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 22.214.171.124 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 126.96.36.199 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 188.8.131.52 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 184.108.40.206 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 220.127.116.11.
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 18.104.22.168 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 22.214.171.124 while in Articles 126.96.36.199.10 the General Assembly decides upon amendments to the KNPC Constitution. Under Article 188.8.131.52 it would consider, approve, reject and amend any decision on matters of policy referred to it by the Executive Committee. Article 184.108.40.206 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 220.127.116.11 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 18.104.22.168 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 22.214.171.124. & 126.96.36.199 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 188.8.131.52 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 184.108.40.206 & 220.127.116.11 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 18.104.22.168,22.214.171.124 and 126.96.36.199 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 188.8.131.52 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 184.108.40.206 as seen above provides that:
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 220.127.116.11 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.