1.The Petitioner is a Women’s football Club based in Kwale County which has brought this action through its team manager.
2.The 1st Respondent is the Football Kenya Federation (hereinafter ‘FKF’) a national sports organization responsible for managing and running the sport of Football in Kenya.
3.The 2nd Respondent is the Nationals Executive of FKF.???
4.The 3rd Respondent is the Leagues and Competitions Committee of FKF.
5.The 4th Respondent is the Coast Region Committee of FKF.
6.The 5th Respondent is a women football club based in Mombasa County.
7.The 6th Respondent is the Cabinet Secretary in the Ministry of Youth Affairs, Sports & the Arts.
8.The Claim is as set out in the Petition lodged at the Tribunal on 7th March 2023. The Petition is accompanied by a Supporting Affidavit sworn by Martin Wekesa, the Team manager who is authorized by the Officials of the Petitioner.
9.When the matter first came up on 13th March 2023, the Chairman of the Tribunal issued directions requiring the Petitioner to serve the Respondents with the Petition and accompanying documents within five (5) days of receipts of the Directions. The matter was set for mention on 21st March, 2023 to confirm compliance and for further directions.
10.On 21st March, 2023 Mr. Omwebu appeared for the 1st 2nd and 3rd Respondents, he noted that he was aware of the matter but that the Respondents were yet to be served with the Petition. He sought a further mention date to enable the Petitioner to serve the Respondents.
11.The Tribunal therefore directed that the Petition be served on the Respondents within seven (7) days and the matter be mentioned on 28th March, 2023.
12.On 28th March 2023, the firm of Litoro and Omwebu filed a Notice of Appointment on behalf of the 1st, 2nd and 3rd Respondents. Simultaneously with the Notice of Appointment was filed a Notice of Preliminary Objection. Upon mention of the matter the Tribunal directed that the preliminary objection be canvassed through written submissions.
13.On 6th April, 2023 the Petitioners filed a Response to the Preliminary Objection.
14.On 11th April, 2023 the 1st, 2nd and 3rd Respondents filed their written submissions in respect to the their Preliminary Objection dated 27th March, 2023.
15.On 11th April 2023, the matter was mentioned to confirm compliance and take a date for ruling. Mr. Olala holding brief Mr. Omwebu for the 1st ,2nd and 3rd Respondents was present. There was no appearance for Petitioners.
16.The Petitioners filed their written submissions in respect of the 1st, 2nd and 3rd Respondents Notice of Preliminary Objection on 18th April 2023.
The Preliminary Objection
17.The Preliminary Objection is raised on a point of law on the grounds that this matter is res judicata. The objection is in the following terms:
The 1st, 2nd and 3rd Respondent’s Arguments
18.As can be discerned from the Notice of Preliminary Objection, the 1st, 2nd and 3rd Respondents contend that the Tribunal lacks jurisdiction on the basis that there is an existing judgment of the Tribunal and thus the issues sought to be litigated are res judicata.
19.The 1st, 2nd and 3rd Respondents submission is that the instant petition is premised upon the 2nd Respondent’s resolution dated 9th November 2022 in respect of the 2021/2022 League Season stipulating the manner in which the resumption of football in Kenya was to be undertaken.
20.The Respondents relied on Section 7 of the Civil Procedure Act which they averred ousted the jurisdiction of a Court to try any suit or issue which had been finally determined by a court of competent jurisdiction in a former suit involving the same parties or parties litigating under the same title.
21.The 1st , 2nd and 3rd Respondents averred that the rationale behind res judicata is to ensure economic use of the courts limited resources and timely termination of cases. They averred that it promotes confidence in courts predictability and protects a party from facing repetitive litigation over the same matter.
22.The 1st , 2nd and 3rd Respondents relied on the case of John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others1 wherein the Court held that res judicata goes to the root of the jurisdiction of the court to entertain a dispute and if successfully ventilated, the doctrine will deny the court entertaining the dispute jurisdiction to take any further steps.
23.It is therefore the 1st , 2nd and 3rd Respondents assertion that the issues in the instant Petition are issues that this Tribunal, properly sitting has heard and rendered a competent decision. The 1st , 2nd and 3rd Respondents thus pray that the Petition be dismissed in limine as the issues herein have been litigated in common by the parties in the Consolidated Cases before the Tribunal.
The Petitioner’s Submissions
24.The Petitioner commenced their submissions by stating that the Petition did not relate to the Consolidated Cases and was not an abuse of the Court process.
25.The Petitioner avers that the grounds and issues under the Instant Petition are entirely on the Promotion of the Petitioner in the 2020/2021 Regional League.
26.The Petitioner asserts that the current petition had nothing to do with the 2021/2022 National League Season but related to Regional League in the 2020/2021 Season.
27.The Petitioner further asserts that the Respondent’s Preliminary Objection is an abuse of the court process and goes against the decision of the 2nd Respondent reached on 9th November, 2022 which affected the promotion of the Petitioner into FKF Division 1 Women League in the 2021/2022 Season.
28.The Petitioner avers that the Caretaker Committee in its determination on the Petitioner’s Appeal directed that the Petitioner play with the winners of pool A which the Petitioner did and won against Progressive Starlets FC thus granting the Petitioner promotion to the National Division 1 in the 2021/2022 Season.
29.The Petitioner relies on Article 69(5) of the FKF Constitution, 2017 which accords the Appeals Committee the jurisdiction to determine Appeals by parties dissatisfied with the decisions made by FKF Standing Committees. The Petitioners say that by dint of Article 69(5) of the FKF Constitution, 2017 the decision by the Caretaker Committee in the Appeal was final and thus the Petitioner ought to have been promoted to National Division 1 in the 2021/2022 Season.
30.The Petitioner further asserts that the matter herein is fresh and is a question on who qualified in the Regional League in the Coast Region in the 20020/2021 Season.
31.The challenge to jurisdiction is premised on the existence of a Judgement rendered by the Tribunal in the Consolidated Cases premised on the 2nd Respondents Resolution dated 9th November 2022 in respect of the 2021/2022 League Season stipulating the manner in which the resumption of football in Kenya was to be undertaken in the 2022/2023 Season.
32.Prior to delving into the substantive issues raised the Tribunal will address the legal standard of a preliminary objection and then proceed to address the grounds placed before the Tribunal sequentially.
33.In Mukhisa Biscuit Manufacturers Limited v West End Distributors Limited 2 the Court observed as follows: -
34.The Supreme Court addressed the nature of a preliminary objection in the case of Aviation & Allied Workers Union Kenya vs Kenya Airways Ltd & 3 Others 3stating as follows:
35.The Respondent has sought the dismissal of the Petitioner’s suit via a Notice of Preliminary Objection on the basis that the same is res judicata.
36.The substantive law on Res Judicata is found in Section 7 of the Civil Procedure Act, Cap 21 which provides that:
37.Black’s Law Dictionary 10th Edition defines “res judicata” as:
38.The Tribunal has carefully considered the contents of the Petition as well as the Supporting Affidavit, Response to the Notice of Preliminary Objection as well as the Petitioner’s Submissions. The Tribunal has also considered the 1st ,2nd and 3rd Respondents’ Notice of Preliminary Objection and their Submissions.
39.It is not in dispute that the gravamen of the suit is the 2nd Respondent’s Resolution dated November 9th, 2022, in respect of the 2021/2022 League Season stipulating the manner in which resumption of football in Kenya was to be undertaken and the promotion of the Petitioner.
40.Challenges to jurisdiction under the doctrine of res judicata are important in adjudication of matters as they prevents multiplicity of suits which would ordinarily clog the courts, and heave unnecessary costs on the parties to litigate and defend two suits which ought to have been determined in a single suit and it ensures litigation comes to an end; with disappointed parties being barred from camouflaging already decided cases in new garments in the art of pleadings.
41.As aptly held by the Court of Appeal in James Njuguna Chui vs John Njogu Kimani4 held:
42.The Tribunal acknowledges that jurisdiction is a threshold issue which must be dealt with and determined at the outset.
43.The test for determining the application of the doctrine of res-judicata in any given case is spelt out under section 7 of the Civil Procedure Act.
44.Indeed, the principles are clear. In Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others 5the Supreme Court pronounced as follows:
45.It is instructive that an application on the basis of a matter being res judicata ought to be one on a point of law that must not be blurred with factual details liable to be contested and/or proved through the process of evidence. To this effect, on the first issue as to whether the suit or issue was directly and substantially in issue in the former suit, we find in the affirmative as the instant petition and the consolidated cases are as a result of the 2nd Respondent’s Resolution dated November 9th, 2022 in respect of the 2021/2022 League Season stipulating the manner in which resumption of football in Kenya was to be undertaken and find that there is sameness in the subject matter.
46.In E.T.V v Attorney General & Another6 expounding the essence of the doctrine of res judicata, the Court stated as follows:
47.Applying the foregoing to the present case, on the second and third issue, we find that the parties in the Instant Petition and in the Consolidated cases were litigating under the same title and the suits involve parties in privity with the original parties.
48.On the fourth issue as to whether the issue was heard and finally determined in the former suit, we find that the judgment and directions issued on 6th December 2022 in SDTSC No. E 036 of 2022 as consolidated with SDTSC No. E038 of 2022 & SDTSC No. E039 of 2022(the Consolidated Cases) were of nature of finality.
49.On the last issue as to whether the court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised, the answer is yet again affirmative.
50.Accordingly, the Preliminary Objection is hereby upheld. We find that the Petition filed on 7th March 2023 is res judicata SDTSC No. E 036 of 2022 as consolidated with SDTSC No. E038 of 2022 & SDTSC No. E. 039 of 2022 and the same is hereby dismissed with no order as to costs.