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Republic v Sports Disputes Tribunal; Football Kenya Federation & 2 others (Exparte); FKF National Executive Committee & 50 others (Interested Parties) (Application 5 of 2022) [2023] KEHC 20326 (KLR) (Crim) (14 July 2023) (Judgment)
Neutral citation:
[2023] KEHC 20326 (KLR)
Republic of Kenya
Application 5 of 2022
J Ngaah, J
July 14, 2023
Between
Republic
Applicant
and
Sports Disputes Tribunal
Respondent
and
Football Kenya Federation
Exparte
Nicholas Mwendwa Kithuku
Exparte
Barry Otieno
Exparte
and
FKF National Executive Committee
Interested Party
FKF Leagues And Competitions Committee
Interested Party
Doris Petra Mao
Interested Party
Gordon Davis Chege
Interested Party
Michael Ouma Majua
Interested Party
Joseph Owuor Andere
Interested Party
Timothy Murithi Nabea
Interested Party
Ahmedqadar Mohamed Dabar
Interested Party
Bishop Tony Kwea
Interested Party
Gabriel Mghendi
Interested Party
Benard Korir Lagat
Interested Party
David Kipkorir Bunei
Interested Party
Margaret Anyango Omondi
Interested Party
Chris Amimo
Interested Party
Dimba Patriots Football Club
Interested Party
Mayenje Santos Football Club
Interested Party
Kibera Soccer Women FC
Interested Party
Cabinet Secretary For Sports And Youth Affairs
Interested Party
Samson Cherop
Interested Party
Murang’a Seals Football Club
Interested Party
Vihiga Bullets
Interested Party
Mathare United FC
Interested Party
Gusii FC
Interested Party
Fortnue Sacco FC
Interested Party
Nairobi County Football Association
Interested Party
Baringo County Football Association
Interested Party
Taita Taveta County Football Association
Interested Party
Machakos County Football Association
Interested Party
Vihiga County Football Association
Interested Party
Tana River County Football Association
Interested Party
Busia County Football Association
Interested Party
ELGEYO MARAKWET COUNTY FOOTBALL ASSOCIATION
Interested Party
Laikipia County Football Association
Interested Party
Embu County Football Association
Interested Party
Kirinyaga County Football Association
Interested Party
Kitui County Football Association
Interested Party
Makueni County Football Association
Interested Party
Tharaka Nithi County Football Association
Interested Party
Nandi County Football Association
Interested Party
Bungoma County Football Association
Interested Party
Kakamega County Football Association
Interested Party
Mandera County Football Association
Interested Party
Kisumu County Football Association
Interested Party
Siaya County Football Association
Interested Party
Turkana County Football Association
Interested Party
Nyamira County Football Association
Interested Party
Nakuru County Football Association
Interested Party
Kisii County Football Association
Interested Party
Transnzoia County Football Association
Interested Party
Nyeri County Football Association
Interested Party
. Uasin Gishu County Football Association
Interested Party
Judgment
1.The motion before court is dated December 19, 2022. The applicants have moved this Honourable Court for an order of judicial review whose prayer is couched as follows:1.Order of certiorari do issue removing to the High Court for purposes of quashing the entire decision of the respondent dated December 6, 2022 in SDTSC No E036 of 2022 as consolidated with SDTSC No E038 o f2022 & E039 of 2022.”
2.The applicants have also asked for costs of the motion.
3.The application is brought under section 1A, 1B and 3A of the Civil Procedure Act; section 8 and 9 of the Law Reform Act and Order 53 Rule 1(1) (2) (3) and (4) of the Civil Procedure Rules. It is based on an affidavit sworn on December 8, 2022 verifying the facts relied upon and a statutory statement of even date. The affidavit is sworn by Barry Otieno, who has introduced himself as the general secretary and chief executive officer of Football Kenya Federation (which I will henceforth refer to as “the Federation”).
4.The origin of the dispute before this Honourable Court is a press statement issued on November 9, 2022 by Football Kenya Federation. The statement was signed by the Federation’s secretary and stated as follows:The resolution by the FKF national executive committee has been guided by the FKF statutes, FIFA statutes, FKF rules and regulations (2019) and the sports disputes tribunal rulings on a number of cases filed at the tribunal, regarding the 2021/2022 league season.”
5.A section of the Federation membership was aggrieved by this decision and so they lodged petitions before the respondent challenging the decision. According to the applicants, these petitions were registered as SDTC E036, E038 and E029 of 2022.
6.The respondent assumed jurisdiction and nullified the decision. In its pertinent part, the decision rendered on December 6, 2022 and which is the subject of these proceedings, read as follows:148.Having stated the foregoing, it will be evident by now that we have come to the conclusion that the decision of the national executive committee has no legal foundation, is a nullity and cannot be sustained. It is accordingly quashed.”
7.According to the applicants, this decision is ultra vires the powers granted to the respondent by section 58 of the Sports Act 2013.
8.The applicant’s case is that all decisions of the Federation and the National Executive Committee are appealable within the internal dispute resolution mechanisms as outlined in the Federation’s constitution. Again, rules 10.3.1 and 10.3.5 of the Federation’s Rules and Regulations Governing Kenya football (2019), members have the right to appeal against any decision made by Federation or any of its national committees to the Federation’s appeals committee.
9.According to the applicants, the jurisdiction granted to the respondent by the Sports Act, 2013 is appellate in nature except for the only one instance in section 58(b) where the respondent has jurisdiction to hear other sports-related disputes that all parties to the dispute agree to refer to the respondent and the respondent agrees to hear them.
10.The applicants contend that in entertaining the dispute before it, the respondent arrogated itself jurisdiction which it does not have. And in doing so, the respondent disregarded the doctrine of exhaustion of internal dispute resolution mechanisms as enunciated by the Court of Appeal in Geoffrey Muthinja Kabiru & 2 Others versus Samuel Munga Henry & 1756 Others (2015) eKLR where it is said to have been held that where a dispute resolution mechanism exists outside courts, the same must be exhausted before the jurisdiction of the court is invoked and that courts ought to be approached as a last resort and not as the first port of call when a storm brews.
11.The respondent did not file any response to application.
12.Dick Arudo filed a replying affidavit on behalf of the 15th interested party opposing the application. He does not dispute that the respondent made the impugned decision but urges that it had the requisite jurisdiction to entertain the dispute out of which the decision arose.
13.He has also sworn that the 2nd and 3rd applicants were removed from office on July 19, 2022 in SDTSC No 006 of 2022, Milton Nyakundi Oriku versus FKF & 17 Others and that in Football Kenya Federation & 2 Others versus Cabinet Secretary for Sports, Culture and Heritage & 5 Others; Kariobangi Sharks Football Club & 7 Others (2021) eKLR the court held that the removal from office of the 2nd and 3rd applicants was lawful.
14.Contrary to the orders of the court, the 2nd and 3rd applicants together with the 3rd to 14th interested parties convened an executive committee meeting and issued the resolution of November 9, 2022 which, among other things, nullified the whole of 2021/2022 football season.
15.Arudo admitted, though, that rule 10.3.1 and 10.3.5 of the Rules and Regulations Governing Football in Kenya (2019) require that parties to a dispute to first lodge an appeal to the appeals committee. He, however, contended that the resolution of 9 November 2022 was not envisaged and, in any event, the persons who purported to make the resolution were not legally in office.
16.He further swore that his club, Dimba Patriots F.C. had participated in the 2021/2022 division one league and was due for promotion to the national super league before the Federation’s national executive committee nullified the 2021/2022 season.
17.The only other replying affidavit in this matter was sworn by Robert Kenneth Wanyoike Macharia on behalf of Murang’a Seal Football Club, named as the 20th interested party in the application before court. Like Derick Arudo, Macharia has sworn that the 2nd and 3rd applicants were invalidly in office by dint of a gazette notice number 12374 of November 11, 2021 according to which the cabinet secretary for sports disbanded the national executive committee of the federation. The ousting of the applicants, it is urged, was upheld by Ong’udi, J in constitutional petition no E473 of 2021. The applicants are also said to have been removed from office in a decision by the respondent in case no E006 of 2021.
18.The applicants’ application, the responses filed thereto and the submissions made in respect of the positions parties have adopted in supporting or opposing the motion boil down to the question whether the respondent had jurisdiction to determine the dispute that led to the impugned decision. This, in my humble view, is the overarching question the determination of which should resolve the dispute before me, one way or the other. In considering the answer to this question, the provisions of the Sports Act, 2013 and the constitution of the Federation come to the fore.
19.Section 58 of the Sports Act is relevant because that is where the jurisdiction of the respondent is prescribed. This section reads as follows:
20.The Federation is one such national sports organisation contemplated under section 58 of the Act. This is apparent from article 1(1) of its constitution 1(1) Football Kenya Federation is an organisation of an associative nature registered in Kenya in compliance with the Sport Act. No. 25 of 2013 as a national sports organisation. It is formed for an unlimited period.
21.The dispute resolution mechanism in the Federation is set out in articles 69 and 70 of the Federation’s Constitution. Article 69 reads as follows:Article 70, on the other hand, states:1.Recourse may only be made to an arbitration tribunal in accordance with article 68 once all internal channels of FKF have been exhausted.2.FKF shall have jurisdiction on internal national disputes, i.e. disputes between parties belonging to FKF.3.FIFA shall have jurisdiction when international disputes, i.e. disputes between parties belonging to different associations and/or confederations.
22.While the Federation’s constitution emphasises in paragraph 2 of article 69 that arbitration as a means of dispute resolution should be given priority, paragraph 1 of article 70 is clear that recourse may only be made to an arbitral tribunal in accordance with article 68 once all internal channels of the Federation have been exhausted.
23.Paragraph 5 of article 9 gives a glimpse of what these “internal channels” are as far as the dispute out of which the impugned decision arose is concerned. That paragraph is to the effect that if any of the parties to a dispute in the Federation is dissatisfied with the decisions or rulings made by any of the standing committees and judicial committees, such a party is at liberty to lodge an appeal with the appeals committee whose decision shall be final unless stipulated otherwise in the Federation’s constitution.
24.For the avoidance of doubt, article 67 paragraph 2 of the FKF constitution states unambiguously that:2.The appeals committee is responsible for hearing all appeals against all decisions determined by all committees.
25.The appeals committee is itself established as one of the three judicial bodies in article 64 of the Federation’s constitution.
26.Although article 69 paragraph (5) intimates that the decisions made by the standing committees and judicial committees are final, I read ‘finality’ here to mean that parties to a dispute are precluded from invoking the jurisdiction of courts before exhausting the internal dispute resolution mechanisms prescribed by the Federation’s constitution.
27.This is made clearer in article 67 paragraph 3 of the constitution which discounts any notion that the decision of the appeals committee cannot be challenged. This paragraph reads as follows:3.Decisions pronounced by the appeals committee may be appealed to the Court of Arbitration for sports in Lausanne Switzerland or a national, independent arbitration tribunal recognised by FAF, as specified in this constitution.”
28.The respondent is a national independent arbitration tribunal recognised by Federation and to which appeals from the appeals committee would lie.
29.The impugned decision that is the subject of these proceedings ought to be dissected through the prism of the foregoing provisions of the Sports Act and the Federation’s constitution.
30.The caveat is that this court is not concerned about the merits or lack thereof of the decision. It is only concerned about the process by which the decision was arrived at. In that regard, the proceedings before the respondent and the ultimate decision it reached has to be weighed against the grounds of judicial review upon which the application has been made.
31.It is, of course, trite that courts may intervene to review a power conferred by statute on the ground of unfairness but only if the unfairness in the purported exercise of the power be such as to amount to an abuse of the power. See Preston v IRC [1985] 2 All ER 327, [1985] AC 835, per Lord Templeman.
32.And in Chief Constable of the North West Police vs Evans (1982) 3 ALL ER 141 at 154 it was held that:
33.It was held further in this case that:
34.It has already been demonstrated that the genesis of the dispute that eventually landed at the desk of the respondent is the Federation’s national executive committee’s resolution contained in a press statement released by its secretary or chief executive officer on November 9, 2022.
35.It has also been demonstrated that when the dispute concerning this resolution was submitted to the respondent for resolution it assumed jurisdiction and nullified the decision.
36.After considering the provisions of section 58 of the Sports Act on the extent of the respondent’s jurisdiction and the internal dispute resolution mechanisms in the Federation’s constitution, to which reference has been, I am persuaded that in assuming jurisdiction and eventually nullifying the Federation’s national executive’s decision, the respondent exceeded its jurisdiction by determining a dispute that ought to have been disposed of by the appeals committee.
37.As has been noted earlier, according to article 69(5) of the Federation’s constitution, decisions by any committee which, in my humble view, would include the national executive committee of the Federation, are appealed to the appeals committee and that recourse may only be made to the sports disputes tribunal once all internal channels have been exhausted.
38.In the English decision of R versus Peterkin, ex p Soni (1972) Imm AR 253 Lord Widgery CJ had this to say on the need to exhaust appellate avenues before moving to court:
39.Our very own Court of Appeal has held in the Speaker of the National Assembly v. Karume, Civil Application No. NAI 92 of 1992 that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.
40.And section 9 (2) of the Fair Administrative Action Act No. 4 of 2015 is also clear that this court should not entertain disputes whose resolution has been provided for elsewhere by an Act of Parliament. It states as follows:
9.(2)Procedure for judicial review.
41.The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
42.I am minded that the respondent is not a court as contemplated in these decisions and provision of the law but the need to exhaust internal dispute resolutions mechanisms would apply to tribunals such as the respondent as much as it applies to the courts.
43.To the extent that the internal channels had not been exhausted, the respondent’s decision would fall for exceeding its jurisdiction. It would fall on the judicial review ground of illegality.
44.This ground, among other grounds for judicial review, was defined Lord Diplock in Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410. The learned judge said:
45.By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.
46.The respondent, by assuming jurisdiction which it did not have, can properly be said to have misapprehended the provisions of section 58 of the Sports Act and the provisions in the Federation’s constitution relating to internal dispute resolution mechanisms. It can also be said that the respondent failed to give effect to these provisions.
47.Accordingly, an order of certiorari is hereby issued quashing the respondent’s decision dated December 6, 2022 in SDTSC No 36/2022 as consolidated with STDC No E038 of 2022 and STDC No E038 of 2022 and SDTC No E039 of 2022.
48.Before I conclude, there were two other applications dated January 20, 2020 by two of the interested parties. They sought, amongst other reliefs, interim reliefs. The substantive motion having been determined, the applications serve no useful purpose. Except for the prayers in those applications that have been granted, the rest of the prayers are declined. Parties will bear their respective costs. Orders accordingly.
SIGNED, DATED AND DELIVERED ON 14 JULY 2023NGAAH JAIRUSJUDGE
