Tribunal Case E003 & E008 of 2023 (Consolidated)

Case Metadata
Case Number:	Tribunal Case E003 & E008 of 2023 (Consolidated)
Parties:	Gikonyo v Kenya Karate Federation & 4 others
Date Delivered:	20 Jun 2023
Case Class:
Court:	Sports Disputes Tribunal
Case Action:	Decision
Judge(s):	J Njeri Onyango, Gabriel Ouko, A.M Owinyi
Citation:	Gikonyo v Kenya Karate Federation & 4 others (Tribunal Case E003 & E008 of 2023 (Consolidated)) [2023] KESDT 372 (KLR) (Civ) (20 June 2023) (Decision)
Court Division:	Civil
County:	Nairobi
Disclaimer:	The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

Gikonyo v Kenya Karate Federation & 4 others (Tribunal Case E003 & E008 of 2023 (Consolidated)) [2023] KESDT 372 (KLR) (Civ) (20 June 2023) (Decision)

Neutral citation: [2023] KESDT 372 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Civil

Tribunal Case E003 & E008 of 2023 (Consolidated)

J Njeri Onyango, Chair, Gabriel Ouko & A.M Owinyi, Members

June 20, 2023

Between

James Mwangi Gikonyo

Appellant

and

Kenya Karate Federation

1^st Respondent

Enos Ngungu Muguku

2^nd Respondent

Gabriel Mutuku Ngingai

3^rd Respondent

Biutha Manwa Mosomi

4^th Respondent

As consolidated with

Tribunal Case E008 of 2023

Between

James Mwangi Gikonyo

Appellant

and

Kenya Karate Federation

1^st Respondent

Enos Ngungu Muguku

2^nd Respondent

Gabriel Mutuku Ngingai

3^rd Respondent

Biutha Manwa Mosomi

4^th Respondent

Sports Registrar

5^th Respondent

Decision

The Parties

1.The petitioner in both matters is a Karate player and certified coach and states that he is a member of the Respondent Federation.

2.The First Respondent is the Kenya Karate Federation (hereinafter “KKF”) a National Sports Organization responsible for managing and running the Sport of Karate within the Republic.

3.The Second, Third and Fourth Respondents are the officials of the First Respondent holding the positions of President, Secretary General and National Treasurer of the KKF respectively.

4.The fifth Respondent in petition No E 008/2023 is the Registrar of Sports being the holder of the office created under the provision of Section 46 of the Sport Act 2013 (hereinafter “the Act”) responsible for the registration and regulation of sports organizations and multi-sports bodies representing sports organization at National level in accordance with the provisions of the Act.

The Claim

Petition No. E003 of 2023

5.The Claim as set out in the Petition filed at the Tribunal on 2^nd February, 2023 is that on 28^th February ,2022, and 24^th May, 2022, the Respondents indefinitely and arbitrarily suspended the appellant from the KKF. That the Appellant only learnt of the stated suspension in December 2022 through his e-mail but had not been alerted of the same by the Respondents. That the said decision was taken without granting him any form of hearing or opportunity to defend himself.

6.Further, it is the Petitioner’s position that the alleged suspension was not undertaken in conformity with the Constitution of KKF, which requires such action to be undertaken by the Independent Disciplinary Appeals Committee (hereinafter “IDAC’) which was yet to be constituted. Therefore, the action to suspend him undertaken by the National Executive Committee (hereinafter ‘NEC’) was without jurisdiction thus ultra vires, is null and void. The petitioner therefore brought the petition to challenge the said suspension under the provisions of Section 58 of the Act.

Petition No. E008 of 2023

7.The parties in this petition are the same as in E003/2023 save for the addition of the Sports Registrar as the 5^th Respondent. The gist of the petition is that the 1^st Respondent was registered about 3^rd March 2021. That prior to the registration the 2^nd and the 3^rd Respondent resigned on 7^th December 2019 and 2^nd July 2020 respectively, and were replaced by a Mr. Joseph Marubu (not a party in the petition).

8.The Petition states that the Registration of the 1^st Respondent was made on conditions, one of which was that it should conduct elections within 90 days from the date of registration, a period which had already lapsed, thus the Federation was non-compliant with the conditions of Registration.

9.It is further pleaded that the KKF has failed to register County Associations as required by the 5^th Respondent (hereinafter the “Registrar’) and despite the noncompliance, the 2^nd to 4^th Respondents continue to run, manage and control the KKF yet their continued stay in office is illegitimate.

Preliminaries

10.Petition No. E003 first came up on 2^nd February, 2023 before the Chairman of the Tribunal who certified the matter as urgent and set the same for a mention interparty on 7^th February 2023. On that day, both Counsel for the Petitioner and the Respondents were present. The tribunal directed as follows;1.The matter is certified as urgent;2.The matter is set for mention on 7^th February 2023 at 2:30pm via Microsoft Teams or such other medium as the Tribunal shall determine.

11.When the matter came up for hearing on the 7^th March, 2023 the parties were not ready to proceed. By consent, the hearing was stood over to 14^th March 2023 at 2.30p.m.

12.On the 14^th March 2023, the parties appeared and were ready to proceed. However, the petitioner had by then filed Petition in E008 of 2023 which joined the Registrar as a party who had not been served and thus was not present. The Tribunal then directed as follows;i.Petitions No E003 and E008 of 2023 be and are hereby consolidated.ii.Mr. Chege Kamau to serve the 1^st to 4^th Respondents Counsel as well as the Sports Registrar with the Petition documents immediately.iii.Parties to file their respective Responses within seven (7) days.iv.Mention on 21^st March 2023 for further directions.

13.On 21^st March 2023, the matters were mentioned before the Panel. The parties were not ready as the Respondents had not filed their responses. The Panel issued the following Directions:i.The 1^st to 4^th Respondents to be granted leave to file and serve their Response within fourteen (14) days in respect of petition E008 of 2023.ii.Corresponding leave granted to the Petitioner to file any further response deemed necessary within 3days of service.iii.Hearing on 3^rd May 2023 at 2. 30p.m.

14.At the Hearing on 3^rd May 2023, the 5^th Respondent through Mr. M. Munene had filed and served a Replying Affidavit. The same had been served late and out of the leave period granted for filing by the Panel. Mr. Chege for the petitioner applied to have the said Response struck out. Upon consideration, the panel directed as follows;i.The Petitioner be granted leave to file a response to the Replying Affidavit by the Registrar. Same to be filed and served on or by 11 a.m. on Friday 5^th May.ii.Hearing will be on Monday 8^th May at 2. 30p.m

15.This matter proceeded for hearing on 8^th May when the parties called their respective witnesses who were examined by the other parties Counsel. Upon close of the hearing, the parties elected to file written submissions on or by 16^th May 2023. The matter was mentioned on 16^th May 2023 to confirm compliance. On 16{{^th} May 2023 the Panel reserved its decision for delivery on 20^th June, 2023.

Substantive Claims and Evidence

16.In regard to the petition in E003/2023, the petitioner has pleaded that the decision by the Respondents therein violated his rights to a fair hearing and fair administrative action as guaranteed in Articles 47 and 50 of the Constitution and Sections 4(3) and (4) of the Fair Administrative Act rendering the decision null and void .The Petitioner also stated that the decision violated his right to Association guaranteed by the Article 36 of the National Constitution .Further, it is pleaded that the impugned decision violated his right to livelihood under Art 26 of the Constitution as he cannot participate in Championships or tournaments. In his evidence at the Hearing on 8^th May 2023, he also stated that he was a certified coach at a club and that the suspension meant that he could not coach. Therefore, whereas he was employed as a Civil Servant in the Department of Housing, he was denied the extra income he made at his free time as a coach.

17.With regard to the power to make the decision and action to suspend, the Petitioner’s case is that the 2^nd to 4^th Respondents did not have the mandate to take such action. It was his position that the KKF Constitution placed that power on an IDAC. That there was no IDAC in place as it has never been constituted in the terms set out in the KKF Constitution under Regulation 22(1). In fact, the Petitioner argues, there is no properly constituted NEC, as no elections in accordance to Regulation 32 of KKF has been conducted, and no AGM has been held to ratify the formation of an IDAC. Indeed, the Petitioner argued there has never been an AGM since the KKF was registered under the Act. That the last AGM was held in 2018. The decision to suspend him taken by the alleged NEC is therefore ultra-vires.

18.It is the Petitioner’s position that the impugned decision is unreasonable, irrational and based on inaccurate information, that is, that the Petitioner had made demand for a claim for refund of funds through an Advocate thus taking the KKF to Court. The decision itself was also challenged as being unreasonable and malicious, not duly supported by evidence and that it was indefinite, thus infringing on the Petitioner’s rights under Article 29 of the Constitution.

19.From the foregoing, the Petitioner prayed that;i.The Appeal be allowedii.A declaration do issue that the decision to suspend the Appellant dated 28^th February and 24^th May,2022 is illegal, null and void.iii.An order that the decision to suspend the Appellant dated 28^th February and 24^TH May, 2022 be set aside.iv.The cost in the matter be to the petitioner (Appellant)

20.In support of the Petition, the Petitioner relied on his Witness Statement, which he adopted as evidence in chief. He also produced the two letters bearing the impugned decision, and the Constitution of KKF bearing the clauses relied upon.

21.In respect to Petition No. E003 of 2023, the Applicant relied on the following documents;i.The petition dated 27^th January 2023ii.The Affidavit supporting the petition sworn on 27^th January 2023 with the annexures thereto.iii.The Supplementary Affidavit sworn on 3^rd March 2023.

22.As regards Petition No. E008 of 2023, the petitioner relied on;i.The Petition dated 3^rd March 2023ii.The Supporting Affidavit of an even date together with the annexures. iii. The Supplementary Affidavit sworn on 5^th May, 2023.Those documents were all admitted in evidence by consent of the parties.

23.The Petitioner challenges the continued holding on to office of the 2^nd to 4^th Respondents in the capacities detailed as they are not in office legally, having violated the conditions upon which the KKF was given registration. That the conditions required that elections of KKF be conducted within 90 days from registration on 3^rd March,2021 that is on or by 2^nd June 2021. This did not happen and the Registrar extended time for compliance for another 90days on 13^th June 2021 but despite that extended time lapsing, no elections have been held yet the 2^nd to 4^th Respondents continue to hold themselves out as officials of KKF.

24.The Petitioner faults the 5^th Respondent for failing to crack the whips on both the KKF and the registered interim officials being the 2^nd to 4^th respondents. On their failure to comply with the conditions for registration set out in the certificate of registration. The petitioner sets out the act of violation of the Act as follows;SUBPARA i.The Federation has not carried out elections in accordance with Rule 6ii.The 5^th Respondent has declined to exercise her powers as provided under Section 51 and 57 iii. The terms of the certificate of registration have not been complied withiv.The office bearers presented at the time of registration are different from the ones appearing in the official searchv.The books of account are inconsistentvi.The unauthorized officials have usurped the powers of the organs of the Federation namely, the National Executive Committee which as per the Constitution of the Federation is constituted during elections and its resolutions approved by the general meeting.

25.The petitioner has thus prayed for the following reliefs;i.The petition herein be allowedii.That this Honourable Tribunal be pleased to declare that the Federation is non-compliant with the Sports Act and conditions of its registration certificate.iii.That this Honourable Tribunal be pleased to order that the 5^th Respondent does exercise her powers under Section 51 and Rule 7 of the Sports Act and cancel registration of the Federation.iv.That this Honourable Tribunal be pleased to restrain the Federation from conducting or organizing any Championships and or Tournament and or eventv.That this Honourable Tribunal be pleased to restrain the 2^nd and 3^rd Respondents herein from holding themselves and transacting on behalf of the Federation as the Chairperson and Secretary General of the Federation.vi.That the Honourable Tribunal be pleased to restrain the 2^nd to the 4^th Respondent from holding themselves and transacting on behalf of the Federation as the office bearers of the federation.vii.That The Honourable Tribunal be pleased to issue all necessary and appropriate directions in the matter.viii.The petitioner be awarded costs

1st to 4^th Respondents Case

26.The Respondents, KKF and the named officials of KKF, objected to the petition by the petitioner. A Replying Affidavit deponed by Mr. Gabriel Mutuku, referred to as the Secretary General for and on behalf of the Respondent dated 8^th March,2023 was filed. The same was adopted as Evidence in Chief at the hearing.

27.It is the said Respondents’ position that the Petitioner is a “troublesome member who stands suspended from ALL KKF activities since February 2022 for gross misconduct. The Respondent also deems the sanction meted on the Petitioner as legal and procedural and in accordance with the KKF Constitution Article 22 (4) (b) and (c) as well as Article 5. Paragraphs 5 to 8 of the Replying Affidavit of Mr. Mutuku, set out the misconduct actions by the petitioner that led to his suspension and states at paragraph 9“That I have read the Petitioner’s petition and the annexures therein and find the same to be a gross misrepresentation of the facts as the petition is wholly fabricated and untrue since Federation’s National Executive Council, represented by the 2^nd to 4^th Respondents, are lawfully in office following the dictates of Section 46(2) pf the Sports Act 2013 and section 46(7) of the same where the certificate is taken to be conclusive evidence of authority to operate as a Federation throughout the country of Kenya.”

28.At paragraph 10 of the said Affidavit, the Respondent challenges the jurisdiction of the Tribunal as it is stated that the Petitioner has not exhausted the internal dispute resolution mechanism of the KKF. The Respondent further alleges that the petitioner had a chance to be heard by a full plenary as per its letter of 1^st March, 2022 which he failed to take advantage of. The minutes of 16^th July 2022 of the Respondent’s NEC have been produced to support this position.

29.The Respondent thus prays for a dismissal of the petition and for the suspension to be allowed to stand for “gross misconduct”.

30.In the submissions filed, the Respondents have taken the position that the Petitioner is the author of his own misfortune and thus should not be aided by the Law or Equity. That he is suffering from his misdeeds.

Petition No E008/2023

31.In regard to Petition No. E008 of 2023, the 1^st to 4^th Respondent have taken the position that the Petition against them is misguided; that the lack of compliance has been caused by financial strains leading to non-registration of the requisite County Associations thus an AGM (Elective) cannot be held. It is submitted that this is a “spec” on the Federation due to operational challenges which ought not to be held against the Federation or its officials.

32.At the hearing, the Respondents adopted the contents of the Replying Affidavit sworn by the 3^rd Respondent, Gabriel Mutuku, which was produced in evidence (Affidavit sworn on 12^th April, 2023 and filed on the same day)

33.Paragraph 9 of the said Affidavit deposes that the 2^nd to 4^th Respondents are in office lawfully based on the provisions of Sections 46 (2) and 46 (7) of the Act. Paragraph 10 to 16 of the same dwell on the suspension of the petitioner which is not an issue raised in the Petition No. E008/2023.

34.At paragraph 28 and 29, Mr. Mutuku states;“28.That we have not received any notice nor adverse letter from the Registrar’s office instructing on the time limits nor any defaults on our part nor on the alleged lack of legitimacy on our board and operations as a Federation.29.That the registration exercise is still undergoing within our Federation despite great effort to encourage stakeholders to adhere to the requirements of the Law so we are fully functioning to the lawful position.”

35.The Respondents accuse the petitioner of being propelled by personal ambition to ascend to the leadership of the KKF hence Petition No. E008/2023.

36.The Respondents have raised the question of the procedural jurisdiction of the Petition on the basis that the Petitioner has not exhausted the internal dispute resolution mechanisms before filing of the Petition, Paragraph 38 states;“38.That I have further been informed that the application and petition herein are incurably defective as against the Petitioner for failure to seek arbitration of the disputes on matters election, membership and suspension etc. to the Sports Registrar pursuant to Regulations 45(2) of the Sports act 2013, at the point of filing of the Application and Petition.”

37.The 1^st to 4^th Respondents therefore urge that both petitions be dismissed

5^th Respondent Case

38.The Respondent filed a Replying Affidavit sworn on the 3^rd May 2023. The Affidavit confirms that the 1^st Respondent filed an Application for Registration and was registered on 3^rd March 2021. The Certificate of Registration issued had conditions. That the Application was made by the 2^nd to 4^th Respondents.

39.The Registrar confirmed that the KKF did not transit as envisaged under the Act (within one year of the Act coming into Law). Therefore, on its Application for Registration, the KKF would be treated as a new Sports Organization. That together with that registration, and in accordance with paragraph 4(3) (c) of the Sports Registrar Regulations of 2^nd September 2016, the KKF collected forms for registration of County Associations on 11^th October, 2019. An extension of time to comply with the Registration Conditions was granted as contained in a letter of 24^th June, 2021.

40.The Registrar then at paragraph 14 to 16 of the Affidavit depones as follows;“14.That it was in the interest of ensuring that players were not barred from participating in events that the Sports Registrar has considered giving them time to comply with the Act and it is my belief that it is for the same reason that the Sports Act empowered the Sports Registrar to issue certificates with conditions. I am conversant to the fact that the Federation is facing financial constraints therefore registration of counties has been a hurdle for the Federation taking into consideration that the three interim officials imitating the registration need to be cleared by various government integrity institutions (KRA, Helb, CRB, DCI, NSSF, NHIF) and most of them require payment of prerequisite fee.15.That the above particular situation is not only affecting Karate Federation but nearly all other federations and cancelling one certificate will mean cancelling more than three quarters of certificates issued to various sports organizations starting from national all the way to clubs.16.That it is my prayer that Kenya Karate Federation officials be given a chance to complete the process of registering their various county associations and therefore be compelled to submit the application forms for the counties to the Sports Registrar to enable registration within two months from date of the directive in order for them thereafter embark on election process for the Federation which should also be held within four months from the date of the Tribunals directive.”

Analysis and Determination

41.Having set out the competing positions of the parties as above, the Panel determines that the following issues arise for determination.i.Whether or not the Sports Dispute Tribunal has jurisdiction to hear and determine the matters raised in Petitions E003 and E008 of 2023?Depending on the determination on the issue above;ii.Whether or not the petitioner’s suspension is lawful and in line with KKF Constitution and Applicable National Laws?iii.Whether or not the KKF is compliant with the provision of the Sports Act and the Conditions of Registration and competent to operate?iv.Whether the 2^nd to 4^th Respondents are in office illegally?v.Whether or not the 5^th Respondent has neglected or failed to enforce compliance?vi.What orders are appropriate in the circumstances?vii.Who shall bear the cost of the Petitions?

Whether or not the SDT has jurisdiction to hear and determine the matters raised in Petitions E003 and E008 of 2023

42.The 1^st to 4^th 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 28^th February and 24^th May ,2022 gave Notice of Suspension to the Petitioner.

43.Paragraph 38 of the 3^rd Respondent’s Replying Affidavit dated 12^th April, 2023 states;“38.That I have further been informed that the application and petition herein are incurably defective as against the Petitioner for failure to seek arbitration of the disputes on matters election, membership and suspension etc. to the Sports Registrar pursuant to Regulations 45(2) of the Sports act 2013, at the point of filing of the Application and Petition.”

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 1^st 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;“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

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 1^st to 4^th 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 12^th 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 16^th 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 1^st to 4^th 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;Fortune Ladie FC Vs Ali Amour (sued as the Chairman Of The FKF Caretaker Competition and Leagues Committee and others (SDTSC NO. E001 of 2022) and as consolidated with Young Boys FC Ali Amour (sued as the Chairman of the FKF Caretaker Competition and Leagues Committee and others (SDTSC No. 002 of 2022)46.In previous decisions, the Tribunal has expressed the position that the Tribunal will cloth itself with Jurisdiction where it is sufficiently demonstrated that if it fails to do so an Applicant or a party will be left without recourse or an avenue for resolution of the grievance.47.In the matter of Williamson vs Football Kenya Federation which is also quoted in the case of Jacob Keli Mutungi & 3 others vs Ambrose Rachier & 3 others [2019] eKLR, this Tribunal expressed itself as follows:“The obligation upon the Tribunal is to ensure there is a mechanism for legal redress, The Tribunal acts as the avenue subject to the provisions of the Sports Act where Legal redress can be sought.”48.To enable the Tribunal to adjudicate the matters before it, it would be imperative that a party, to some degree demonstrates that the alternative avenue is either unavailable or insufficient or one which cannot be easily accessible.49.The Tribunal has considered the submissions of the Petitioner in SDTSC No. E001 of 2022 which offer guidance in making a determination on the availability, sufficiency and accessibility of the internal resolution mechanism as per the terms of Article 67 (2) of the FKF Constitution set out above.

50.In doing so, the Tribunal is guided by the dicta of Mativo J in Republic vs Chief Land registrar and another [2019] eKLR in which he relied on the South Africa decision of Vuyile Jackson Gcaba vs Minister for Safety and Security First and others case CCT 64/08(2009) ZACC 26 and stated as follows:“Jurisdiction is determined on the basis of pleadings and not the merits of the case. The South African Constitutional Court [11] had this to say: -“Jurisdiction is determined on the basis of pleadings, [12] and not the substantive merits of the case….. In the event of the Court’s Jurisdiction being challenged on the at the outset (in limine), the Applicant’s pleadings are the determining factor. They contain the legal basis of the Claim under which the Applicant has chosen to invoke the Court’s competence …..”

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;“94While our jurisprudential policy is to encourage parties to exhaust and honour alternative forums of dispute resolution where they are provided for by statute (See The Speaker of National Assembly vs James Njenga Karume 41), the exhaustion doctrine is only applicable where the alternative forum is accessible, affordable, timely and effective. Thus, in the case of Dawda K. Jawara vs Gambia42 it was held that:"A remedy is considered available if the Petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success and is found sufficient if it is capable of redressing the complaint totality]...the Governments assertion of non-exhaustion of local remedies will therefore be looked at in this light ...a remedy is considered available only if the applicant can make use of it in the circumstances of his case."95.In the case of R. vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others Ex Parte The National Super Alliance (NASA) Kenya43 after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the Court held:[46]What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case, the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it.[47].This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake.”

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;REF: Notice of your Indefinite Suspension from Karate Activities For Gross MisconductWe wish to refer to the subject matter above mentioned.The Executive Committee of the Kenya Karate Federation in its meeting held on 12th December 2021 passed a resolution unanimously that you Immediately Suspended Forthwith from all Kenya Karate Federation activities together with all affiliates. They said was informed by the following chronology of events among other outstanding issues;1.That on 14th September 2021, you informed the KKF President through a voice call and text message from your phone number +2540724373367 that you were allegedly owed some money by the KKF through the Hon. Secretary General.2.The KKF President call for an urgent meeting of the Executive Committee to discuss the same sometimes shortly after as it was very alarming and unjustified.3.The resolve after that KKF Executive meeting passed a motion that you do a letter and attach any relevant documents to support your claims if true and present the same to the KKF treasurer within a week after the meeting.4.The same information was passed to you by the KKF President immediately after the meeting.5.Instead of complying with that decision you chose instead to engage a lawyer who wrote a demand notice/ threatening letter to the KKF President and Secretary over the alleged money owed to you.6.That further to your conduct unbecoming, you continue holding the Certificate of Registration of the Federation contrary to the regulations guiding the keeping of such documents to which you were to immediately surrender the same to the Hon. Secretary General but to date and despite several pleas by the undersigned you chose to ignore the same and continue to illegally detain the said documents that are property of the Federation.7.Further to this you staged a walk out of the KATA team training when referees requested for the Team on date 16th October 2021 that was preparing for the world Championships at the Kasarani annex 2hall.8.Employing a lawyer to engage with the KKF when you are still a player and official of the Nairobi Metropolitan Branch of the KKF contravenes section 23 of the KKF constitution that requires you to apply in house conflict resolution mechanism.

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 1^st to 4^th 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 28^th 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 28^th 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 1^st 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:Min 3/16/7/2022: Disciplinary IssueDr. Mosomi took members through cases where one suspended Athlete for gross misconducts by Name James Gikonyo Mwangi had opened a wattsup group, added many karate exponents and gone a step further to critically condemning the Federation posting offices matters on Social Media. It was also noted the said member was indulging in Karate training with some members who failed to observe the rules and regulations as far as Karate was concerned thus violating the constitution vehemently. The meeting wanted some of the KKF Executive Members issued with letters prompting them to explain their actions contrary to the Kenya Federation Constitution.

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“The meeting wanted some KKF executive members” issued with letter prompting them to explain their actions contrary to the Kenya Karate Federation Constitution.”There is therefore, no record of any “decision” made as against the Petitioner on the serious issues raised against the Petitioner’s misconduct in the minutes.

78.A further curious issue is that the grounds set out for suspension as per letter of 28^th 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 1^st 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 1^st respondent is in compliance with the terms of its Registration.ii.The officials in office are legitimately holding the respective offices iii. The 5^th 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 4^th March 2021 issued by the 5^th 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 1^s Respondent is not complaint with the conditions set out above. Accordingly, the Petitioner submits the 1^st Respondent’s officials in office are holding the said offices illegally and the 5^th 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. 21^st 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 3^rd Respondent has stated that the KKF was registered under Certificate No. SRO 1363, on 4^th 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 2^nd to 4^th 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 1^st to 4^th 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 11^th 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 1^st to 4^th 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 31^st 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 16^th 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:The electoral system shall comply with the following principles—a.freedom of citizens to exercise their political rights under Article 38;b.not more than two-thirds of the members of elective public bodies shall be of the same gender;c.fair representation of persons with disabilities;d.universal suffrage based on the aspiration for fair representation and equality of vote; ande.free and fair elections, which arei.by secret ballot;ii.free from violence, intimidation, improper influence or corruption;iii.conducted by an independent body;iv.transparent; andv.administered in an impartial, neutral, efficient, accurate and accountable manner.

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 1^st to 4^th 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 5^th 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 2^nd to 4^th 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 1^st 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 1^st 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 1^st to 4^th 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 1^st to 4^th 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 4^th Respondents shall in consultation with the 5^th Respondent compile a list of current members of the 1^st Respondent in good standing and eligible to attend the 1^st Respondent’s AGM and agree on the basic requirements for the conduct of the 1^st Respondent’s elective AGM;5.The 1^st to 4^th Respondents shall cause to be held a General Meeting of the 1^st Respondent aimed at obtaining approval and ratifying any necessary decisions or documents necessary in preparation of an Elective AGM of the 1^st Respondent, failing which the interim officials currently in office shall cease to hold office.6.The 1st to 4th Respondents in consultation with the 5^th 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, 25^th 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 1^st to 4^th Respondents.

Dated this 20^th Day of June 2023SIGNED............................ Mrs. J Njeri Onyango, FCIArb, Chairperson..............................Mr. Gabriel Ouko, Member .......................................Mr. Allan Owiny, Member

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Tribunal Case E003 & E008 of 2023 (Consolidated)

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