1.Mrs. Elynah Sifuna-Shiveka – Panel Chairperson
2.Mr. Gichuru Kiplagat - Member
3.Mr. Peter Ochieng – Member
1.The Applicant was represented by Weru Advocate from the firm of Weru Munyoro & Co. Advocates.
2.The Respondent was represented by Jemimah Bob Advocate from the firm of Wambilianga Majani & Associates.
1.The Applicant is a football player.
2.The Respondent is a football club in Kenya and a member of the Football Kenya Federation.
3.The Claimant filed a claim dated 02/02/2023 claiming that he was employed by the Respondent club on 09/08/2019 vide a contract as a football player at a gross monthly salary of Kshs. 150,000 exclusive of other allowances.
4.The Claimant avers that upon joining the Respondent Club he carried out his duties as required by the contract and FIFA football laws. In particular, he took part in all games that he was called upon to play and attended training sessions as scheduled.
5.The claimant avers that his salary was payable monthly and he did not consent to his salaries being withheld by the Respondent whose actions is in breach of Clause 8 of the Player Agreement Contract dated 09/08/2019.
6.The claimant further avers that the contract required the Respondent to pay him Kshs. 1,500,000 as signing fee in three equal monthly instalments on 15/08/2019,15/09/2019 and 15/10/2019.The contract also required payment of base allowance of Kshs.300 per day and Kshs. 5,000 allowance for winning a game.
7.The claimant contends that all these dues have not been paid and which makes a cumulatively total of Kshs. 2,225,500 together with interest at the rate of 14.5% from July 2021.This, he noted was in total breach of Article 12bis of the FIFA football laws, Article 41 of the constitution of Kenya and the Employment Act.
8.The claimant prayed for the following remedies:a.Judgment against the Respondent for a sum of Kshs. 2,225,500.b.Compensation for unfair labour practices.c.Interests on (a) above from July,2021 until payment in full.d.Costs of this suit.e.Any other relief that this tribunal may deem appropriate to grant.
9.The Respondent filed a memorandum of response and a preliminary objection both dated 17/04/2023 against the claim. The grounds of the preliminary objection are:a.That the Tribunal lacks jurisdiction to hear the entire claim on account of the provisions of section 90 of the Employment Act,2007.b.That the claim for signing bonus is time-barred having been brought before this tribunal after over three years since it became due and payable.c.That the claim for unpaid salaries for October 2020 to July 2021 amount to continuing injuries and are consequently time-barred as they have been brought before this tribunal over one year since the cause of action accrued.d.That the claim for unpaid winning allowances for the 2019/2020 and 2020/2021 seasons amount to continuing injuries and are consequently time-barred as they have been brought before this tribunal over one year since the cause of action accrued.
10.The matter was heard on 25/04/2023 and the parties were ordered to file written submissions. The tribunal fixed the matter for mention for 02/05/2023 to confirm compliance. The claimant filed written submissions dated 02/05/2023 while the Respondent filed written submissions dated 04/05/2023.
11.When the matter came up for mention on 02/05/2023 to confirm whether parties had filed written submissions, the Tribunal directed that the ruling shall be reserved for 16/05/2023.However, the written submissions were received by the tribunal on 16/05/2023 and the decision was rescheduled for delivery for 23/05/2023.
12.Having taken into account the parties’ pleadings written and oral submissions, the Tribunal states as follows:
13.At the outset the Tribunal has looked at the grounds raised by the preliminary objection dated 17/04/2023 and the tribunal is of the view that they can all be crystalized into one question for determination which is, whether the Tribunal has jurisdiction to hear this case.
Whether the Tribunal has jurisdiction to hear this case.
14.The jurisdiction of this Tribunal stems from Section 58 of the Sports Act which provides as follows: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.”
15.Section 59 of the Sports Act states further that:
16.The current dispute stems from a contract dated 09/08/2019 entered between the Claimant and the Respondent. This being a claim arising from a football player who had been contracted by a football club we find that the dispute falls within the definition of section 58(b) as “other sports related disputes “as determined by this Tribunal in Dennis Kadito v. Sofapaka FC (SDT Appeal No.23 of 2016 and in Mwinyi Kibwana Shami v KCB FC (SDT No.22 of 2019).
17.The question of jurisdiction was determined in the celebrated case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd  KLR 1 where the Court stated that:-
18.John Bacroft Saunders in a treatise headed Words and Phrases Legally Defined-Volume 3: I-N the Author states at page 113 the following on the issue of jurisdiction:-
19.However, the test on what constitutes a preliminary objection is now settled law. In Mukisa Biscuits Manufacturing Co Ltd v West End Distributors  EA 696 Sir Charles Newbold JA stated that:
20.The Respondent relies on section 90 of the Employment Act to challenge the tribunal’s jurisdiction. This section provides that:
21.The dates when the causes of action arose are deeply contested by both parties. On the one part the claimant states that his employment contract dated 09/08/2019 ended on 09/08/2021 and therefore when he filed his case before the tribunal on 07/2023 he was within the three year period contemplated under section 90 of the Employment Act.Conversely,the Respondent states that the claim became due on or about October 2019 yet the suit was filed on 07/02/2023 outside the three year limitation period.
22.On the issue of continuing injuries the two parties are still at variance as to when time starts running under the above statutory provision. For example, the Respondent states that the claim for unpaid salaries for October 2020 to July 2021 amount to continuing injuries and are consequently time-barred as they have been brought before this tribunal over one year since the cause of action accrued. On the other hand, the claimant disagrees and contends that the unpaid salaries do not constitute continuing injuries as claimed by the Respondent and therefore not barred by the 1 year statutory limitation for continuing injuries as contemplated under section 90 of the Employment Act.
23.In sum, we find that the preliminary objection dated 17/4/2023 does not raise pure points of law. The facts of the claim are highly contested and have to be ascertained. It is therefore our finding that this tribunal has jurisdiction to hear the claim.
24.It is therefore in consideration of this, as well as the parties’ submissions that the Tribunal makes the following orders:a. The preliminary objection dated 17/04/2023 is dismissed;b. The matter will be fixed for hearing;c. Costs in the cause.