3.The matter was commenced vide a Petition dated May 11, 2023 and amended on May 22, 2023.
4.Simultaneously with the Petition an application was filed by way of Notice of Motion of the same date which was brought under a Certificate of Urgency and a Supporting Affidavit (‘the Application’) dated May 11, 2023.
5.The Application sought various declarations and conservatory orders, the main purpose of which was to urge the Tribunal to stop the conduct of the Respondent’s Annual General Meeting scheduled for May 14, 2023 pending the hearing and determination of the Application and subsequent Petition filed therein.
6.Upon considering the Application, the Tribunal declined to certify it as urgent and issued the following directions dated May 12, 2023:-i.That the Application for a temporary order of injunction restraining the Respondent from conducting the Annual General Meeting scheduled for May 14, 2023 pending the hearing and determination of this Application is declined;ii.That the Application be served upon the Respondent forthwithiii.That the matter be listed for mention for directions on Tuesday May 16, 2023 at 2:30 pm via Microsoft Teams
7.On May 16, 2023, the Sports Dispute Tribunal held a mention of the case via Microsoft Teams. The Petitioner represented by Ms Ouko, the Respondent was represented by Mr Asembo.
8.During the hearing, the Tribunal made the following directives:i.The Tribunal determined that the Application filed on May 11, 2023 had been overtaken by events. It was noted that the Annual General Meeting (AGM) of the concerned organization had already taken place by this date, rendering the original application no longer applicable.ii.The Applicant/Petitioner was granted leave to amend their Pleadings, allowing them to modify the initial documents filed with the Tribunal. The deadline for the Applicant's advocates to amend, file, and serve the Amended Pleading was set for May 19, 2023.iii.The Respondent was directed to file their Response to the Applicant's Amended Pleading by June 2, 2023.iv.The Applicant/Petitioner was required to file and serve any Further Response, if necessary, within three (3) days of receiving the Respondent's Response.v.The case was scheduled for the next mention on June 6, 2023 at 2:30 pm via Microsoft Teams or any other medium determined by the Tribunal. Further directions would be provided during this mention.vi.The Tribunal Chair constituted a panel for the proceedings, with the composition communicated to the parties.vii.On June 6, 2023, the parties appeared before the Tribunal and further Mentions of the matter were fixed for June 13, 2023 and July 12, 2023.
9.The Petitioner filed an amended petition on June 22, 2023, presenting the following case.
10.The Respondent had issued a notice of the Annual General Meeting (AGM) to be held on April 15, 2023. Subsequently, the Respondent postponed the AGM to May 5, 2023, and later issued another notice dated April 14, 2023, purporting to hold the AGM on April 30, 2023. The AGM was once again postponed, and the Respondent issued a notice on May 1, 2023, setting the AGM for May 14, 2023.
11.The Petitioner contends that the notice of the AGM scheduled for May 14, 2023 was illegal and invalid, citing the provisions of Article 8(1) of the Kenya Basketball Federation Constitution that provides for timelines of holding the Federations AGM.
12.The Petitioner argues that the notice was also incompetent as it was not issued within a period of 21 days prior to the AGM, contrary to Article 8(6) of the Kenya Basketball Federation Constitution.
13.Moreover, the Petitioner asserts that the notice lacked compliance with Article 8(6) of the Kenya Basketball Federation Constitution, as it was not accompanied by the audited accounts and statements of account for the year 2022 within the required 21-day period.
14.The Petitioner raises concerns that some delegates, including clubs, County branches, commissions, and others, did not have valid registration certificates as required by the Kenya Basketball Federation Constitution. The relevant provisions are found in Article 8(4) read together with Article 4(1)(i), (ii), (iv), (v), (vi), and (vii). According to these provisions, only bona fide delegates are entitled to participate in the AGM.
15.As a consequence of the aforementioned non-compliance, the Petitioner contends that the intended AGM scheduled for May 14, 2023 and any deliberations and decisions made during the meeting would be illegal, invalid, and incompetent.
16.The Petitioner emphasizes that the Kenya Basketball Federation Constitution serves as a guiding document for the conduct of the Respondent and its designated delegates and stakeholders. Compliance with the Constitution is essential to ensure transparency and accountability, especially given that the Respondent is a public body utilizing public funds.
17.The Petitioner further highlights that as a public body, the Respondent is obligated to adhere to the Constitution of Kenya, particularly the principles of leadership and integrity outlined under Chapter Six. This chapter enshrines the values and principles of public service, including accountability, transparency, and integrity.
18.In light of the above, the Petitioner urges the Sports Dispute Tribunal to intervene and ensure that the Respondent complies with its Constitution and the Constitution of Kenya. The Petitioner seeks the Tribunal's assistance in upholding the principles of transparency, accountability, and respect for the rule of law.
19.On July 18, 2023, the Respondent through its Secretary General forwarded a replying affidavit to the Tribunal opposing the Petitioner's claims. Though it appears that administratively the same had not been sighted on the filing system, its contents were nonetheless responded to by the Petitioner in its Submissions and thus formed part of the record with no prejudice to any party.
20.The Respondent opposed the amended petition in its entirety, considering it frivolous, vexatious, and a political ploy to discredit the Respondent and the sport of basketball.
21.In response to the specific claims made by the Petitioner, the Respondent countered as follows.
22.The Respondent contested the Petitioner's standing, claiming that the Petitioner had no legitimate stake in the affairs of the Respondent's AGM as he was neither a player, coach, referee, sponsor, nor representative of bona fide members.
23.The Respondent explained that the AGM initially scheduled for April 15, 2023 was postponed in solidarity and mourning of an individual's passing, as they held a significant role within the sporting community, thus complying with constitutional provisions, specifically Article 11(1), (3), (5) & (6) and Article 12(1),(4).
24.The Respondent denied any change in the place and time of the AGM, refuting the Petitioner's allegations.
25.The Respondent clarified that the statements of account were provided to the bona fide member delegates in due time with the AGM notice, and no delegate complained about missing them.
26.The Respondent stated that the AGM had already taken place, with 62 bona fide member delegates in attendance, rendering the Petition overtaken by events.
27.The Respondent argued that submitting audited accounts to the Sports Registrar was not required in the circumstances of the Petition.
28.In conclusion, the Respondent believed that the Petition lacked merit and should be dismissed with costs. The Respondent asserted that the Petitioner's claims were unfounded and motivated by malice, seeking the Tribunal's dismissal of the Petition.
29.Having taken into account the parties’ pleadings written submissions, the Tribunal finds that the following issues present themselves for determination:i.Whether the Tribunal has Jurisdiction to hear the Petition herein?ii.Whether the petitioner has locus to institute this petition?iii.Whether the notice for the Annual General Meeting was issued procedurally?iv.Whether the delegates to whom the Notice of the Annual General Meeting was issued were properly constituted?
Whether the Tribunal has Jurisdiction to hear the Petition herein
30.On the perusal of the pleadings herein, it is noted that the issue of this Tribunal’s jurisdiction has not been raised by any party. Consequently, it can be concluded that the matter is not in contention.
33.Accordingly, the jurisdiction of this Tribunal stems from Section 58 of the Sports Act which provides as follows:‘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.'
34.Section 59 of the Sports Act states further that:The Tribunal may, in determining disputes apply alternative dispute resolution methods for sports disputes and provide expertise and assistance regarding alternative dispute resolution to the parties to a dispute.'
35.It is evident from the pleadings that the Petitioners’ contention emanates from the decision made by the Respondent, a national sports organization according to the definition provided under Section 3 of the Sports Act, an umbrella body responsible for basketball nationally by virtue of Section 50 of the Sports Act.
36.Conclusively, the Tribunal is clothed with the jurisdiction to determine and pronounce itself on the issues arising for determination.
37.The Kenya Basketball Federation Constitution contains provisions regarding the organization’s submission to jurisdiction of various bodies. Article 21 contains the clause on Submission to Jurisdiction which states:-1.Kenya National Sports Council (KNSC)i.'This Federation by resolution submits to the jurisdiction of the KNSC to the extent provided by the Constitution thereof on condition that the Federation is accepted by the KNSC as an affiliate organization thereof.ii.The Federation and every one of its members shall honor and be bound by all decisions of the Kenya National Sports Council or directions from the Head of that Council which are in accordance with its constitution.'2.National Olympic Committee of Kenya (NOCK)i.'This Federation by resolution submits to the jurisdiction of the NOCK Sports and Dispute Arbitration Committee and Anti-Doping Agency on condition that the Federation is accepted by the NOCK as its affiliate.ii.The Federation and every one of its members shall honor and abide by the NOCK Sports Dispute Resolution Mechanism and Anti-Doping Agency.'3.The World Anti-Doping Agency - WADAi.'The Federation recognizes the World Anti-Doping Agency and any of its regional and National affiliates.ii.The Federation will adopt and subscribe to the policies and rules set out by the World Anti-Doping Agency Code and National Anti-Doping agency.'4.The Court of Arbitration for Sport, Lausanne, Switzerland(1). 'The Federation recognizes the Court of Arbitration for Sport, Lausanne, Switzerland.(2). Any dispute arising from this Constitution which cannot be settled by the KNSC or by the NOCK Sports and dispute arbitration committee and anti-doping agency, or any appeal from decisions issued by the aforementioned bodies shall be definitively settled by a tribunal constituted in accordance with the Statutes and Procedural Rules of the Court of Arbitration for Sport, Lausanne, Switzerland. The parties concerned shall undertake to comply with the Statutes and Procedural Rules of this Court of Arbitration for Sport and to accept and enforce its decision in good faith.(3). Unless otherwise provided, members are urged to refrain from submitting disputes related to the specificity of the sport to the ordinary courts of law before exhausting the alternative dispute resolution mechanisms provided for in this Constitution.'35. Based on the cited provisions in the Kenya Basketball Federation Constitution, it is evident that the Federation has recognized the jurisdiction of various bodies, such as the KNSC, NOCK Sports and Dispute Arbitration Committee, World Anti-Doping Agency, and the Court of Arbitration for Sport. However, the Constitution does not explicitly mention the Sports Dispute Tribunal as one of the bodies to which it submits jurisdiction.
38.This panel takes note of the peculiar and perhaps inadvertent omission within the drafting and forethought of the Kenya Basketball Federation Constitution. It is intriguing that a body that is statutorily mandated, like the Sports Dispute Tribunal, to handle disputes and appeals in the realm of sports is not explicitly envisaged in the Constitution as a forum for resolution. Such an oversight appears to create an apparent disconnect between the statutory provisions and the governing documents of the Federation. As a result, it raises questions about the alignment between the Federation's internal governance framework and the external legal mechanisms for dispute resolution provided by the Sports Act. It cannot be right that national sports bodies have a right to cherry pick which sections of the Sports Act they adhere to and jurisdiction of the Sports Disputes Tribunal is one of those germane sections.
39.Indeed, the Second Schedule of the Sports Act in prescribing matters that have to be provided for in the Constitutions of Sports Organizations states under (f)(f)Subscription to Court of Arbitration for Sports policies and rules which conform with requirements set out in Sports Disputes Tribunal policy and rules for sports disputes resolution.Similarly, the Sports Registrar Regulations 2016 state under Regulations 3(b) that the sports organizations shall set out the dispute resolution mechanisms set in accordance with rules of their international bodies and the Sports Act.
40.Nevertheless, despite this discrepancy, the Tribunal finds that both parties in this case have conducted themselves in a manner consistent with acknowledging and accepting the Sports Dispute Tribunal's jurisdiction. Their active participation in the proceedings, without raising any objections to the Tribunal's authority, suggests a mutual understanding and implied submission to its competence.
41.Given the parties' conduct and the absence of any jurisdictional challenges, the Sports Dispute Tribunal further affirms its jurisdiction to hear and determine this appeal.
Whether the Petitioner has locus to institute this petition
42.Locus standi signifies a right to be heard. A person must have sufficiency of interest to sustain his standing to sue in Court of Law. This was the holding in the case of Law Society of Kenya Vs Commissioner of Lands & Others, Nakuru High Court Civil Case No 464 of 2000. Further in the case of Alfred Njau and Others -Vs- City Council of Nairobi  KAR 229, the Court also held that:-
43.Therefore, locus standi means the right to appear before and be heard in a court of law.
44.The Respondent avers that the Petitioner lacks locus standi to institute the suit. The thrust of their argument is that the petitioner has not demonstrated any direct or personal interest in the affairs of the Kenya Basketball Federation (KBF) that would entitle them to challenge the decisions or actions taken by the Federation. According to the respondent's argument, the petitioner has not shown any tangible connection to the sport of basketball in Kenya, such as being a player, coach, team manager, or any other stakeholder with a recognized role in the sport.
45.The Petitioner in his supporting affidavit dated June 22, 2023 describes himself as a male adult of sound mind and a participant in the local basketball league established and operated by the Respondent within Kenya.
46.As a Tribunal, we are mindful of the potential risk of opening the floodgates to endless litigation against the Kenya Basketball Federation (KBF) or indeed any Federation if we grant automatic legal standing to sports supporters, including the petitioner, without careful consideration. However, we must also recognize the constitutional principles of transparency, accountability, and public participation in the governance of public bodies, as enshrined in Article 10(2)(c) and Article 35 of the Kenyan Constitution on access to information.
48.Applying these principles to the present case, it is imperative to recognize that sports supporters, including fans and participants in local leagues, play a pivotal role in the sports ecosystem and are undoubtedly key stakeholders in the realm of sports. Participants, like the Petitioner, form an integral part of the sports community, representing the values and aspirations of the broader public. Their involvement showcases a genuine interest in the welfare of the sport and the community it impacts.
49.Sports organizations, including the KBF, are entrusted with upholding ethical standards, promoting fair play, and fostering inclusivity, all of which align with the broader public interest. Granting locus to sports supporters, like the petitioner, enables them to play a crucial role in safeguarding public interest and community welfare in sports governance.
50.Moreover, the KBF's status as a national sports umbrella organization registered under the Sports Act designates it as a public body. As such, it operates with public funds and serves a public function, making it subject to principles of transparency, accountability, and good governance.
51.By allowing the petitioner locus, we facilitate public scrutiny and accountability of the KBF's decisions and actions. This aligns with the constitutional principle of public participation and ensures that stakeholders, such as sports supporters, have a platform to raise legitimate concerns and advocate for the best interests of the sport and the broader community. It cannot be expected of those who truly share the passion of a sport that when the custodians of the Federations that run those sports need them to get behind the national teams selected by those Federations, they would be deemed to only be seen and not be heard when it is obvious that not everyone can be given the distinct honour to be an official of a sports organization at one particular moment.
53.This case holds that such rights are not mere legal requirements but fundamental constitutional guarantees that apply to all persons, including sports supporters like the petitioner in this case.
54.In light of these considerations, the Tribunal affirms the petitioner's locus as a sports supporter and acknowledges the significance of their role in promoting public interest and community welfare in sports governance. While ensuring that granting locus is done judiciously to prevent abuse, we recognize that the Kenyan Constitution provides a framework to strike a balance and uphold the democratic values enshrined therein.
iii. Whether the notice for the Annual General Meeting was issued procedurally?
55.In evaluating the legality of the notice for the Annual General Meeting (AGM) issued by the Respondent, we must refer to the relevant provisions of the Kenya Basketball Federation (KBF) Constitution, specifically Article 8 on The Annual General Meeting (AGM).
56.Article 8 of the Respondents Constitution provides for the Annual General Meeting as follows;Article 8: The Annual General Meeting (AGM)1.The Federation shall hold its Annual General Meeting not later than 14 days before the commencement of new season and in any case not later than 30th April of every calendar year.2.The agenda for every such Annual General Meeting shall bei.To read the notice convening the meetingii.To confirm minutes of the previous General Meeting or Governing Council meeting.iii.Matters arising thereuponiv.To receive and considera.The Chairman's Report-which shall include proposals from the Council that shall require the AGM's consideration;b.The Activities' Report- by the First Vice Chairman;c.The Treasurer's Report that shall include, but not limited to:i.The annual audited accountsii.The financial statements of the Federation.3.To elect members of the National Executive Committee when their term of office as set in this Constitution shall have elapsed4.To appoint the auditors of the Federation.5.Any other business with the permission of the Chairman or as shall have been sent to the Secretary fourteen (14) days before the meeting.**6.At least twenty one (21) clear days' notice of the meeting shall be given to all members and such notice shall specify the place, date and time of the meeting. The accidental omission and/or failure to notify a member, or the non-receipt by any member of the said notice shall not invalidate the proceedings of the meeting. All notices shall be by either registered post or e-mail, and shall be attached to a copy of the audited accounts of the Federation for the period ending 31 December the previous calendar year and a of copy of the statements of account for the period during the current year.7.Eligibility to attend an Annual General Meeting and a Special General Meeting shallbe exclusive to:a)One (1) bonafide representatives of the duly affiliated Conferences;b)One (1) bonafide representatives of each club duly affiliated/accredited;c)One (1) bonafide representatives of the Coaches' Commission;d)One (1) bonafide representatives of the Referees' Commission;e)One (1) bonafide representatives of the Women Commission:f) One (1) bonafide representatives of the Players Association;One (1) bonafide member of each of the standing committeesh)Members of the Executive Committee;Co-opted officials;
5.Names of the bonafide representatives shall be sent to the SG by the respective Secretaries of the affiliated membership at least fourteen (14) days before the meeting.
6.Co-opted officials and members of standing committees shall not have voting rights
57.The Tribunal acknowledges that the Replying Affidavit provided did not conclusively provide the nexus between the prominent sports individual whose demise had thrown the sports solidarity in mourning with the game of basketball. Indeed, one may state that by the very nature of postponing an important official function in the federation that runs basketball based on the rather sad news of another sports personality as asserted by paragraph 8 of the Affidavit, the Federation is approbating and reprobating having made the assertion under paragraph 6 that the Annual General Meeting of the basketball Federation was a members only affair and not linking the two that the sports personability was a member of the Federation.
58.However, despite the reason given of the death of the volleyball Federation President, we must still address the issue of AGM postponement. As per the constitutional provisions of the Kenya Basketball Federation (KBF), the AGM is required to be held not later than 30th April of every calendar year. While we understand that unforeseen circumstances, such as the passing of an important individual, can have an impact on scheduled events, it is essential for sports organizations to adhere to their governing documents and uphold good governance practices.
59.In this case, as a public body responsible for basketball activities in Kenya, the Respondent should have taken appropriate measures to ensure the AGM's timely convening and compliance with constitutional requirements.
60.Additionally, best practices in financial governance dictate that the end of a financial year should be followed by scrutiny of financial statements by members. This scrutiny allows for transparency, accountability, and early supply of statements to ensure good governance practices are upheld. While the new season had not yet commenced, adhering to the constitutional timeline for the AGM is crucial to demonstrate transparency and accountability to the basketball community and stakeholders.
61.In light of the available information and constitutional provisions, it appears that the Respondent's decision to postpone the Annual General Meeting on multiple times, beyond the specified date of April 30, 2023 raises concerns about adherence to the KBF Constitution and good governance practices. The sequential flow of the events and milestones after the close of a financial year and the lead up to the Annual General Meeting was disrupted.
62.The Tribunal is keen to uphold the rule of law and ensure that sports organizations, like the KBF, comply with their governing documents and statutory obligations. While we acknowledge the challenges posed by unforeseen events, it is essential for sports bodies to strike a balance between human transition and upholding constitutional requirements to maintain transparency, integrity, and accountability within the sports community.
63.In light of the Federation’s constitutional provisions, information on the timeline of events, and the principles of good governance, we find that the Respondent's actions in repeatedly postponing the AGM beyond the stipulated date may not have been in line with the best practices and constitutional requirements. The available information suggests that the Respondent had sufficient time to organize the AGM within the financial year and allow members to scrutinize the financial statements.
iv. Whether the delegates to whom the Notice of the Annual General Meeting was issued were properly constituted?
64.The Petitioner has raised concerns about the delegates' legitimacy, particularly regarding their registration certificates as per the Federation's Constitution.
65.Article 4(1),(i),(ii),(iii),(iv),(v) and (vii) of the KBF Constitution, outlines the categories of delegates that are recognized as legitimate members with voting rights in the Annual General Meeting (AGM). These categories include clubs, County branches, the Coaches Commission, The Referees Commission, the Women Commission, and The Players Commission.
66.The Petitioner alleges that certain delegates, such as the Coaches Commission, The Referees Commission, the Women Commission, and The Players Commission, do not have registration certificates as required by the the Constitution. Without proper registration certificates, these delegates may not qualify as bona fide members and may lack the legal standing to participate and vote in the AGM.
67.As a result, the legality of the delegates/members that constitute the Federation depends on whether they fulfill the registration requirements specified in the KBF Constitution.
68.As the Tribunal, we acknowledge the respondent's assertion that 62 bona fide member delegates attended the Annual General Meeting (AGM).
69.However, we note that neither party has provided documentation or evidence to substantiate their respective claims regarding the actual number of delegates present at the AGM.
70.The burden of proving the attendees of the AGM and the Quorate nature of the meeting and their validity to have been in the meeting shifted to the Federation once the assertion had been made by the Petitioner. Given the lack of conclusive evidence from either party, the Tribunal is unable to definitively determine the actual number of bona fide member delegates who attended the AGM. Therefore, we cannot fully validate or invalidate the respondent's assertion of 62 delegates being present.
71.However, noting that the issue of the Financial Statements was also raised and the Respondent has stated that those delegates who attended were furnished with Financial Statements, and noting the assertion by the Respondent under paragraph 15 that was no requirement under the Sports Act for the audited accounts to be furnished to the Registrar, the Tribunal has been drawn to Regulation 4 (i) of the Sports Registrar Regulations, 2016 that requires this of sports organizations at Registration:audited accounts with reports on all its activities and the use and disbursement of all its funds for its preceding financial year together with such other reports as the Registrar may require from time to timeAdditionally, Regulation 24(b) that a registered sports organization shall on an annual basis provide the Registrar of Sports with audited financial statements.
72.Even if there had been no obligation to furnish the Petitioner as or right with the Audited Financial Statements for not being amongst the delegates, this obligation to the Registrar exists and it is expected that any member of the public, with the current wide elasticity on public interest and access to information, may then access this information from the Registrar without any bottlenecks and play their part in the scrutiny of usage of public funds and related governance checks and controls.