Whether or not the SDT has jurisdiction to hear and determine the matters raised in Petitions E003 and E008 of 2023
42.The 1st to 4th Respondents in Petitions E003 and E008 raised the question of the jurisdiction of this Tribunal to hear and determine the petitions. The Respondents do concede that the Petitioner is a member of the KKF. It is also not denied that the KKF by letters dated 28th February and 24th May ,2022 gave Notice of Suspension to the Petitioner.
43.Paragraph 38 of the 3rd Respondent’s Replying Affidavit dated 12th April, 2023 states;
44.We understand the Respondents to challenge not the substantive jurisdiction of the Sports Tribunal but rather, the procedural jurisdiction based on the Doctrine of Exhaustion. Simply put, the Petitioner may have a grievance, but before coming here he should first have appealed to the 1st Respondent’s relevant organ on his suspension and to the Registrar in regard to the alleged Non-Compliance of the Conditions of registration contained in the Certificate of Registration.
45.The Panel finds that the laws that would be applicable to this dispute include the Constitution of Kenya 2010, the Sports Act No. 25 of 2023, the Sports Registrar Regulations 2016, the Constitution of KKF 2019 as well as National Statutes enacted to enforce personal rights under the Constitution of Kenya
46.It is now well established that a Preliminary Objection on a point of Law which when taken would dispose of the suit, must be addressed first before any other issue is considered. In the case of Owners of the Motor Vessel “Lilian’ vs. Caltex Oil (Kenya) Ltd (1989) KLR, Justice Nyarangi JA stated as follows;
47.The Tribunal’s Jurisdiction is statutory and is set out as Section 58 of the Act.Section 58 provides as follows;58.Jurisdiction of the Tribunal 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; andc.appeals from decisions of the Registrar under this Act.
48.The 1st to 4th Respondents have in regard to the question of disciplinary steps taken on the Petitioner and on the challenge to their holding various offices in KKF stated that disciplinary measures were legitimately taken and that any issue should then be sorted out in accordance with Regulation 45(2) (d) of the Sports Act. (see Paragraph 38 of the Replying Affidavit of Gabriel Mutuku dated 12th April 2023). The said section is as follows;45.Sports Registrar2.The Public Service Commission shall appoint the Sports Registrar who shall be—(d)responsible for the arbitration of registration disputes between sports organizations.
49.In our view, that section applies to “disputes between Sport Organizations “. The current dispute is not between Sport Organizations. It is between a member, the Federation and persons holding themselves out as its officials. Further, it is our considered view that the provision does not and cannot oust the jurisdiction of Sports Disputes Tribunal as set out at Section 58 of the Act.
50.In considering the Respondents’ objection, we have reviewed the provisions of the Constitution of KKF, 2019. Powers of the National Executive Committee are granted at section 39 (n) which is set as follows;39.Powers of the National Executive Committee…………………………………………n.To take sanctions whenever appropriate against individuals, players, officials, clubs or organisations found guilty of violation of this Constitution, rules and regulations prescribed from time to time. The sanctions may include the following;i.Warningii.Reprimandiii.Fineiv.Disqualification from competitionv.Loss of match or reversal of resultsvi.Modification of competition resultsvii.Discharge from official positionviii.Suspension of a member for alleged misconduct or other reason pending investigation into the matter. Provided that any case of suspension shall be presented to the succeeding AGM, which shall either lift the suspension, extend it or expel the member based on Independent Disciplinary and Appeals Committee (IDAC).ix.Expulsion of a member based on Independent Disciplinary and Appeals Committee (IDAC)
50.Further on matters Discontinuance of Membership and Discipline of members, sections 21 and 22 of the KKF Constitution, which for obvious reasons precede Section 39, provide as follows;21.Discontinuance of Membershipa.Subject to this Constitution, any Member who has paid all monies due and payable to the Federation and has no other liability (contingent or otherwise) to the Federation may resign from the Federation by giving a three-month notice in writing to the Federation of such intention to withdraw or resign and upon the expiration of that period of notice, the Member shall cease to be a Member.b.A Honorary Life Member may resign in writing without giving notice.c.Upon the expiration of any notice period applicable above, an entry, recording the date on which the Member who or which gave notice ceased to be a Member shall be recorded in the Register.d.Notwithstanding anything contained in this constitution, where a Member fails to comply with his/her financial and reporting obligations under these Rules or By-Laws, the National Executive Committee may determine that Member to be not of good standing.On determination that a Member is not of good standing, the NationalExecutiveCommittee may give notice to the Member of:e.the National Executive Committee’s determination; and the grounds for the National Executive Committee’s determination; and request that the Member show cause within one month from the date of that notice why action should not be taken against the Member. The Member’s failure to respond or act to the National Executive Committee’s satisfaction (including assurances or compliance with its obligations) may result in the suspending or terminating the Member’s membership of the Federation, or otherwise imposing such conditions on the Member’s membership, as the National Executive Committee sees fit.f.A Member who ceases to be a Member, for whatever reason, shall forfeit all rights in and claim upon the Federation and its property including Intellectual Property. Any Federation documents, records or other property in the possession, custody or control of that Member shall be returned to the Federation imediately.g.Membership which has lapsed, been withdrawn or terminated under this Constitution may be reinstated at the discretion of the National Executive Committee, on application in accordance with this constitution and otherwise on such conditions as it sees fit.h.Where a Member Branch ceases to be a Member in accordance with this Constitution or the Act, the Individual Members and Affiliates of that Member Branch may cease or remain Members to the extent (if any) and for such time (if any) as is determined in the sole discretion of the National Executive Committee and on satisfying all the terms and requirements of their respective membership forms.i.Suspension and expulsion of members shall be at an AGM. The NEC will float such proposals and they may be ratified or rejected.22.Discipline of Members or Persons Under The Jurisdiction of the Federation1.The KKF will establish the Independent Disciplinary and Appeals Committee which shall oversee the disciplinary issues and resolve conflicts between members, clubs, branches and affiliates.2.The Independent Disciplinary and Appeals Committee (IDAC) will be Ad-hoc and composition determined by NEC.3.The pool of members from which the ad-hoc committee will be drawn, shall be proposed and adopted at every AGM.4.Where the NEC is advised upon the recommendations of IDAC that a Member or a person under the jurisdiction of the Federation has allegedly:a.Breached, failed or neglected to comply with a provision of this Constitution, the By-Laws or any resolution or determination of the Federation or any duly authorized delegated entity; orb.Acted in a manner unbecoming of a Member or a person under the jurisdiction of the Federation prejudicial to the objects and interests of the Federation and/or karate orc.Brought the Federation or the sport of Karate into disrepute.
52.On its part, on Resolution of Disputes Section 62 provides as follows;62.Resolution of DisputesAll disputes arising between the parties touching on any provisions of this Constitution shall be resolved through internal mechanisms among the affected parties and if the parties cannot reach an amicable settlement, the dispute shall be referred to the Sports Dispute Tribunal for a solution which shall be binding and final. (Emphasis ours)
53.The Petitioner has stated that the KKF has not held an A.G.M since 2018. This assertion has not been challenged. The current Constitution came into effect in 2019, which is conceded. The Respondents have in their Replying Affidavit stated that there is a National Executive Committee in place. We will comment on this assertion below. They however have not demonstrated to any degree, the availability of an IDAC which would then allow action as envisaged by section 39 (n) (VIII). In our view, it is necessary, albeit mandatory to have in place an IDAC. In the absence of an IDAC, it is our view that KKF or its NEC cannot be a proper dispute resolution forum in respect of the specific disputes set out in the Petitions before the Tribunal. The process as we see it, is that any allegations of a disciplinary nature against a member or an affiliate, MUST first be dealt with by the IDAC under section 22 before the operations of the powers under Section 39 come into effect.
54.On the other hand, the provisions of Section 62 of the KKF Constitution as set out above, in our view, related only to the interpretation of the Constitution. In any event, the section also points to the requirements of an existing internal dispute resolution mechanism from which, if no solution is found, the jurisdiction of the Sports Dispute Tribunal is recognized. Further, the Constitution KKF submits to the jurisdiction of CAS and The Sports Disputes Tribunal. See Section 10 (e) of the KKF Constitution.10.Fundamental Principles of the Federation.a.The Federation shall work towards ensuring that all people irrespective of age, gender, disability, ethnicity, creed, or social status have a genuine and equal opportunity to participate in the sport of karate at all levels and in all roles as a player, coach, referee, administrator or any other capacity. b. The systems and procedures that are set up within the Federation shall be implemented consistently without bias or discrimination. In this regard, the selection of the Kenya national teams and the technical personnel for the teams shall be done in good time and transparently using fair criteria; and that the criteria for authorization and registration of sportspersons and sportspersons' representatives shall be codified, transparent and fair.c.Particular care should be taken to guard against the more subtle and unconscious types of discrimination, which can result from preconceptions about the capabilities or characteristics of particular groups.d.The Federation shall recognize and adopt the anti-doping policies and rules as set out by the World Anti-doping Agency (WADA) and other regional anti-doping agencies.e.The Federation shall also subscribe to the Court of Arbitration for Sports Policies and Rules and adopt internal arbitration in resolving disputes. It shall recognize the Sports Disputes Tribunal as set out under the Act.
55.It has not been claimed or demonstrated by the Respondents to any degree or at all, that there exists an internal forum already established in accordance with the KKF Constitution, which would be a point of call for any party, affiliate or member of KKF to approach to seek resolution of his/ its dispute either with the Federation, another member or an organ of the KKF.
56.The only organ which appears to be in place, which is also debatable, is the NEC and apparently a Referees Commission as per the letter to members dated 16th March 2022. The NEC being the mover of the Petitioner’s suspension, and being the subject of the challenge on its legitimacy in Petition No. E008 can certainly not be the proper forum for any meaningful internal dispute Resolution as proposed in the objection to the Sports Disputes Tribunal’s jurisdiction. Under the Objectives of the KKF, the NEC at sub section (h) is obliged to “Ensure compliance with the Constitution and other rules and regulations of WKF “. The onus to demonstrate compliance therefore and that the relevant organs of KKF as per the Constitution are in place is upon the 1st to 4th Respondents.
57.In SDTSC no. E001 of 2022 as consolidated with SDTSC NO. E002 OF 2022 this Tribunal at paragraph 46 to 50 expressed itself as follows;
58.The position finds support in the case of Mohammed Ali Baadi and Others vs The Attorney General and 11 Others, (2018) eKLR, cited by the Petitioner in their Written submissions where it is stated that;
59.This Panel is satisfied that there is sufficient demonstration in the present instance that there does not exist within the KKF as presently constituted, an available, sufficient, accessible and competent mechanism or organ for internal dispute resolution. For that reason, this panel determines that the Tribunal has the requisite jurisdiction to hear and determine the matters before it in terms of the provision of section 58 of the Act.We Shall Therefore Proceed to consider the other Issues Framed For DeterminationWhether or not the Petitioner’s suspension is lawful and in accordance with the KKF Constitution and Applicable National Laws?
60.The Petitioner has complained that sometimes in December 2022 he opened his email and found an email from the Respondent containing a letter dated 28/2/2022, suspending him indefinitely. The letter of 28/2/2022 is set out as follows;
61.The Petitioner has argued that the action was contrary to Article 47 of the Constitution which provides;47.Fair administrative action1.Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.2.If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.3.Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—(a)provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and
62.The petitioner has also relied on Sections 4 (3) and 4 of Fair Administrative Action Act, Act No. 4 of 2015. The same are as follows;4Administrative action to be taken expeditiously, efficiently, lawfully etc(3)Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision–a.prior and adequate notice of the nature and reasons for the proposed administrative action;b.an opportunity to be heard and to make representations in that regard;c.notice of a right to a review or internal appeal against an administrative decision, where applicable;d.a statement of reasons pursuant to section 6;e.notice of the right to legal representation, where applicable;f.notice of the right to cross-examine or where applicable; org.information, materials and evidence to be relied upon in making the decision or taking the administrative action.(4)The administrator shall accord the person against whom administrative action is taken an opportunity to–a.attend proceedings, in person or in the company of an expert of his choice;b.be heard;c.cross-examine persons who give adverse evidence against him; andd.request for an adjournment of the proceedings, where Necessary to Ensure a Fair Hearing.
63.In response, the 1st to 4th Respondents have not denied the suspension. If we understand their Counsel‘s submissions, their position is that the Petitioner is guilty of being a nuisance to the Federation (his hands are dirty) and he should not cry wolf on his suspension. He cannot derive an advantage from his own wrongdoing. On this they rely on the case of Gabriel Mbui vs Mukunda Muraya (1993) KLR.
64.The said Respondents at paragraphs 11 to 14 of the Replying Affidavit of Gabriel Mutuku Ndingai , confirm the indefinite suspension of the petitioner and set out the reasons for his suspension.
65.It is notable that those allegations in the Affidavit as above remain just that, ‘allegations’. They have not been substantiated or supported in any manner in these proceedings and in any event, this would not be the forum to prove or disprove the same. There has been no forum to test their veracity.
66.The concern for this Panel as regards the Petition is the process, not the reasons leading to the suspension. The Respondents have not demonstrated that a Notice was served upon the Petitioner to attend before any properly constituted panel or organ of the KKF to answer to the allegations levelled against him contained in the various paragraphs of the Replying Affidavit referred to above.
67.The letter of 28th February 2022 was the first trigger to the dispute on the Petitioner’s suspension. The letter cited at Paragraph 60 above.
68.It is clear that the decision is taken by the KKF NEC and that the suspension is indefinite.
69.The relevant sections 22 and 39 are as follows;22.Discipline of Members or Persons Under the Jurisdiction of the Federation1.the KKF will establish the Independent Disciplinary and Appeals Committee which shall oversee the disciplinary issues and resolve conflicts between members, clubs, branches and affiliates.2.The Independent Disciplinary and Appeals Committee (IDAC) will be Ad-hoc and composition determined by NEC.3.The pool of members from which the ad-hoc committee will be drawn, shall be proposed and adopted at every AGM.4.Where the NEC is advised upon the recommendations of IDAC that a Member or a person under the jurisdiction of the Federation has allegedly:a.Breached, failed or neglected to comply with a provision of this Constitution, the By-Laws or any resolution or determination of the Federation or any duly authorized delegated entity; orb.Acted in a manner unbecoming of a Member or a person under the jurisdiction of the Federation prejudicial to the objects and interests of the Federation and/or karate orc.Brought the Federation or the sport of Karate into disrepute.39.Powers of the National Executive Committeen.To take sanctions whenever appropriate against individuals, players, officials, clubs or organisations found guilty of violation of this Constitution, rules and regulations prescribed from time to time. The sanctions may include the following;i.Warningii.Reprimandiii.Fineiv.Disqualification from competitionv.Loss of match or reversal of resultsvi.Modification of competition resultsvii.Discharge from official positionviii.Suspension of a member for alleged misconduct or other reason pending investigation into the matter. Provided that any case of suspension shall be presented to the succeeding AGM, which shall either lift the suspension, extend it or expel the member based on Independent Disciplinary and Appeals Committee (IDAC).ix.Expulsion of a member based on Independent Disciplinary and Appeals Committee (IDAC)
70.The letter of 28th February 2022 as above cited is not in compliance with Sections 21 and 39 (n) (i) to (vii) of the KKF Constitution. The NEC in our view only has power to suspend a member pending further dealing on the same by the IDAC. Under Section 22 on Discipline of Members, the IDAC (constituted under Section 22 (i) would make a recommendation on issues under Section 22 (4) (a) to (c) which recommendation or decision would be adopted as provided for under section 39 (n) (viii). The NEC must also specifically comply to issuance of Notice as set out at Section 21 of the Constitution.
71.The letter in question firstly made an indefinite suspension which the NEC had no power to determine or issue. The effect and contents of the same, in our interpretation, communicates a final decision without any information to the Petitioner of the process to be adopted for his disciplinary hearing as per Sections 21 and 22 of the KKF Constitution, nor does it set out a procedure for appeal in that matter.
72.Further, there is no mention of any process to be used by the Respondents for affording the Petitioner a chance to provide a defence to the allegations set out against the Petitioner. He is not invited to make any response, only that he has a right of appeal, but not to which organ and in what manner. In his evidence at the hearing Mr Mutuku stated that they wanted or expected the Petitioner to go to the NEC and they would have a talk. But we ask, where is that information in the letter of suspension, how was the Petitioner to know who to approach, in what manner or when? When was he served with that Notice? And, is that the process envisaged in the Constitution?
73.The Affidavit of Mr. Mutuku has provided annexure “GM 4” which is merely an Email Send-out Print-out of 1st March, 2022- regarding ‘INFINITE SUSPENSION” (SIC)- There is nothing to show whether and when the same was received. There is therefore nothing to dispute the statement by the Petitioner that he saw this in December 2022. So, the 7 days’ notice contained in the penultimate paragraph of that letter are of no use. The Petitioner has questioned why nothing was send to him on his known cellphone WhatsApp contact which has been used previously to communicate with him.
74.The letter of suspension asks the Petitioner to seek an Apology from the NEC meaning he has been found guilty of the accusations. Apologies are a consequence of admission of a wrong either after a hearing or on own reflection of the circumstances.
75.We have looked at the minutes of the NEC meeting of 16/7/2022, annexure, “GM 5” which the Respondent seeks to rely upon. We note that these are minutes of a NEC meeting and not an IDAC meeting properly constituted for purposes of a disciplinary process as envisaged in the KKF Constitution. One of the items in the Agenda is “MIN 3/16/7/2022: Disciplinary Issue” is recorded as follows:
76.That minute as recorded poses various issues. First, there is no indication that the person /subject of that Disciplinary Discussion had been notified that the matter of his conduct will be discussed at that meeting. No confirmation that due notice was issued inviting him to defend himself or make any form of presentation on the serious allegations. The complaints are from the very NEC Members. They are the prosecutors, jury and judge. Yet, as established above they did not have the KKF Constitutional mandate to deal with issues of disciplinary hearing and making a final determination on disciplinary complaints.
77.The last sentence in minute 3/16/7/2022 is even more curious. It states
78.A further curious issue is that the grounds set out for suspension as per letter of 28th February 2022 are rather different from those now set out at paragraphs 10 to 14 of the Replying Affidavit by Mr. Mutuku and those discussed in the above cited minutes. In fact, it would appear from the minutes that these are further complaints against the Petitioner who it is stated was already under suspension.
79.The letter of suspension itself is also worrying. It would appear that the major issue as we read it, was that the Petitioner has sought legal advice and assistance in pursuing a money claim against the 1st Respondent, suggesting that there is a provision barring legal representation of members.
80.The tenets of the Principles of Natural Justice require that a person be granted a fair opportunity to be heard in his/her defense however heinous or serious the accusations are even when it is alleged the breach or breaches committed are “obvious” for all to see. First, the person has to know the charges confronting him. He /she must then be allowed time to respond with known timelines, who to respond to and the process to be adopted to hear the charges. All that should be conducted by organs with the mandate to process the disciplinary hearing.
81.As cited above, the KKF Constitution envisages a situation where a party or member of the Federation is availed an opportunity to be heard. The elaborate process of appointing members of the IDAC which requires approval at an A.G.M is a fair reflection of the serious consideration given to matters discipline and possible consequences. Even the IDAC recommendations on suspension or expulsion require adoption/ approval or ratification by the A.G.M.
82.Article 47 and 50 of the Constitution and Section 4(3) and (4) of the Fair Administrative Action Act apply to all decision-making organs as a minimum in ensuring that before one is condemned to suffer any adverse consequences, they are granted a fair hearing. We hasten to add that by reason of the provisions of the Act, Sport Federations are public bodies open for membership to the public. They often receive funding form the Ministry, therefore, the Constitution of Kenya and relevant Statues apply to the Respondent and its relationship to its members.
83.This panel having reviewed the style and manner of actions taken by the NEC finds that the actions were contrary to and in breach of the Petitioner’s right to be granted an opportunity to know the accusations levelled against him and to be granted a fair hearing both under the KKF Constitution and relevant cited provisions of the National Constitution and the Fair Administrative Actions Act. Indeed, the style of actions can best be described as cavalier. The decision in our view is irrational and unlawful.
84.It is therefore our considered finding that the Petitioner’s indefinite suspension was unlawfully made by an organ without the mandate to do so, it is not only wrongful, it is a nullity. The same cannot be allowed to stand. We therefore quash the same.Whether in terms of the applicable lawsi.The 1st respondent is in compliance with the terms of its Registration.ii.The officials in office are legitimately holding the respective offices iii. The 5th Respondent has failed to enforce compliance
85.The sub-issues set out above are inter-twined. It is therefore proposed to deal with them together.
86.The Petitioner has produced a Certificate of Registration No. 304 dated 4th March 2021 issued by the 5th Respondent under Section 47 (1) of the Act. The same contained the following conditions:1.That the organization complies with the Sports Act and any other relevant law.2.That the organization reviews its Constitution in line with the Constitution of Kenya 2010, the Sports Act No. 25 of 2013 and its international statute.3.That the organization holds elections within ninety days from the date of registration.4.That the organization develops short, mid and long-term Strategic Plans.And notifies that “Failure to comply with any of the above conditions May lead to cancellation of the Certificate”.
87.The Petitioner argues that the 1s Respondent is not complaint with the conditions set out above. Accordingly, the Petitioner submits the 1st Respondent’s officials in office are holding the said offices illegally and the 5th Respondent is guilty of neglect of duty in failing to take action to compel compliance with the law.
88.It is not contested that the KKF was originally operating as a Society registered under the Societies Act. The Sports Act came into effect in 2013. Sport Federations, teams, clubs or Organizations dealing in Sports were required to transit and cause their registration under the Act within one (1) year, that is by 2014 ( August 2014). Clearly the KKF did not transit. The provisions of the Act could therefore not be strictly imposed on it for the period prior to date of registration i.e. 21st March 2021. We note that an extension to enable compliance was granted for a further 90 days in June 2021. That period lapsed without further extension.
89.The Replying Affidavit of the 3rd Respondent has stated that the KKF was registered under Certificate No. SRO 1363, on 4th March, 2021. However, the Certificate of that date that we have seen is No. 304 with the conditions we have set out above. Certificate 1363 has not been availed by the deponent of the said Affidavit.
90Paragraph 9 of the stated Affidavit depones that the fact of Registration is conclusive evidence of authority to operate as a Federation. While this is true, it does not take away the Petitioner’s concerns in regard to compliance with the terms and conditions imposed under that very registration. Not to forget that the Act also provides for possibilities of cancellation of the same.
91.The Panel reminds the 2nd to 4th Respondents that their Application aimed at Registering the KKF under the Act after the period allowed for Transition could only hold them as interim officials and not substantive office holders. Consequently, there was need to comply particularly with the Requirements to hold elections and to align the KKF Constitution 2019 to the Act, Registrar Regulations 2016 and other Applicable Laws such as the National Constitution and the Anti-Doping Act. The delay in so doing cannot be lightly brushed off.
92.The Replying Affidavit has castigated the Petitioner on his actions on claims that the Petitions are actuated by malice and personal interests to wrestle the leadership of the Federation. The Petitioner, denied this in his testimony. We, however, do not see any issue if the petitioner would wish to contest for a position. The Constitution of Kenya and the Sports Act allows him to do so and to have those ambitions. Sports Federation positions, like all other elective offices in Public organizations such as the KKF (funded by the sports Fund), should be open for all persons considering themselves interested to join as members and if qualified to contest for any leadership position they deem fits their relevant qualifications/ ambitions. Section 47 (6) of the Act, directs that ALL National Sports Organizations under the Act SHALL be open to the Public in their leadership, activities and membership
93.It is stated by the Respondents that the reason for non-compliance is the difficulties encountered in meeting the threshold for registration of County Associations- according to the Registrar Regulation 2016, at least 24 County Associations. This is attributed to the alleged high cost of meeting the documentation requirements from intended interim officials, which in any event are a Constitutional threshold under Chapter six (6) of the National Constitutional. However, none of the 1st to 4th Respondents have demonstrated what, if any, effort has been applied towards this end. With this failure, the same Applicants cannot chest thumb and say they are legitimately in office because the certificate of Registration has not been cancelled. The Certificate was issued on conditions, as evidence of the Registration of Sports Organization under the Act, not to confer rights to the officials. As Interim officials, they had a limited term to hold office. That term and the extended period lapsed, which fact is not denied.
94.On her part, the Registrar in her Replying Affidavit also states that the County Associations should be in place and that it is costly to put them in office due to the costs associated with the requisite documentation. We take note that forms for that purpose were collected on 11th 0ctober 2019. More than two years as of the dates of the Petition, only one (1) County Association has been registered. In the absence of evidence of the efforts made to comply, would this delay be considered reasonable viewed against the need to give effect to the requirements of the Act? We think not.
95.Further the Registrar both under the Act and the Regulations, is the keeper of records and Regulator. It’s our view that it is the duty of the office of the Registrar to hold to account those that hold office as interim officials to act timeously towards compliance with the conditions for granting registration and not want to be moved by members concerned with the delays in compliance or raise objection’s when such persons approach the Tribunal seeking enforcement of compliance.
96.We note that the KKF Constitution places the responsibility to Register County Associations upon the NEC. See Section 50. The 1st to 4th Respondent cannot rely on the failure to register County Associations to fail to meet the bare minimum under the existing Constitution. For instance, it is not denied that there has been no AGM since 2018, when the current officials were elected into office. The existing Constitution has provision for AGM. Section 30 (a) requires that a General Meeting of the Federation be held annually and not later than the 31st day of December each year. This implies that there has to be an annual gathering of present stakeholders as presently constituted. What the Registrar may not have allow is an “Elective AGM” before compliance on registration of the County Associations or in our view an agreed formula to get the elections going as shall be set out below. We have not been told of efforts to, say customize the Constitution to align with the Conditions in the Certificate of registration or to set the strategic plans for the Federation. Or for that matter to put in place the various Administrative organs set out in the Constitution. One of the objectives in the Constitution, (Objective(i)) charges the NEC with the responsibility to provide Strategic Plans and annual budgets and to present them at the AGM. We would therefore wonder how this can be done without holding AGMs , a fact that has not been denied.
97.The effect of the failure to have regular stakeholder meetings means that the interim officials who applied for registration, can and have continued to hold office and make and enforce decisions some of which are subject to ratification by other organs of the KKF. For how long can this go on? Such a position would put the management of sports in this country back to the unregulated position pre2013 Act. The very mischief intended to be curbed by the provision of the Act especially the regulations on the frequency of elections and limitations of the tenure of office for vital offices of Federations would be defeated.
98.It is even curious that there being only 3 registered “interim officials”, the KKF has a NEC in place with at least 11 persons as per the minutes of 16/7/2022. It has also gone ahead to run programs and make appointments of persons to committees, as well as to collect annual Affiliation Fees as per the letter of 16th March, 2022 (annexure Gm 2 of Affidavit filed on 12/4/2022) . In its recent decision in SDTCS No. E010 of 2023; John Odhiambo Ogaraversuskenya Volleyball Federation at Paragraphs 71-75 the Tribunal had this to say;71.It is the responsibility of the Federation in the first instance to act in compliance with its own constitution in relation to the conduct of its elections and other affairs. Such fidelity to the Constitution is what gives legitimacy to the functions and processes of any sports organisation.72.Counsel for the Federation urged that we allow the Federation to have continuity in the conduct of its affairs by allowing the elections to be held. He disclosed in the same breath that the current office holders have had their terms of office extended more than three (3) times.73.We think it will be clear by now that the Panel elevates legitimacy over continuity. It is legitimacy which will stand the Federation in good stead as it conducts its affairs, including the excellent performances on the sporting field which Counsel highlighted.74.Article 81 of the Constitution of Kenya sets out the general principles of the electoral system as follows:
75.Universal suffrage simply refers to the right of all adult citizens, subject to qualification, to vote at an election. The question therefore is whether there is justifiable basis for excluding institutional members from voting at the national level and for not facilitating the holding of elections at county branch level before these counties can select legitimate delegates to represent them at the national elections.
99.On its part, the Constitution of the KKF at Section 38 provides as follows;38.General Principles for ElectionsThe electoral system shall comply with the following principles:1.freedom of citizens to exercise their political rights under Article 38 of the Constitution of Kenya 2010;2.not more than two-thirds of the members of NEC shall be of the same gender;3.universal suffrage based on the aspiration for fair representation and equality of vote; and4.free and fair elections, which are;a.by secret ballot;b.free from violence, intimidation, improper influence or corruption;c.conducted by an independent body consisting of a panel of more than five members;d.transparent; ande.Administered in an impartial, neutral, efficient, accurate and accountable manner.
100.The Constitution of the Federation has provided various definitions in regard to membership. These include;a.Member Branch means an entity recognized under this Constitution to administer Karate in its particular area.b.National Executive Committee (NEC) means the National Executive Committee of the KKF, the governing institution responsible for the execution of the decisions of the General Meetings.c.Member Branch means an individual or a body affiliated to KKFd.Club mmeans any karate team or set of teams affiliated to the member branch of Kenya Karate Federation.
101.The KKF Constitution also has the following provisions on membership;12.Members of the Federation1.The General Meeting shall consider and, if considered fit, approve applications for membership from County Karate Sports Associations, Karate clubs, individuals and such other classes of members as are hereinafter provided for and upon becoming members to the Federation such persons shall be referred to as members of the Federation.2.Each member of the Federation shall as a condition of their continued membership:a.be bound by, and comply with this Constitution, the Constitution of WKF, and any regulations or by-laws made there-under,b.be bound by and comply with the anti-doping policies and rules as shall be applicable under the provisions of the World Anti-Doping Code; andc.Any person, organization or other entity not directly affiliated with the Federation but engaged in the organization of karate games in any way whatsoever shall be bound by the provisions of Article 9 above.3.Provided that the Federation may refuse membership to any group or person after assigning reasons for its decision. Such a group or person, whose membership has been refused, if otherwise eligible for membership, shall have the right to appeal to a general meeting.13.Classes of Member/branchesThe Members of the Federation shall consist of the following classes:a.County Karate Sports Associations registered with the office of Registrar of Sports;b.Honorary Members;a.Ordinary membersb.Disciplined Servicesc.Learning Institutionsd.Karate Style Associationse.Other new classes of Members, created in accordance with Article 14 below.14.Creation of new Categories of MembershipThe General Meeting has the right and power from time to time to create new categories of membership with such rights, privileges and obligations as are determined applicable (other than voting rights), even if the effect of creating a new category is to alter rights, privileges or obligations of an existing class of Members.14.County Karate Sports AssociationsThese will be the member branches of the Federation. They will be required to register with the KKF before making an application for registration with the Registrar of Sports. Upon approval they will be required to pay an annual subscription fee of Kshs.10, 000 or as it will be reviewed by the NEC from time to time.
102.The Provisions of the KKF Constitution section 38 conform squarely with the Provision of the National Constitution as cited above. This therefore means that the KKF is obliged to conduct open, fair, inclusive and legitimate elections to foster its own legitimacy and that of its NEC. The NEC itself has a duty to uphold its legitimate existence which includes holding regular AGMs and complying with the conditions set out in the Certificate of Registration. We think that the current Constitution provides for various membership categories and not only County Associations. We also think that those existing/ alternative members can, upon agreement between the Interim Officials or NEC, in consultation with the Registrar, formulate a method to allow for holding of an elective AGM to legitimize the holding of office of such persons as shall be elected as the Federation seeks long-term strategies to comply with the conditions issued to include County Associations. We think that sufficient guidance can be borrowed from the Supreme Court Advisory Opinion in Advisory Opinion No. 2 of 2012 where the Court guided that where it is not possible to comply immediately with the requirements of the law (Constitution of Kenya; Gender Rule), a progressive approach to conformity can be adopted without breaching the law.
103.Clearly the 1st to 4th Respondents are in full operations and thus in a comfort zone, other actions to comply with the Registration conditions and the Constitution have apparently taken a back seat.
104.The 5th Respondent has urged the Panel not to take adverse steps that would disrupt the running of the sport. There is no dispute that there is noncompliance with the Conditions set out in the Certificate of Registration. While the Registrar’s proposal could be considered reasonable, it is our view that it is equally important to issue such directions and orders as would propel the 2nd to 4th Respondents towards compliance with the conditions set out in the Registration Certificate and thus to comply and conform to the applicable National Laws under which the registration was effected. It is in the best interest of the Sport and its membership. We think that the continued failure to comply with both the KKF Constitution and the conditions of registration would in fact undermine the efficient and democratic administration of the KKF and be detrimental to the progress of the Sport.
105.It is curious that the Registrar holds out a position that suggests that the requirements of the Regulations in the Registrar Regulations 2016 are superior to the provisions of the Act. It cannot be so. Our understanding is that regulations are made to give effect to the provisions of Statutes and serve the intent and spirit of the Statute. Accordingly, where the regulations are or appear to hinder the very requirements of the Statute, it is the Regulations that must give way to allow for the effective compliance with the substantive requirements of the Act. To this end, if the registrar as expressed in her Affidavit, is of the considered view that the requirements are too stringent or expensive to meet, then it is upon the Registrar in consultation with the affected Federation to come up with modified terms and conditions that are achievable while ensuring that the integrity of the intent and spirit of the Sports Act is achieved. That, in our view, is the reasoning behind the provisions allowing the Registrar room to either cancel the Certificate or inquire into the compliance of the terms and conditions in the certificate of registration
106.From the forgoing, we find that the Petitioner’s complaints cannot be stated to be without merit and it is therefore our view that the Tribunal is obliged to give such directions as shall ensure the compliance to the conditions of the Certificate of registration and by extension to the Act. We therefore make orders as herein below;
107.Before we embark on the final orders, we shall shortly deal with the questions raised regarding the of Accounts of the 1st Respondent. We are of the view that this Panel cannot at present delve into the matter and would prefer that the same be properly raised within the Federation by way of a query which if not sufficiently addressed can also be taken up in a properly constituted AGM of the 1st Respondent as a member’s motion. In so doing there will be full chance to canvass for the explanations needed where necessary obtain the Auditors’ explanations and to make further appeals if need be.OrdersHaving given due consideration to the respective parties’ evidence, witness statements and Submissions, we find that the Consolidated Petitions herein are meritorious. We therefore order and direct as follows1.Petitions Number E003 and E008 both of 2023 succeed2.A declaration be and is hereby made that the Suspension of the Petitioner stated to have been made by the 1st to 4th Respondents is in contravention to the rules of Natural justice, Applicant’s right to be heard and contrary to the KKF Constitution, the National Constitution and The Fair Administrative Act. The same is hereby quashed.3.The 1st to 4th Respondents shall cause to be published and served, a Notice to all its members and Affiliates, relevant National Organizations and its International Federation the fact of the lifting of the suspension within 14 days of this decision.4.The 1st to 4th Respondents shall in consultation with the 5th Respondent compile a list of current members of the 1st Respondent in good standing and eligible to attend the 1st Respondent’s AGM and agree on the basic requirements for the conduct of the 1st Respondent’s elective AGM;5.The 1st to 4th Respondents shall cause to be held a General Meeting of the 1st Respondent aimed at obtaining approval and ratifying any necessary decisions or documents necessary in preparation of an Elective AGM of the 1st Respondent, failing which the interim officials currently in office shall cease to hold office.6.The 1st to 4th Respondents in consultation with the 5th Respondent shall take steps to ensure the holding of elections of the KKF within 120 days from the date of this decision7.The officials of the 1st Respondent presently holding office will continue in office for a period of 120 days from the date of this decision in order to ensure continuity in the activities of the Federation and facilitate compliance to the orders and directions herein granted.8.This matter shall be mentioned periodically before the Tribunal for the purposes of monitoring compliance with these directions. The first such mention to be held on Tuesday, 25th July, 2023 at 2.30 pm.9.The costs in both Petitions E003 of 2023 and E008 of 2023 are awarded to the Petitioner as against the 1st to 4th Respondents.