APS Bomet Football Club & 3 others v Football Kenya Federation & 22 others; Dimba Patriots Football Club & 5 others (Interested Parties) (Tribunal Case E036, E038 & E039 of 2022 (Consolidated)) [2022] KESDT 838 (KLR) (Civ) (6 December 2022) (Decision)

Citation
APS Bomet Football Club & 3 others v Football Kenya Federation & 22 others; Dimba Patriots Football Club & 5 others (Interested Parties) [2022] KESDT 838 (KLR)
Media Neutral Citation
[2022] KESDT 838 (KLR)
Court
Sports Disputes Tribunal
Outcome
Allowed
Case number
Tribunal Case E036 of 2022
Attorneys
Mr. Arthur Kung'u (arthurñaknadvocates.co.ke) instructed by A K Ndumu Advocates, Mr. Kibue, Mr. Munyendo, Mr. Njagi Wahome, Mr. Njoroge Mwaura instructed by Busaidy Mwaura Ngarua & Company Advocates, Mr. Robert Macharia instructed by Macharia Gakaria & Associates holding brief for Mr. Gakaria,
Judges
John M Ohaga, J Njeri Onyango, MN Kimani
Judgment date
6 December 2022
Language
English
Type
Judgment
Original source file
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A. Introduction
I. The Parties
1.The parties in SDTSC No. E036 of 2022 were as follows:i.The 1st Petitioner is a professional Men’s football Club based in Bomet County and playing the sport of football in the name and style of APS Bomet FC. It is a member of the FKF having its team participating at the material time in FKF’s National Super League (hereinafter known as NSL).ii.The 2nd Petitioner is a football Club based in Kakamega County. It is a member of the FKF having its team participating at the material time in the National Division One League.iii.The 1st Respondent is an organization of an associative nature registered in Kenya in compliance with the Sports Act No. 25 of 2013 as a National Sports Organization.iv.The 2nd Respondent is a Committee established under Article 37 of the FKF Constitution.v.The 3rd Respondent is a Committee established under Article 48 of the FKF Constitution.vi.The 4th to 15th Respondents are members of the FKF National Executive Committee, the 2nd Respondent herein.vii.The 1st Interested Party is a football Club based in Nairobi County. It is a member of the FKF having its team participating at the material time in the National Division Two League.viii.The 2nd Interested Party is a football Club based in Busia County. It is a member of the FKF having its team participating at the material time in the National Division Two League.ix.The 3rd Interested Party is a football Club based in Nairobi Club. It is a member of the FKF having its team participating at the material time in the National Division One League.x.The 4th Interested Party is a Cabinet Secretary nominated by the President of Kenya to run the affairs in the Ministry of Sports, Culture and Heritage.xi.The 1st to 5th Interested Parties are football clubs registered and taking part in FKF’s second tier league known as the National Super League at the material time.
2.The parties in SDTSC No. E038 OF 2022 were as follows:i.The Petitioner is the interim treasurer of Baringo County Football Association.ii.The 1st to 13th Respondents are the same parties as the 1st Respondent and the 4th to 15th Respondent in SDTSC No. E036 of 2022.iii.The 1st to 27th Interested Parties are County Football Associations mandated to conduct football at the county level
3.The Parties in SDTSC No. E039 of2022 were as follows:i.The Petitioner is a limited liability Company incorporated within the Republic of Kenya. It owns and manages a professional football club based in Murang’a County and playing the sport of football in the name and style of Murang’a Seal FC. It is a member of the FKF having its senior team participating at the material time in FKF’s second tier league known as the Football Kenya Federation National Super League (hereinafter referred to as the NSL).ii.The 1st, 3rd to 13th and 15th Respondents are the same parties as in SDTSC No. E036 and E038 of 2022.iii.The 2nd Respondent is the President of the Football Kenya Federation.iv.The 14th Respondent is a member of the FKF National Executive Committee.v.The Interested Parties/Cross Petitioners are football clubs playing in the Kenya Premier League at the material time based in Kakamega, Nairobi and Kisii County respectively.
II. Facts
4.The Cabinet Secretary for Sports, Culture and Heritage at the material time made a decision on 11th November 2021, exercising her powers under Section 54 (1) of the Sports Act to appoint any person or committee to assume the management, control and conduct of the affairs of a sports organization.
5.To this extent, the Cabinet Secretary appointed the Football Kenya Federation Caretaker Committee to assume the powers and functions of the National Executive Council, a body of the Football Kenya Federation created under Article 37 of the FKF Constitution. The tenure of the Committee as indicated in the Sports Act was to be six (6) months.
6.The FKF Caretaker Committee would carry out its mandate in accordance with Gazette Notice No. 12374. Its functions were to:i.Conduct of the affairs of the Football Kenya Federation in accordance with the Constitution of the FKF;ii.Ensure the FKF operates within the provisions of the Sports Act;iii.Co-ordinate and ensure the smooth running of FKF operations including team preparations for all local and international sporting events;iv.Co-ordinate elections of officials of the FKF according to the Sports Act and the Sports Registrar Regulation of 2016; andv.Hand over the management of FKF to the newly elected officials after the election.
7.At the tail end of the 6-month period, the FKF Caretaker Committee, on 10th May 2022 submitted to the Cabinet Secretary a report detailing the progress on their issued directives. Among these recommendations, the Committee was of the view that the FKF Constitution should be amended to comply with the Constitution of Kenya and the Sports Act. Subsequently, elections to the FKF National Executive Committee would be carried out according to the new FKF Constitution.
8.It is with this recommendation in mind that the Cabinet Secretary of Sports, Culture and Heritage, on 13th May 2022 appointed under Gazette Notice No. 5518 the FKF Transition Committee with the outlined mandate to, inter alia co-ordinate and facilitate the validation of the draft Constitution of Football Kenya Federation.
9.The FKF Transition Committee would, nevertheless, be constituted by the same members as those of the FKF Caretaker Committee.
10.The FKF Caretaker Committee’s tenure, as provided by the Gazette Notice would be for 5 weeks, during which the new constitution of the FKF would be validated and adopted. Moreso, the committee would manage the affairs of the FKF and ensure smooth running of football activities in accordance with the FKF Constitution.
11.It is after the gazettement of the Transition Committee that the head of its Secretariat, Lindah Oguttu, sent out a letter on 13th May 2022 informing club officials that the league matches would continue as scheduled in accordance with the fixtures issued by the Caretaker Committee.
12.Further, the Cabinet Secretary for Sports, Culture and Heritage through Gazette Notice No. 7005 of 16th June 2022 appointed the FKF Transition Committee for a period of 2 months upon expiry.
13.On 3rd November 2022, the FKF National Executive Committee in a bid to come back to office, regained control of the Federation following the lifting of the ban on Kenyan football by FIFA. They then held a meeting wherein they resolved to annul all competitions held by the FKF committees appointed by the CS Sports Gender and Welfare.
14.These events necessitated the Claims by the Petitioners in SDTSC E036, E038 and E039 of 2022 herein.
B. Pleadings and Preliminaries
15.The suit in E036 was instituted by way of a Notice of Motion dated 14th of November 20221. The Notice of Motion was filed under a Certificate of Urgency seeking inter alia orders that the Resolutions made by the FKF National Executive Committee (FKF NEC) on 9th November 2022 be declared null and void.1Counsel for the Applicant explained that the failure to file accompanying Petition was occasioned by the speed with which the proceedings were commenced and the failure to file the Petition through the e-filing portal was inadvertent.
16.The suits in E038 and E039 were instituted by way of Petitions dated 15th November 2022. The Petitions were filed simultaneously with Notices of Motion under Certificates of Urgency both dated 15th November 2022 seeking the declaration of the decision of FKF National Executive Committee to nullify the Kenya Premier League, National Super League, Women Premier League, Men’s Division One and Women’s Division One Leagues 2021/2022 as null and void.
17.The Tribunal issued interim orders on 15th November 2022 staying the decision by FKF National Executive Committee on promotions and relegations pending the full hearing and determination of the Petition.
18.To this extent the Petitions in E036, E038 and E039 of 2022 jointly raise the following issues:a.Thatan order be and is hereby issued declaring the Resolutions made by Football Kenya Federation National Executive Committee on 9th November 2022 as null and void;b.Thatan order be and is hereby issued to stay the decision by the Football Kenya Federation National Executive Committee on promotions and relegations, pending the full hearing and determination of the petition;c.Thatan order be and is hereby issued to validate the Kenya Premier League, National Super League, Women Premier League, Men’s Division One and Women’s Division One Leagues 2021/2022 fixture, standings and promotions or relegations as lawful;d.Thatan order be and is hereby issued to set aside the Resolutions of the 2nd to 15th Respondents declaring that there will be no promotions or relegations in the football leagues for the 2022/2023 season;e.Thatan order be and is hereby issued to set aside the decision of the 3rd Respondent in E036 not to include the Petitioners and Interested Parties in the recently released football league fixtures for the 2022/2023 season.
19.The Respondents in E036, E038 and E039 of 2022 filed a common Replying Affidavit sworn by Michael Ouma Majua dated 29th November 2022.
20.The 1st Interested Party in E036 filed a Replying Affidavit sworn on its behalf by Dick Arudo dated 18th November 2022
21.The 2nd Interested Party in E036 filed a Replying Affidavit sworn on its behalf by Joseph Onyango dated 21st November 2022.
C. Substantive Claims
I. The Petitioners’ case
22.The Petitioners in E036 contended that the decision of the current Cabinet Secretary for Sports to purportedly repeal the previous Gazette Notice dated 11th November 2021 to disband the FKF is null and void and was of no legal consequence.
23.They contended that Gazette Notice that was issued by Cabinet Secretary on 11th November 2021 effectively disbanded the FKF NEC and the officials holding those positions at that time. It was not a suspension of those officials as contended by Respondents but a removal from office under powers granted to the Cabinet Secretary under Section 54(1)(b) of the Sports Act through a Gazette Notice. It was confirmed by the High Court in Petition E473 of 2021 at paragraph 110 where the Court confirmed that the FKF NEC was rightfully disbanded by the Cabinet Secretary.
24.Additionally, they relied on SDTSC Petition 006 of 2021 Milton Nyakundi v FKF and others wherein the Tribunal reaffirmed the position of the High Court and reiterated that the FKF NEC officials were legally removed from office. The Tribunal directed that these officials were effectively barred from making correspondence, decisions and announcements concerning the football affairs in the territory of Kenya having been duly removed from office.
25.They contended that the declaration by the Cabinet Secretary through a press release does not have any legal authority to revoke that Gazette Notice and that it is trite law that a valid Gazette Notice can only be revoked by a court of law, tribunal or publishing of a subsequent Gazette Notice which did not occur, rather it was done through a verbal declaration by the Cabinet Secretary. Therefore, the declaration could not operate to repeal or overturn the decision of the Hight Court and the Tribunal in the aforementioned cases without further legal steps taken.
26.They argued that the only way the FKF NEC officials could be reinstated validly was through a court order or by being re-elected as FKF NEC officials through the FKF General Assembly in accordance with the FKF Constitution which they claimed had not occurred. They submitted that such a verbal declaration did not meet the Constitutional master to authorise and sanction such a public administrative function of such magnitude significance and legal consequence.
27.They argued that Section 54 of the Sports Act which the former Cabinet Secretary relied on to exercise her power to disband the FKF NEC, only empowers the Cabinet Secretary to intervene in the affairs of FKF after an inspection has been carried out pursuant to Section 52 of the Sports Act and it does not donate powers to the Cabinet Secretary to appoint or reinstate any officials removed from office in accordance with s 54(1)(b), therefore the current Cabinet Secretary’s decision had no basis in law.
28.The Petitioners in E036 argued that they were entitled to audience before the Tribunal. The argued that the structure of the Appeals Committee established under Article 21 of the FKF Constitution was neither defined in the Constitution nor in the Rules and Regulations of FKF. They contended that since the Appeals Committee comprises of similar officials to the FKF NEC, they had no legal standing to comprise an Appeals Committee having been disbanded, and therefore the Petitioners had every right to seek redress before the Tribunal.
29.Finally, the Petitioners in E036 argued that the decision to nullify the 2021/2022 league was unlawful and their legitimate expectations were infringed upon. Firstly, when the FKF was disbanded by the Cabinet Secretary, the General Secretary issued communication to the football clubs on 11th November 2021 directing them to proceed with the leagues and activities notwithstanding that decision by the Cabinet Secretary which created the legitimate expectation. Secondly, Clause 2.7 of the Rules and Regulations on Promotion and Relegation requires that promotion and relegation should be automatic additional requirements other than performance. Rule 2.7.5 further requires that the promotion retention and relegation shall be based on sporting merit which the Petitioners rightfully earned, hence there was a legitimate expectation that that promotion would be honoured.
30.They also argued that the communication by the FKF NEC 9th November 2022 to disband the results of the previous season breached their right to fair administrative action under Article 47 of the Constitution of Kenya and Section 4 of the Fair Administrative Action Act. In the decision of Petition E473 of 2021 at paragraph 103, the High Court cited the decision in R v Chief Justice and 6 others, ex parte Moijo Mataiya Ole Keiwua [2010] eKLR and required that parties likely to be affected by a decision that infringes administrative action must be afforded an opportunity to be heard. They contended that the Respondents had not discharged the burden set in the above case to show that only in certain circumstance can there be a departure to the requirement for fair administrative action.
31.Further in conformity with the Statutes of the FKF and the Rules and Regulations, at paragraph 80 of Petition E473 of 2021, the court was emphatic that FKF is firstly subject to the Constitution and Laws of Kenya. They claimed that in the press statement issued on 9th November 2022, the General Secretary made no reference to Constitution of Kenya, the Sports Act and the impugned report by leagues and competition committee which warranted the cancellation of the leagues.
32.They argued that Article 39 of the FKF Constitution does not give the FKF NEC any powers to nullify the league as purported in the communication given by the Respondents and therefore, they acted in ultra vires.
33.The Petitioners in E039 referred to Article 64 of the FKF Constitution which outlines the appointment of the members of the FKF Appeals Committee and contended that the members are put in office by the FKF NEC, and therefore they could not sit on an Appeals Committee by virtue of Article 15 (d) and (i) of the FIFA Statutes which provide that member associations must ensure that judicial bodies are independent, there is separation of powers and the bodies must avoid conflict of interest.
34.The Petitioners referred to Rule 10.3.4 of the FKF Rules and Regulations which establishes the procedure for lodging an appeal. They argued that the role of the Appeals Committee was to hear appeals in respect to written disciplinary decisions.
35.They argued that an appeal must flow from a complaint lodged under Regulation 10.1 or a protest under Regulation 2.2 and therefore the decision in question made by the FKF NEC was not a decision that could be heard by the Appeals Committee. They contended that the makers of those Regulations did not envision a situation whereby a decision by the FKF NEC could be heard by the Appeals Committee of the same composition.
36.Additionally, they referred to Section 21 of the Statutory Instruments Act, stating that the Gazette Notice of 11th November 2021 is a statutory instrument which could expire after a prescribed amount of time or if the time is not prescribed, not more than 10 years, or after a repeal. They argued that a statutory instrument can only be repealed by another statutory instrument.
37.They also referred the Tribunal to Article 10 of the FIFA Regulations Governing the Application of the Statutes which provides the principles of promotion and relegation. They argued that Article 10(1) does not give discretion to member associations to decide who will be promoted and who will be relegated but shall depend on sporting merit.
II. The Respondents’ case
38.The Respondents in E036 filed a Replying Affidavit on behalf of the Federation and its members sworn by Barry Otieno on 29th November 2022 and written submissions on 30th November 2022 which they would rely on.
39.The Respondents contended that the FKF is a private members’ organisation of which membership is acquired under Article 11 of the FKF Constitution. They argued that whichever party had not applied to be a member must be defined as a non-member.
40.They argued that it is the duty of the General Secretary to make determinations, decisions or communicate the affairs of the Federation to members, and that the communication on 9th November 2022 was to the members.
41.They stated that members have rights to challenge or ask for further particulars of a decision made by the FKF NEC but contended that Article 67 of the FKF Constitution and Rule 10.3.5 of the FKF Rules and Regulations state that any decision of the FKF NEC is appealable to the FKF Appeals Committee.
42.They argued that the Petitioners should have approached the Tribunal to assert that the Appeals Committee is non-existent or has no capacity or bears no semblance of a forum where any determination can be made that can master any provision of the law under the Article 47 and 50 of the Constitution.
43.They cited the Court of Appeal case in Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR where the Court held that where internal dispute resolution mechanisms exist outside the courts, the same be exhausted before the jurisdiction of the courts is invoked.
44.They went on to argue that the CFAs had launched a public interest litigation because they had asserted that FKF should operate for the public good, and that the Tribunal should not hear every public interest litigation matter. They cited the Indian Supreme Courts’ finding in Ashok Kumar Pandey vs. State of West Bengal in which the Chief Justice commented that a public interest litigation must not become a political or private interest litigation.
45.Subsequently, they argued that Article 10.3.4.1 refers to a disciplinary hearing decision which was not the decision before the Tribunal and therefore Article 10.3.4.1 therefore was not available for the Petitioners’ contention. Further, that Article 67 of the FKF Constitution places the Appeals Committee to be the body to which all appeals of the FKF committees’ decisions are heard.
46.They further stated that under Article 64, the Appeals Committee is appointed by the General Assembly by way of a vote hence the FKF members must have been present and voted for the current Appeals Committee in the Annual General Meeting, and that the members have the capacity to raise the issue of review or removal of those appointments in a Special General Meeting.
47.They stated that under Rule 10.3.5, members have right to appeal against any decision by the FKF or its national committees, and hence the Tribunal cannot create a forum for non-members to challenge the decision.
48.They argued that the Petitioners should have exhausted internal dispute resolution mechanisms under Section 9(2) and (3) of the Fair Administrative Actions Act.
49.They further argued that the Respondents had not challenged the powers of the Cabinet Secretary under Section 54 of the Sports Act but asserted she had a time limit and there was no provision to allow her to extend that time, therefore having exhausted her powers to appoint a committee for 6 months, she had no powers to appoint or intervene in the management of the FKF hence the three Gazette Notices appointing the committees are null and void.
50.They argued that the three subsequent committees acted without any cause of law and the Tribunal should not validate the actions of an entity that is in office unlawfully. Further, that the Cabinet Secretary did not disband FKF as an entity, only the FKF NEC, hence there was no need to have the Transition Committee and FKF was sufficient to run its affairs.
51.The Respondents in E039 filed a Replying Affidavit sworn by Michael Ouma Majua dated 29th November 2022, stating that the Resolutions dated 9th November 2022 were necessary to prevent infringement of the Statutes, Regulations and Standing Order of FIFA, CAF, FKF and the laws of the game, and that the aggrieved Petitioners should have exhausted the prescribed internal mechanisms for redress in the FKF framework.
52.They stated that the Appeals Committee is part of the standing FKF committees and other judicial committees whose appointment is done by FKF NEC and ratified by the General Assembly. They cited SDTSC 21 Migori Youth Football Club v FKF Transition Committee, Gogo v Dimba Sports and SDTSC 17 Sofapaka v FKF Caretaker Committee where the Tribunal noted that the standing committees as constituted were still proper within the FKF Constitution.
53.With regards to Section 54(2) of the Sports Act, they contended that the test that must be employed to determine whether a provision is mandatory or directory, is to consider whether the non-compliance of a particular provision causes inconvenience or an injustice and if it does, the Tribunal will say that the provision has been complied with if it is obligatory in character.
54.With regard to legitimate expectations, they argued that it is not enough that the legitimate expectation should exist, in addition, it must be legitimate.
55.Rule 2.5.1 states that the winner of the league of the country is determined by the FKF from the final table standings and FIFA and CAF recognise one member association per country. They referred to Article 41(1) of FIFA statutes which states that each member has an obligation to ensure that their own affairs are managed independently and not influenced by third parties.
56.They referred to Article 16(3) of the FKF Constitution and argued that CAF came up with a framework to cushion its members from suspension if in any event anything occurred that would have allowed them to interact with Kenya.
57.They stated that what the Petitioners were asking for is an anticipation and not a legitimate expectation but rather a desire or hope. They further stated that third party interference was illegitimate and therefore they could not have a legitimate expectation of something that is illegitimate.
58.They claimed that the reasons why the FKF NEC did not summon the Petitioners was because there was an emergency and impracticability exception and an issue of confidentiality vis a vie the Integrity Department report which would prejudice the investigations by FIFA on match fixing that was rampant in the FKFCC and FKFTC.
59.Finally, they referred to Rule 8.1.5 which provides that no individual, or group of individuals or legal persons will have control in more than one club. They therefore contended that the lead Petitioners are run by the Kenya National Police Service and therefore they should not be entitled to the reliefs sought in the suit.
III. The Interested Parties’ case
60.The 1st and 2nd Interested Parties in E036 contended that the Respondents were in contempt of the Tribunal by making the declarations, therefore they could not seek to appeal a decision that ought not to have been made in the first instance.
61.They also argued that Section 54(2) of the Sports Act does not limit the Cabinet Secretary from only appointing one committee but only limits the time for which it can exist and as such none of the three committees exceeded their time limits and therefore their appointments were regular, lawful and in consonance with the Sports Act.
62.They referred to a letter written by the 4th Respondent, Barry Otieno dated 11th November 2021 to all members of the FKF, directing them to continue with normal football activities. They argued that this created a legitimate expectation for all member and clubs because it was a direction to continue all normal football activities and therefore it went against their legitimate expectation to cancel the league.
63.Additionally, they claimed that no club or FKF member was consulted when the resolution was reached and therefore, they went against Article 47 and 50 of the Constitution by not granting the members and clubs a fair hearing yet the decision impacted a number of the members.
64.Further, they argued that it is only Rule 2.6 of the FKF Rules and Regulations 2019 that anticipates that a league can be declared null and void, where due to circumstances of force majeure the league has failed to be completed. They argued that the conditions as stipulated in Rule 2.6 did not occur in the 2020/2021 season to grant the FKF NEC the authority to cancel the league.
65.The 5th Interested Party in E036 argued that the FKF Appeals Committee as defined in the FKF Rules and Regulations 2019 can only hear disciplinary matters or as otherwise provided by the Statute and that therefore this matter does not fall under the jurisdiction of the Appeals Committee.
66.They further argued that Section 54 of the Sports Act does not limit the number of committees that might be set up by the Cabinet Secretary, that if in the opinion of the Cabinet Secretary the matters had not been dealt with, it does not stop her from appointing another one as long as they do not exceed 6 months.
67.The Interested Parties in E038 contended that football is not a private affair as contended by the Respondents in High Court Petition E473 of 2021 where they sought a petition seeking to annul the FKF Caretaker Committee. They referred to paragraph 79 of the decision where the Court cited Robert Macharia v Sports Dispute Tribunal; Football Kenya Federation & 60 others (Interested Parties) where it determined that FKF cannot operate only its own constitution or rules and regulations, but they must be guided by the Constitution of Kenya and the Sports Act.
68.Further, they argued that the FKF does not represent individuals but Kenya and that in doing so, they must have the interests of all stakeholders in football matters.
69.They claimed that they were not granted affiliation to the national body because FKF was not in compliance with the Sports Act and Sports Regulations which was why the Caretaker Committee was formed. They claimed that if the FKF was in compliance then the County Football Associations would be affiliated to the FKF.
70.They referred again to Petition E473 of 2021 where the FKF had collected the registration documents for the County Football Associations to be registered as sport associations, but the FKF did not comply. The Court held that the Interested Parties who were County Football Associations had locus because they were stakeholders in football matters in Kenya.
71.The Interested Parties/Cross Petitioners in E039 contended that the FKF NEC decision was premised upon the FIFA Statutes and directives, the FKF Constitution and the Rules of Kenyan Football. They stated that the Petitioners and other Interested Parties had not controverted that the FKF took reports from their internal committees or ask for further particulars of their decision and whether the FKF NEC declined to give it to them.
72.They referred to Rule 10.3.1 of the FKF Rules and Regulations which state that save where the right of appeal is restricted in terms of any FKF Statute and/or these Rules, any party directly affected by any decision made or penalties imposed by any employee or official of FKF and/or any FKF Committee shall have the right to appeal to the FKF Appeals Committee, which they claimed the Petitioners had not pursued.
73.They urged the Tribunal to find that a breach, however blatant of the Fair Administrative Actions Act does not clothe the Tribunal with jurisdiction in view of the dictates under Section 9 of the same Act.
74.With regard to the locus standi of the CFAs, they asserted that the CFAs are an independent body with their own rules
75.With regard to the subsequent Gazette notices, they stated that the committees were the same committees with the same mandate so they could not be new committees, and that it is a continuation of what was there which is an infringement of the Sports Act.
76.They referred to Section 51 of the Interpretations and General Provisions Act which stipulates that if a person has the power to appoint any board commission or committee, they shall also have the power to remove or suspend or re-appoint or reinstate such a body.
77.They further contended that if Section 54 of the Sports Act is not complied with, it causes injustice, the injustice in this case the FKFTC running the national leagues in contravention of its mandates after the 6 months lead to the Interested Parties/Cross Petitioners being relegated.
78.They claimed that the FKF NEC relied on a report by the Integrity Department and NEC did not have to be convinced beyond reasonable doubt, they were comfortably satisfied that the league was a nullity in view of that report.
D. Issues for Determination
79.Pursuant to the directions of the Tribunal issued on 22nd November 2022, the Petitions in SDTSC No. E036, E038 and E039 of 2022 were consolidated as they all raised similar issues and sought similar orders with regards to staying the decision made by the FKF NEC.
80.Having considered all the facts and the pleadings herein, the Tribunal framed the following issues for determination:i.Whether the Petitioners in SDTSC No. E036 & E039 of 2022 are entitled to audience before the Tribunal in view of the express provisions of Article 67(2) of the FKF Constitution, 2017 as read together with Rule 10.3.5 of the FKF Rules and Regulations Governing Kenyan Football (2019);ii.Whether the appointment of the three (3) FKF Transition Committees by the Cabinet Secretary for Sports, Culture and Heritage (as she then was) through Gazette Notices No. 5518 dated May 13, 2022, No. 7005 dated June 16, 2022 and No. 9772 dated August 15, 2022 respectively, was regular, lawful and in consonance with Section 54(2) of the Sports Act, 2013;iii.What is the legal effect and/or consequences, if any, of the repeal of the of the former Cabinet Secretary’s decision of November 11, 2021 appointing the caretaker committee in lieu of the elected NEC by the current Cabinet Secretary for Youth Affairs, Sports & the Arts?iv.Whether the decision nullifying the 2021/2022 league was lawful having regard to the following considerations:a.the Petitioners’ legitimate expectation;b.the Petitioners’ right to fair administrative action and fair hearing in terms of Articles 47 and 50 of the Constitution;v.Whether County Football Associations have locus to enable them to seek relief of any nature before the Tribunal against the decision of the FKF National Executive Committee (‘the NEC’) dated 9th November, 2022 (‘the decision’);
E. Analysis
I. Whether the Petitioners in SDTSC No. E036 & E039 of 2022 are entitled to audience before the Tribunal in view of the express provisions of Article 67(2) of the FKF Constitution, 2017 as read together with Rule 10.3.5 of the FKF Rules and Regulations Governing Kenyan Football (2019);
81.Section 58 of the Sports Act provides: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; and(c)appeals from decisions of the Registrar under this Act.”
82.Article 37(a) of the FKF Constitution provides for the Composition of the National Executive Committee as follows:The National Executive Committee consists of the following members:i.The President;ii.The Vice Presidentiii.One representative of the FKF Premier League;iv.One representative of the FKF National Super League;v.One female membervi.Nine regional representatives;vii.Two (2) co-opted members.
83.Article 38 provides for Meetings as follows:1.The National Executive Committee shall meet at least once every three months in a year.2.The President shall convene the National Executive Committee meetings. If 50% of the Executive Committee members request a meeting, the President shall convene it within 21 days failing which the members requesting shall convene the meeting3.The President shall compile the agenda. Each member of the National Executive Committee is entitled to propose items for inclusion in the agenda. The members of the National Executive Committee must submit the items they wish to be included in the agenda for the meeting to the general secretariat at least seven days before the meeting. The agenda must be sent out to the members of the Executive Committee at least seven days before the meeting.4.The General Secretary shall take part in the meetings of the National Executive Committee without voting rights but in a consultative role and shall be responsible for taking and circulating the minutes thereof. If the General Secretary is unable to attend a meeting s/he may nominate a representative to attend the meeting on his/her behalf, subject to approval of the National Executive Committee.5.The meetings of the National Executive Committee shall not be held in public. The National Executive Committee may, however, invite third parties to attend. Those third parties shall not have voting rights, and may only express an opinion with the permission of the Executive Committee.
84.Article 67 of the FKF Constitution provides for the Appeals Committee. Clause 2 and 3 of the Article provide that:“2.The Appeals Committee is responsible for hearing appeals against all decisions determined by all committees.3.Decisions pronounced by the Appeals Committee may be appealed to the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland, or to a national, independent Arbitration Tribunal recognised by FKF, as specified in this Constitution.”
85.Rule 10.3.1 of the Rules and Regulations Governing Kenyan Football (2019) also provide that:“Save where the right of appeal is restricted in terms of any FKF Statute and/or these Rules, any party directly affected by any decision made or penalties imposed by any employee or official of FKF and/or any FKF Committee shall have the right to appeal to the FKF Appeals Committee.”
86.Additionally, Regulation 10.3.5 of the 2019 Rules provides that Appeals shall lie from the decisions of the FKF and any of its Committees to the Appeals Committee.
87.This Tribunal held in SDTSC E001 of 2022 Fortune Ladies FC vs Ali Amor &Anor that the appointment of the FKF Caretaker Committee and, effectively, all subsequent Committees, did not negate the mandate of the already existing FKF Bodies, specifically the Standing Committees and Judicial Bodies.
88.The wording of the FKF Constitution is such that the Appeals Committee is constituted for the purpose of determining Appeals from decisions of ‘every committee’. We are, however, not persuaded, having regard to nature of matters that the NEC is required to consider and the manner in which it is required to consider them, that the National Executive Committee (NEC) is a Committee whose decision is amenable to challenge before the Appeals Committee.
89.The NEC makes policy decisions on administration of Kenyan football. Third parties such as the Secretariat are not involved in the making of decisions as they lack voting rights and can only suggest opinions with the permission of the National Executive Committee. The rest of the Committees assist the NEC in executing its mandate as standing committees or judicial bodies. Additionally, the NEC’s manner of appointment is vastly different from the rest of the Committees. The NEC officials are appointed through elections conducted in the General Assembly as per the provisions of Article 37(d) of the FKF Constitution. In contrast, the appointment of the rest of the Committees is done by the governing National Executive Committee.
90.We are therefore not convinced the National Executive Committee falls within the definition of Committee as provided for in Article 67 of the FKF Constitution as well as Rule 10.3 of the Rules Governing Kenyan Football (2019).
91.Now that we have reached this conclusion, it becomes clear that the assertion by the Respondents that the Petitioners should have exhausted the internal dispute resolution mechanism cannot be sustained, as there was no decision capable of being appealed to the Appeals Committee.
92.Once this is understood, the objections premised in the provisions of Section 9 of the Fair Administrative Actions Act fall away and allow the Petitioners direct audience before the Tribunal.
93.In light of the foregoing, a party aggrieved by a decision of the NEC has a direct recourse to appeal to the Sports Dispute Tribunal for the determination of the dispute.
94.Accordingly, we find in favour of the Petitioners in this issue by holding that indeed they had the right of audience before the Sports Dispute Tribunal in appealing the decision of the National Executive Committee made on 9th November 2021.
II. Whether the appointment of the three (3) FKF Transition Committees by the Cabinet Secretary for Sports, Culture and Heritage (as she then was) through Gazette Notices No. 5518 dated May 13, 2022, No. 7005 dated June 16, 2022 and No. 9772 dated August 15, 2022 respectively, was regular, lawful and in consonance with Section 54(2) of the Sports Act, 2013;
95.Section 54 of the Sports Act, 2013 provides for the intervention by Cabinet Secretary in management of Sports Organizations after an inspection has been conducted and the Organization has refused to comply with the recommendations of an inspection. Section 54(1) of the Sports Act provides for situations where the Cabinet Secretary can appoint any person or committee to assume the management, control and conduct of the affairs of a sports organization. Section 54(2) of the Sports Act further imposes a limit on this power and subsequently provides that:“The appointment of a person or committee under this section shall be for such period as the Cabinet Secretary shall specify in the instrument of appointment, but shall not exceed six months.”
96.The decision of the Cabinet Secretary for Sports, Culture and Heritage (as she then was) to appoint a Committee in place of FKF NEC was first made on 11th November 2021 and published in a Gazette Notice on 12th November 2021. It followed the set procedure stipulated in the Act that is the Inspection, non-compliance with the Recommendations from Inspection then the Actual appointment of a person or committee in charge of the Organization.
97.The High Court made the finding that the power was legally exercised in a Judgment delivered on 10th May 2022 in Football Kenya Federation (Fkf & 2 others v Heritage & 5 others; Club & 7 others (Interested Party) (Petition E473 of 2021) [2022] KEHC 3387 (KLR) (Constitutional and Human Rights) (10 May 2022) (Judgment) where the learned Judge, having examined all the evidence presented before her, stated as follows:“110.It must also be noted that the caretaker committee appointed to run the affairs of FKF was gazetted on 12th November, 2021. Its term of six (6) months ran from 11th November, 2021. This court not being privy to the Recommendations and the outcome of any investigations carried out cannot reinstate the National Executive Committee of FKF which was disbanded by the 1st Respondent vide the Gazette Notice that appointed the Caretaker Committee. The reason is that the 1st Respondent acted within her powers owing to the dire situation at FKF.111.After all the above deliberations I find that save for the issue of the petitioners not being served with the report/recommendations for their reaction and which has been well explained, I find that the respondents acted within their mandate under the Sports Act to save FKF.”
98.The import of the above is that the National Executive Committee was disbanded and the FKF Caretaker Committee assumed the management and Control of FKF for a period of 6 months.
99.The Merriam- Webster Dictionary defines ‘disband’ as:“to break up the organization of: DISSOLVE”
100.The Collins Dictionary further defines ‘disband’ as:“If someone disbands a group of people, or if the group disbands, it stops operating as a single unit.Synonyms: dismiss, separate, break up, scatter More Synonyms of disband“
101.The Gazette Notice No. 12374 dated 11th November 2021 but published on 12th November 2021 stated that:“In Exerciseof the powers conferred by section 54 (1) of the Sports Act, 2013, the Cabinet Secretary for Sports, Culture and Heritage disbands the National Executive Committee of Football Kenya Federation and appoints a Caretaker Committee comprising the following persons....”
102.The appointment of the FKF Caretaker Committee, primarily in 2021 through Gazette Notice No. 12374, was to effectively replace the National Executive Committee in its constitution and mandate, extinguishing its member’s term in office. This position was held in Football Kenya Federation & 2 others v Cabinet Secretary Ministry of Sports, Culture and Heritage & 5 others; Kariobangi Sharks Football Club & 7 others (Interested parties) [2021] eKLR.
103.We heard from the Respondents that this decision has been challenged at the Court of Appeal. However, it was not asserted that the Court of Appeal has stayed the judgement of the High Court and the Tribunal is obliged to abide by the judgment of the High Court until the same is reversed or otherwise stayed.
104.We are aware that the Football Kenya Federation (FKF) have alleged that for the past one (1) year, there was no Kenyan Football taking place in the Country. We assume that the computation of the period was premised on when the Caretaker Committee was first appointed.
105.For the avoidance of doubt, the Tribunal disagrees and is bound by the decision of the High Court in Petition No. E473 of 2021 supra in finding that the FKF Caretaker Committee was validly instituted and the CS (at the time) correctly exercised her powers by disbanding the NEC and appointing a Committee to assume management of the affairs of the FKF. Therefore, for the 6 months from 11th November 2021, the FKF Caretaker Committee was legally in charge of Kenyan Football and that the NEC were effectively discharged from their office and duties the ban from FIFA notwithstanding.
106.FKF had previously argued that the Committee was not validly in place by virtue of the FIFA ban and that the appointment breached the FIFA Rules and Regulations. A similar argument had also been advanced by the FKF in Football Kenya Federation (FKF & 2 others v Heritage & 5 others; Club & 7 others (Interested Party) supra. They were reminded that the Regulations made by FIFA are not a treaty as has been held in several decisions and that by virtue of them approaching the Court they recognized that national law applies to them. The Court stated that:“The 1st petitioner has also come to court on the basis that the 1st and 2nd respondents contravened their mandate under section 52 of the Sports Act and as a result breached their constitutional rights. This is a clear indication that they are subject to the Sports Act and the Constitution of Kenya and the national laws governing the Nation of Kenya, a fact they admitted in their oral arguments. The other assertions are untenable. FKF is first and foremost subject to the Constitution of Kenya and the Laws of Kenya. It receives funding of activities from the National Treasury.”
107.Indeed, the FKF is a creature of the Sports Act and must necessarily comply with municipal law as was affirmed in the above case. We are inclined to agree with the submissions of the Petitioners that the ban was in relation to Kenyan football participating in International Competitions rather than Kenyan football as a whole. Local and national football was legally taking place under the provisions of the Sports Act and the Constitution during the life of the Caretaker Committee.
108.However, upon the expiry of the first six (6) month period, the Cabinet Secretary appointed several Transition Committees. Three (3) FKF Transition Committees were appointed through Gazette Notices No. 5518 dated May 13, 2022, No. 7005 dated June 16, 2022 and No. 9772 dated August 15, 2022 respectively.
109.However, we have outlined that Section 54(2) of the Sports Act deliberately limits the period with which a caretaker committee can be appointed to a period not exceeding 6 months. Despite the urging of the Petitioners’ arguments that the CS is unrestricted in the number of committees to be appointed, in our view this provision limits the authority of the CS to interfere with the running of a Sports Organisation for more than 6 months and enhances their independence.
110.Upon expiry of the FKF Caretaker Committee's term of six (6) months from 11th November 2021, the control of the Sports Organisation should have been handed back to the newly elected officials of the Sports Organisation. In our view, the mandate of the Committee or person appointed under Section 54(1) of the Sports Act is limited to running the affairs of the Sports Organisation on an interim basis and with particular focus on implementing the recommendations of the Inspection Report.
111.In our view, the Cabinet Secretary for Sports apprehended that the Committee was disbanded and had also mandated the Committee to co-ordinate elections of officials of the FKF according to the Sports Act and the Sports Registrar Regulation of 2016 and to hand over the management of FKF to the newly elected officials after the election.
112.For some reason, the Cabinet Secretary seemed to have reneged on her position and appointed several Transition Committees upon the expiry of the Caretaker Committee’s mandate.
113.The import of the Gazette Notice issued on 11th November 2021 is that the FKF did not have a NEC in place. The election of members of NEC is undertaken according to Articles 27 and 28 of the FKF Constitution (2017). Upon the expiry of the Caretaker Committee’s mandate on 11th May 2022, there was no lawful body in charge of FKF. There was no NEC and the Cabinet Secretary did not validly exercise her powers in appointing a new committee.
114.The three subsequent Committees therefore constituted a usurpation of the independence of the FKF and their appointment was irregular, unlawful and not in consonance with the provisions of Section 54(2) of the Sports Act, 2013.
115.The FKF Constitution as well as the Sports Act does not envision a scenario where the Cabinet Secretary can reappoint persons as members of the National Executive Committee by Gazette Notice or otherwise. This provision is likely present to prevent third party interference. In their wisdom, Parliament drafted an elaborate procedure before the appointment of a manager (on an interim basis) of a Sports Organisation. To this end, they seem to have a common objective. The Sports Act does not give the Cabinet Secretary for the time being in Charge of Sports the power to appoint an official save for on an interim basis and after the current management has failed to implement the recommendations of the inspection report.
116.We are aware that the High Court made a decision upholding the removal of the NEC members in Petition No. E473 of 2021 supra. It is undisputed that the decision was appealed but there was no decision by the High Court staying the application of the decision. The actions of the Cabinet Secretary in declaring that the NEC was validly in office on 4th November 2022 was sub judice as we understand their validity in office is still under consideration in the Court of Appeal. The CS could not re-appoint members to office who had in law, ceased to hold those offices.
117.Similarly, and without prejudice to the foregoing, the letter from the CS on 4th November 2022 to FIFA and the communications to the media are not statutory instruments, but declarations which are ineffectual to reappoint members of the NEC to an already disbanded committee. In other words, executive fiat is not sufficient to put in place members of what is otherwise an elected body. We are persuaded that the correct position in compliance with the Sports Act would have been a fresh election of new FKF NEC officials into office.
118.For the avoidance of doubt, from 11th May 2022 to date, there has been no legally constituted body running the affairs of the FKF and the recent declaration by the CS resulting in the disbanded NEC taking over the affairs of the Federation is without lawful basis.
III. The legal effect of the appointment of the caretaker committee in lieu of the elected NEC
119.As already explained above, the appointment of the Caretaker Committee had the effect of removing from office the National Executive Committee as this appears clearly from a reading of Section 54(1) of the Sports Act which provides as follows:“Where a sports organisation fails to comply with the recommendations of an inspection, the Cabinet Secretary may -a.appoint any person or committee to assume the management, control and conduct of the affairs of a sports organization, to exercise the powers and functions of the sports organization to the exclusion of its officials, including the use of its corporate seal, where the sports organization concerned has been unable to conduct its affairs in a proper manner; orb.remove any official of a sports organization who, in the opinion of the Cabinet Secretary, has caused or contributed to any contravention of any provision of this Act, or any regulations or directions made thereunder or to any deterioration in the financial stability of the sports organization or has conducted himself in a manner which is detrimental to the interest of the relevant sporting discipline, or which has brought the sporting discipline into disrepute.”
120.As we have explained above, the High Court has upheld the decision of the Cabinet Secretary and has stated that the National Executive Committee was disbanded. We have gone to significant length to explore the meaning of disband.
121.The effect of the foregoing therefore, is that there was no National Executive Committee in place capable of making the decision of 9th November 2022 which is the subject of the challenge by the Petitioners. This conclusion rises from the understanding in law of the effect of a decision or act that is void. Lord Denning explained this aptly as follows: in the often-cited case of MacFoy v United Africa Company Limited [1961] 3 All ER 1169 about the effect of nullity:“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. So will this judgment collapse if the statement of claim was a nullity. But if an act is only voidable, then it is not automatically void. It is only an irregularity which may be waived. It is not to be avoided unless something is done to avoid it. There must be an order of the court setting it aside: and the court has a discretion whether to set it aside or not. It will do so if justice demands it but not otherwise. Meanwhile it remains good and a support for all that has been done under it. So will this statement of claim be a support for the judgment, if it was only voidable and not void.”
122.The Tribunal appreciates that this conclusion has significant ramifications for the running of football in Kenya and will return to address this issue.
123.This conclusion makes it unnecessary to explore the issues as to whether the Petitioners’ legitimate expectation and whether there was a breach of the Petitioners’ right to Fair Administrative Action and a right to fair hearing should be determined. Nonetheless, in the event that we are wrong in our conclusion as to the legal effect of the appointment of the Caretaker Committee, we will give consideration to the additional issues framed by the Tribunal for consideration.
IV. Whether the decision nullifying the 2021/2022 league was lawful having regard to the following considerations:
a. the Petitioners’ legitimate expectation;
124.The Petitioners have contended that the decision to nullify the leagues was against their legitimate expectation because they honoured matches expending considerable resources and played under the management of the Caretaker Committee and the Transition Committees.
125.We shall use the Kenya Premier League as a sample to illustrate the management and control of the FKF Caretaker Committee over the various football leagues in Kenya.
126.The First Match Day of the Kenya Premier League Division 2021-2022 season took place on 25th September 2021. The NEC was the body in control of the management of Football in Kenya at the time. Matchday 6 was played between 5th and 7th November 2021 and this appears to be the last round of fixtures played under the FKF regime. The Gazette notice issued appointing the Caretaker Committee was issued on 11th November 2021. We have decided that the FKF Caretaker Committee was indeed validly in place and there is no need to rehash that fact.
127.There appears to be a period when no matches were played in one of the FKF leagues, the Kenya Premier League, between 7th November 2021 and 4th December 2021. There seems to be a period where there was uncertainty over whether the league should continue. However, the Clubs decided to participate in the league from 4th December 2021. Three matchdays that is 7, 8 and 9 were affected by the uncertainty and the matches had to be rescheduled. The last match day to be played under the control of the FKF Caretaker Committee was Matchday 29 from 5th to 9th May 2022. The mandate of the Caretaker Committee lapsed on 12th May 2022.
128.The Cabinet Secretary subsequently proceeded to appoint several Transition Committees with compositions that mirror the existing Caretaker Committee to assume and manage football in the Country. She gazetted the same under the auspices of Section 54(1) of the Sports Act, 2013. For the remaining 5 Matchdays, the league was under the care of the Transition Committees.
129.The Petitioners have alleged that the Gazette Notice gave the Committee legal standing to organize the matches in question while the Respondents have disputed the same.
130.We find that the Football Clubs were indeed bound by their duty to honour matches that were organised by the legal Caretaker Committee from 11th November 2021 to 11th May 2022. However, we have determined that the Transition Committees were a usurpation of power by the CS and that they were illegal, the body that constituted them did not have any legal standing.
131.The facts are that five matchdays in the FKF Premier League were played under the management and control of the FKF Transition Committees. Several matches had also been played and supervised by the Transition Committee in the lower divisions of the league as well as in the Leagues designated for women football. Unfortunately, the Committees were illegal and every action of theirs was not in consonance with the Constitution and national law.
132.However, it was not the place of the FKF members to decide what is law and what is not. It seems to us that every club decided to participate in the league rather than face a penalty of forfeit and being docked two goals, particularly with the leagues being in the business end of the season where points and goal differences count the most. In our view, because of the Statutory instrument being in place the Clubs had a legitimate expectation that the Committee was validly constituted and they had legitimate power to manage and oversee the league until its completion.
133.The Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR outlined an instance when legitimate expectation would arise as follows:“An instance of legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfil.”
134.The test for legitimate expectation was outlined in R v Devon County Council, ex parte Baker and Another; R v. Durham County, ex parte Curtis and Another in support of the proposition that a claim of legitimate expectation can only be established when there is a clear representation, upon which it was reasonable for the claimant to rely; and if this condition is fulfilled, then the public body will be bound by the representation, unless its promise is inconsistent with its statutory obligations.
135.In adjudicating legitimate expectation claims, the Court follows a two-step approach as explained in the case of Republic v Principal Secretary, Ministry of Transport, Housing and Urban Development Ex parte Soweto Residents Forum CBO [2019] eKLR;I.Firstly, it asks whether the administrator’s actions created a reasonable expectation in the mind of the aggrieved party. If the answer to this question is affirmative, then;II.Secondly, whether the expectation is legitimate. If the answer to the second question is equally affirmative, then the court will hold the administrator to the representation, that is enforce the legitimate expectation.
136.We find that indeed, the subsequent gazette notices, notwithstanding our finding on their legality, was a clear representation by the Cabinet Secretary that the committees were entitled to run football and that the same was reasonably relied upon by FKF members in participating in fixtures under the control of the Transition Committees given that no interpretation was offered by the Courts of Law as to whether the actions of the Cabinet Secretary in charge of Sports were ultra vires.
137.We are persuaded that absent a definitive finding as to the legality or otherwise of the various Transition Committees, the Petitioners as well as other clubs and players participating in the various leagues were entitled to presume that their participation in those leagues was lawful and that the outcome of the matches and competitions held and organized by the Transition Committees would be recognised and upheld.
138.Clubs spent considerable resources in recruiting players, preparing for matches travelling to honour fixtures and generally participating in the activities arranged by the bodies established for the purpose of running football in Kenya.
139.We have demonstrated above that participation in the various leagues commenced before the appointment of the Caretaker Committee and continued throughout the lifespan of both the Caretaker Committee and the subsequent transition committees. It will be a grave injustice to deprive clubs and players of the legitimate expectation that their participation in the leagues would be recognized on the basis of sporting merit the legality or otherwise of the subsequent Transition Committees notwithstanding.
140.We therefore decide this issue in favour of the Petitioners.
b. the Petitioners’ right to fair administrative action and fair hearing in terms of Articles 47 and 50 of the Constitution;
141.The Petitioners have advanced the two-pronged argument that the decision was made without regard to the safeguards provided under Articles 47 of the Constitution of Kenya (2010) and the Fair administrative Actions Act as well as in regard the right to a Fair Hearing. Parliament has enacted the Fair Administrative Actions Act to give effect to Article 47(1) of the Constitution. Section 2 of the Act defines Administrative Action to include:(i)the powers, functions and duties exercised by authorities or quasi-judicial tribunals; or(ii)any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates;
142.Section 4(3) of the Act is clear that where an administrative action is likely to adversely affect the rights and fundamental freedoms of any person, the administrator shall give the party affected by the decision:i.prior and adequate notice of the nature and reasons for the proposed administrative action;ii.an opportunity to be heard and to make representations in that regard;iii.notice of a right to a review or internal appeal against an administrative decision, where applicable;iv.A statement of reasons pursuant to section 6;v.Notice of the right to legal representation, where applicable;vi.Notice of the right to cross-examine or where applicable; orvii.Information, materials, and evidence to be relied upon in making the decision or taking the administrative action.
143.It is uncontroverted that the Respondent did not allow the Petitioners any opportunity, including prior notice of the impugned decision, to participate in the decision-making process. Indeed, it is the Respondents’ case that this was a decision it was entitled to make based on various reports that it received from designated committees. The nature of those reports is not important for the purpose of this decision save to state that it is clear that there was no compliance with the safeguards provided in the Fair Administrative Actions Act.
V. Whether County Football Associations have locus to enable them to seek relief of any nature before the Tribunal against the decision of the FKF National Executive Committee (‘the NEC’) dated 9th November, 2022 (‘the decision’);
144.We find it unnecessary to rule on whether the County Football Associations (CFAs) have locus to enable them seek relief of any nature against the decision of NEC. We have established that it was not validly in place and their decision was null and void.
145.However, CFAs are affected by the decisions of the FKF and the FKF has a mandate to organize and supervise football in Kenya at all levels including County. The decisions of the NEC will trickle down to CFAs and they are therefore entitled to seek relief against a decision of the NEC.
E. Disposition
146.We recognize that this conclusion relating to the existence of the National Executive Committee (NEC) has significant ramifications for the running of football in Kenya.
147.This Tribunal is clothed with the Powers accorded to it by Section 59 of the Sports Act in providing expertise and assistance to resolve disputes placed before it.
148.The Federation of Kenya Football has no legally constituted National Executive Committee. We find that the FKF Constitution does not envision a scenario where the NEC is wholly removed from office. The FKF exclusively vests the power to convene a Special General Assembly in the National Executive Committee. Consequently, an impasse is created by these provisions of the Constitution.
149.We take solace in the decision of the High Court in Agricultural Development Corporation of Kenya v Nathaniel K. Tum & another [2014] eKLR wherein the Court was faced with a company run illegally and was forced to step in and convene an extra-ordinary AGM for KSC (a company) which had not held several AGMs in contravention of various provisions of the law governing Companies in Kenya. We note that even when the Cabinet Secretary puts in several measures to save football in Kenya, he would be faced with similar challenges regarding the convening of a Special General Assembly.
150.We recognize that Kenyan football has undergone a turbulent period and that significant positive steps have been made towards restoring the place of Kenyan football in the global community of football playing nations. We are convinced that an expeditious resolution to the impasse is required in dealing away with increased government interference.
151.For this reason, we direct that the members of the FKF hold the Special General Assembly within thirty (30) days from the date of this decision in accordance with Article 27, 28 and 31 of the FKF Constitution.
152.We further direct that upon publication of this Judgment, the FKF Legal Committee in conjunction with the General Secretary should circulate this decision as the notification of the place, date and agenda of the Assembly in accordance with Article 31(4) of the FKF Constitution.
153.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.
154.We also direct that the Leagues and Competitions Committee should note this decision and uphold the results of the 2021/2022 seasons across all competitive leagues organised by the FKF.
155.We do not consider it necessary therefore to address the individual prayers sought in the Petitions as these must follow as a matter of course.
156.We appreciate however, that there may be uncertainty with respect to the interpretation of this decision as it affects the secondary issues that the Tribunal had framed, but which were not argued before us, and we will allow the parties the opportunity to reflect on this decision and to seek such clarification as may be necessary for the purpose of giving practical effect to the decision. We will therefore mention the matter for this purpose on 13th December 2022 at 2.30 pm.
157.Orders accordingly;
158.Costs are reserved,
159.The right of appeal is in accordance with Rule 23 of the Sports Disputes Tribunal, 2022 which provides that;a.Any party dissatisfied with a decision of the Tribunal may lodge an appeal to the Court of Arbitration for Sport if the rules or policies of the relevant International Federation or National Sports Organization so provide.b.An appeal to the Court of Arbitration for Sports shall be lodged within the time specified in the relevant rules of the International Federation or National Sports Organizations or within fifteen days of the date of the decision of the Tribunal where the relevant rules of the International Federation or National Sports Organizations do not specify the time.c.Unless the Tribunal or the Court of Arbitration for Sport otherwise order, an appeal shall not operate as a stay of the decision to which the appeal relates
160.The Tribunal thanks all Counsel and the Parties for their co-operation and working within strict timelines and for their industry in addressing the issues before the Tribunal.
DATED THIS 6TH DAY OF DECEMBER,2022.SIGNED:JOHN M OHAGA, SC; CARB; FCIARB CHAIRPERSONJ NJERI ONYANGO, FCIARB, MEMBER MS. MARY N. KIMANI, MEMBERI. Appearancesi. Mr. Arthur Kung’u instructed by A K Ndumu Advocates for the Petitioners in SDTSC No. E036 of 2022;ii. Mr. Victor Omwebu instructed by Litoro & Omwebu for the 1st Respondent in E036, 1st to 3rd Respondents in E038iii. Mr. Munyendo for the 2nd to 15th Respondents in E036, 4th to 13th Respondents in E038iv. Mr. Njoroge Mwaura instructed by Busaidy Mwaura Ngarua & Company Advocates for the 1st and 2nd Interested Partiesv. No appearance for the 4th Interested Partyvi. Mr. Kibue for the proposed 5th Interested Partyvii. Samson Cherop appearing in person in E038 of 2022;viii. Mr. Robert Macharia instructed by Macharia Gakaria & Associates holding brief for Mr. Gakaria for the Petitioner in E039.ix. Mr. Njagi Wahome for Nairobi County Football Association and 26 others;
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