1st Respondent should amend their respective constitutions to align with that of the 1st Respondent as the umbrella body. The net effect here they claim was to maintain a status quo until all issues were resolved.
22.They also noted that besides the cases filed, the international federation that KNPC is affiliated to, International Paralympic Committee (IPC) informed KNPC that the structure of IPC had changed to include other affiliate para disciplines besides the four founding federations. Therefore, it was a pre-condition for KNPC to amend its constitution to align to the new structure of IPC.
23.They noted that upon amendment of the constitution the new structure now comprises other para disciplines within federations that are also under the National Olympic Committee - Kenya (NOCK) which include Archery, Badminton, Canoeing, Cycling, Equestrian, Rowing, Table Tennis, Taekwondo, Triathlon and Wheelchair Tennis.
24.They further noted that other para federations that would have direct association with KNPC besides the four founding members of KNPC were: Sitting Volleyball Federation of Kenya, Wheelchair Basketball Federation of Kenya, Wheelchair Rugby Federation of Kenya and Boccia Federation of Kenya.
25.The Respondents therefore note that it is apparent that the failure to conduct the second round of elections in 2018 or soon thereafter was never the intention of the Executive Committee of the 1st Respondent.
26.They noted further that by virtue of the mediation process the 2nd and 3rd Respondents remained in office on a temporary incumbency basis as nature abhors a vacuum and that under Article 4(2) of the 1st Respondent’s constitution, the Executive Committee is mandated to remain in office provisionally until a new committee is elected.
27.They also stated that the Tribunal issued an order in SDT Appeal No.11 of 2022 directing the 1st Respondent and its affiliates to hold elections within 90 days.
28.Additionally, they stated that they did send a notice to all the affiliate federations on or about 22/08/2022 and followed up with an updated one on or about 15/09/2022. They noted that the notice contained all the information relating to the ruling and the directions of the Tribunal. They contend that if the Petitioners found any information inadequate they should have sought clarification from the Respondents.
29.They also noted that there have been ongoing attempts by the international sports community to merge the 1st Petitioner’s International Federation (IF) namely Cerebral Palsy International Sports and Recreation Association (CPISRA) with the International Wheelchair & Amputee Sports Federation (IWAS) of which the Wheelchair and Amputee Sports Association of Kenya (WASK) is an affiliate, and that after consultations with all stakeholders it was resolved that the 1st Petitioner be merged with WASK.
1st Interested Party
30.The 1st Interested Party filed a replying affidavit dated 06/12/2022 agreeing entirely with the Petitioners. Briefly, the 1st Interested Party states that WASK is a national umbrella body eligible for full membership in the 1st Respondent’s membership structure according to the KNPC constitution in which it belongs to in accordance with the 1st Respondent’s Constitution and International Wheelchair and Amputee Sports Association (IWAS) Constitution.
31.He states that the 1st Respondents legitimate elections were last held on or about September and November 2014 and the 2nd and 3rd Respondents took office for a term of 4 years having being duly elected.
32.He notes that despite the expiry of the 2nd and 3rd Respondents term in 2018 they illegally and unlawfully continue holding office and that they have been in office cumulatively for more than 8 years contrary to section 46 of the Sports Act and the Second Schedule to the Act.
2nd Interested Party
33.The 2nd Interested Party filed a replying affidavit dated 16/11/2022 also in support of the Petitioners case in full. We will proceed to reproduce what the 2nd Interested Party stated here in brief.
34.He noted that the Registrar of Sports in a letter dated 12/09/2022 expressed dissatisfaction to the mode in which the 2nd and 3rd Respondents have been conducting and running the office including the ineligibility of current members as per the Sports Act. He also stated that the Sport Registrar in the same letter admonished the Respondents for bungling the elections of 2018.
35.He noted further that according to Article 3 (2) of the KNPC Constitution all applications for membership shall be made in writing accompanied by:a.A copy of the constitution of the National Sports Federation (NF) or the National Organization of Sports for Athletes with Disabilities (NOSD).b.Proof of registration of the body with Registrar of Sports.c.Proof of membership of an International Federation (IF) of a sport on the Paralympic Programme for National Sport Federations (NF) and for NOSD, proof of membership of an International Sport Organization for the Disabled (IOSD) that is recognized by the IPC.
36.He therefore submits that the KNPC General Assembly has yet to be convened do discuss any application by the affiliate bodies to join KNPC and the entire process of joinder is flawed, null and void and consequently so are any Notices to the alleged affiliate members.
37.He in conclusion prayed for an order that the Tribunal supervises the KNPC elections or offers its assistance for the same as the current office holders have failed to demonstrate transparent, free and fair elections.
Hearing
38.The Tribunal heard the parties on 6th and 13th December 2022. They relied on their pleadings as well as oral and written submissions.
Determination
39.Having taken into account the parties’ pleadings, oral and written submissions, the Tribunal finds that the main issues for determination are:a.Whether the Respondents had any legal basis to exclude the Petitioners from the elections that were scheduled to be held on 14/10/2022.b.Whether the Petitioners are entitled to the prayers sought.
a) Whether the Respondents had any legal basis to exclude the Petitioners from the elections that were scheduled to be held on 14/10/2022.
40.The jurisdiction of this Tribunal stems from section 58 of the Sports Act that provides:
41.The parties herein have by their express conduct submitted themselves to the jurisdiction of this Tribunal. We therefore find that we have the jurisdiction needed to determine this petition.
42.The Tribunal will make reference to the 1st Respondent’s constitution, the Sports Act as well the constitution of Kenya alongside the documents filed by the parties to decide on the questions before us.
43.The 1st Respondent’s constitution of 2020 is the version approved by the Sports Registrar pursuant to sections 45(2)(b),46 (4)(a) of the Sports Act and the Sports Registrar’s Regulations of 2016. The Respondents have submitted a constitution purporting to be for the 1st Respondent dated January 2022. However, they proffered no evidence that it has the legal approval necessary from the Sport’s Registrar. We will therefore retain the 2020 KNPC Constitution for our purposes here.
44.Article 2.2.6 of the 1st Respondent’s constitution states that among its principles is to:
45.Article 3.2 states that:
46.Article 3.2.1.1 provides that full membership shall be open to a National Sports Federation affiliated to the International Federation (IF) governing a sport on the paralympic programme. Article 3.2.1.2 provide that full members must have conducted elections from the sub-branch level in accordance with the Sports Act 2013 and approved by the Registrar of Sports prior to application.
47.Under Article 3.2.2.1 associate member shall be open to a national federation or National Organization of Sport for athletes with Disabilities (NOSD) i.e. an independent registered sports organization recognised by the KNPC who are not included on the Paralympic program. However, under Article 3.2.2.2 the Executive Committee shall review all application for associate membership and give recommendations to the General Assembly to decide whether to grant the membership or not as per Article 3.2.2.3.
48.Article 3.3.4 provides that full members shall have full voting and speaking rights at all meetings and elections of KNPC. Article 3.3.9 provide that only full members shall be entitled to nominate candidates for election to participate in the appropriate KNPC bodies.
49.Article 4.2.1 of the General Assembly provides that the General Assembly shall be the supreme governing authority of KNPC setting fundamental direction for the Executive Committee. Article 4.2.1.2 provides that the General Assembly shall be held to provide forum for recommendation, decision by the members of KNPC. The specific wider roles of the General Assembly are also stated in Article 4.2.2.
50.The General Assembly also decides upon application for membership to KNPC under Article 4.2.2.7 while in Articles 4.2.2.9.10 the General Assembly decides upon amendments to the KNPC Constitution. Under Article 4.2.2.13 it would consider, approve, reject and amend any decision on matters of policy referred to it by the Executive Committee. Article 4.2.2.19 provides that the General Assembly shall approve and admit full members in KNPC among many other matters relevant to KNPC as it goes about fulfilling its role as the supreme governing body of KNPC.
51.Moreover, Article 5.1.7.11 states that elections shall be conducted by an independent panel in accordance with the principles set out in Article 81 of the Constitution of Kenya 2010 and the Sports Act 2013 and the Executive Committee shall promulgate election rules encompassing all the legal requirements.
52.We have extensively reproduced these provisions to provide legal context and measure them against the Respondents actions following the Petitioners’ claim.
53.The Respondents noted that there have been ongoing attempts by the international sports community to merge the 1st Petitioner’s International Federation (IF) namely Cerebral Palsy International Sports and Recreation Association (CPISRA) with the International Wheelchair and Amputee Sports Federation (IWAS).The Respondents also state that Wheelchair and Amputee Sports Association of Kenya (WASK) is an affiliate to IWAS and that after consultations with all stakeholders it was resolved that the 1st Petitioner be merged with WASK. They contend that this why the 1st Petitioner was not invited to participate for the elections slated for 14/09/2022.
54.However, such a radical change should have some level of documentary evidence that all stakeholders were consulted including the Petitioners here. Secondly, there is no evidence that the 1st Respondent’s General Assembly being the supreme governing body under Articles 4.2 and 4.2.1.2 of the 1st Respondent’s constitution sanctioned this move by for example availing evidence of emergent dissolutions of appropriate body(s) and by all means an application from the merged entity and approval of its application by the General Assembly as per its Articles 4.2.2.7. & 4.2.2.19 of KNPC. The General Assembly has sweeping and ultimate powers to ratify any decision by the Executive Committee of the 1st Respondent and there is no evidence to confirm that this was done.
55.Furthermore, the Respondents claim that they excluded the Claimants from the elections because KNPC had been informed that the structure of IPC had changed to include other affiliate para disciplines besides the four founding federations. Therefore, it was a pre-condition for KNPC to amend its constitution to align to the new structure of IPC.
56.Despite this assertion we do not see how the new members were brought on-board and whether this was in strict compliance with the 1st Respondent’s constitution. For example no evidence is provided showing whether applicants applying for full membership under Article 3.2.1.2 of the KNPC constitution did conduct elections from the sub-branch level in accordance with the Sports Act 2013 and whether this was approved by the Registrar of Sports prior to application. Neither was evidence presented to show that the General Assembly exercised its mandates under Articles 4.2.2.7 & 4.2.2.19 of the KNPC Constitution in regard to the so-called new full members. Non-compliance by the Respondents with their own constitution in effect meant that some of the nominees for elections were members of bodies which were not bona fide affiliate bodies or full members of the 1st Respondent, further calling into question the validity of the resultant list of nominees or successful candidates presented for the panel’s scrutiny.
57.Similarly, the Respondents did not provide evidence with respect to compliance of Articles 3.2.2.1,3.2.2.2 and 3.2.2.3 of the 1st Respondent’s constitution on associate membership applications which have to be reviewed by the Executive Committee and then get an approval of the General Assembly.
58.We also were not afforded an opportunity to see any form of material confirming that the amendments to the 1st Respondent Constitution as alleged were tabled before the General Assembly as provided for by Articles 4.2.2.9 and 10 of the 1st Respondent’s constitution.
59.The 4th Petitioner tabled evidence that indicated that prior to said elections, the 2nd Respondent was on record having declared publicly that the 2nd Petitioner was no longer a member of KNPC which ostensibly was the reason for locking out the 2nd and 4th Petitioners. The 2nd Respondent tendered an apology explaining that after consulting IPC she did confirm that the 2nd Respondent, a founder member, retained its full membership with the 1st Respondent. This due diligence by 2nd Respondent in our view should have been done prior to and not after commencement of these proceeding given that the exclusion of the 2nd Petitioner from participating in the scheduled elections of 14/10/22 was unjustified and impacted the 1st Respondent’s elections.
60.Indeed, all these acts of omission and commission by the 2nd and 3rd Respondents were illegal, unjustified and seemed well choreographed and meant to disenfranchise and lock out the Petitioners from participating in the scheduled elections of 14/10/22. The 1st Respondent’s own constitution under Article 5.1.7.11 as seen above provides that:
61.Article 81 of the Constitution of Kenya provides as follows:
62.Excluding the Petitioners from the scheduled elections by the 2nd and 3rd Respondents was anything but these. This also is not in keeping with their own KNPC Constitution under Article 2.2.6 which states that among its principles is to:
63.We also opine that none of the four cases, that is to say, SDT Appeal No.13 of 2018, SDT Appeal No.18 of 2018, SDT Appeal No.19 of 2018 and SDT No.25 of 2018 have a bearing on the issue at hand. In no way did they inhibit the holding of elections since 2018. After all, the cases touched on various other disputes and they were concluded in 2018.Directions were given on 13thMay, 2021 and issued on 28th May, 2021 in regard to both SDT Appeal No.18 of 2018 & SDT No.25 of 2018 to specifically address the matter of preparation of Team Kenya for the then Tokyo Paralympic Games.
64.Similarly, the mediation process spearheaded by the Tribunal that started in 2018 cannot also be used as a smokescreen by the Respondents. There was no evidence submitted showing how the process stalled any of the elections planned for the 1st Respondent after they became due in 2018. We note that not even a legal challenge by stakeholders on account of non-compliance with said Mediation Committee’s recommendations could vary the KNPC leadership as evident in Appeal SDT No. 7 of 2019 Elijah Aliero & another v. Agnes Flora Oluoch & KNPC & other when the Tribunal said:
65.This is why the Tribunal on 11/07/2022 pursuant to SDT Case No.11 of 2022 ordered the 1st Respondent and its affiliates to hold elections.
66.Part (c) of the Second Schedule pursuant to section 46 of the Sports Act provides that officials of a sport organization like the 1st Respondent can be elected into office for a term not exceeding four years but shall be eligible for only one more term of four years. This is replicated to some extent pari passu in the 1st Respondent’s constitution under Article 4.3.1.2 that also allows the Executive Committee to remain in office provisionally until a new committee is elected but more worrisome is that its rendering falls short of basic minimums set by section 46(5) of the Sports Act. Further, as much as the officials of KNPC Executive can hold office on temporary basis until new officials take over after elections, being in office for more than four years after elections are due cannot be said to be falling within that ‘provisional’ definition at all. Certainly, this was not the intention of the Sports Act which in fact supersedes and overrides the KNPC constitution.
67.Improper sports governance has been a challenge in this country for a long time. One of the debilitating causes of this has been perpetuated by officials in sports federations wanting to cling to these positions as office bearers even when their time is up. Section 46 (5) of the Sports Act and part (c) of the Second Schedule to the Act sought to cure this mischief. It was the intention of the legislature that imposing term limits was the panacea to this kind of avarice.
68.As a Tribunal charged with the solemn duty of inculcating proper sports governance in the country we will not tolerate this wanton behaviour. Clearly, the 2nd and 3rd Respondent espouse this culture. They have not only overstayed in office beyond their time but they have also exploited every opportunity to overstay their welcome. This has not escaped our scrutiny and it certainly will not escape our admonition. Indeed, the 3rd Respondent herein was even a subject of this Tribunal’s sanctions for similar behaviour in the case of SDT No.19 of 2018 Edwin Muruah & another v. Joram Wambugu & others.
69.As a matter of fact, the Sports Registrar’s letter dated 05/10/2022 showed her utter indignation to the wanton impunity displayed by the officials of KNPC including the 2nd and 3rd Respondents when they called for the elections for the 1st Respondent for 14/10/2022. These are excerpts of her letter:
70.We therefore find that the Respondents had no legal basis whatsoever for excluding the Petitioners from participating in the elections of 14/10/2022 and their acts of commission and omission were in breach of the KNPC constitution, the Sports Act and the Constitution of Kenya 2010.
b) Whether the Petitioners are entitled to the prayers sought.
71.Having answered the first limb of our discussion in the affirmative, we find that the petitioners have made a case and are entitled to the prayers sought to a larger extent.
72.We therefore, find no reason to belabour further than this.
Conclusion
73.It is therefore in consideration of this, as well as the parties’ submissions that the Tribunal makes the following orders:
DATED AT NAIROBI THIS 28TH DAY OF FEBRUARY, 2023GICHURU KIPLAGAT, PANEL CHAIRPERSON......................................MARY N. KIMANI, MEMBER.............................PETER OCHIENG, MEMBERHearing: 6th December 2022 & 13th December 2022
