Eshiwani v Kenya Judo Federation (Tribunal Case E015 of 2023) [2023] KESDT 467 (KLR) (6 September 2023) (Ruling)
Neutral citation:
[2023] KESDT 467 (KLR)
Republic of Kenya
Tribunal Case E015 of 2023
E.Sifuna-Shiveka, Chair, Benard Murunga Wafula & A.M Owinyi, Members
September 6, 2023
Between
John Eshiwani
Claimant
and
Kenya Judo Federation
Respondent
Ruling
Parties:
1.The Claimant is a senior judoka and describes himself as a devoted member of the Judo community in Kenya
2.The Respondent is a duly registered National Sports Organization in charge of the administration and running of the affairs of Judo sporting activities in the Republic of Kenya.
Background
3.The claim is specifically made that subsequent to the officials of the Executive Committee of the Kenya Judo Federation, the Respondents, coming to office in 2019 upon registration of the Respondent as a National Sports Organization and a Certificate of Registration thereof issued by the Sports Registrar on the 26th June 2019, there have been no elections conducted which is in breach of the statutory regulations.
4.The upshot of the foregoing, as per the Claimant’s argument is that the interim officials are illegally and unlawfully continuing to hold office as the members of the Executive Committee of the Respondent. Thus, they are enjoying privileges attendant to the positions unlawfully, including tenure of office and the control of activities of the sport of Judo in the country whilst not complying to the law nor the attendant conditions imposed by the Registrar of Sports to their holding of office.
5.It is for these reasons that on 10th July 2023, the Claimant approached the Sports Disputes Tribunal vide a Memorandum of Claim seeking orders inter alia that:a)A declaration that the Executive Committee of the Kenya Judo Federation held and has been holding office illegally.b)An order restraining the current members of the Respondent’s Executive Committee from further holding and/or being appointed to any Executive office of the Respondent.c)An order compelling the Respondent to review and amend its Constitution to bring it in line with the provisions of the Constitution of Kenya 2010, Sports Act, 2013 and Sports Registrar Regulations, 2016 within 60 days of this Tribunal’s judgment.d)An order that elections in the elective offices of the Respondent be held within 90 days of issuance of the Tribunals judgment.
6.Consequently, the Respondents entered appearance and in addition filed a Notice of Preliminary Objection dated 29th July 2023 challenging the Claimant’s claim by raising several grounds couched into three, to wit; that the Tribunal lacked jurisdiction to determine the matter, that the internal dispute resolution mechanisms were not exhausted and that the suit was frivolous and vexatious with no disclosure of any reasonable cause of action.
7.Subsequently, the Tribunal directed on the 8th August 2023 that the Claimant responds to the Preliminary Objection through written submissions which directions were complied with on 15th August 2023.
8.The parties highlighted their written submissions on 16th August 2023. The written submissions were detailed with the Respondents taking up 18 pages whilst the Claimant took up 12 pages. We have proceeded to set out the main grounds and replies contained in both the written and oral submissions.
The Respondent’s Preliminary Objection
9.The Respondent contests the jurisdiction of the Tribunal and submits that the Tribunal lacks jurisdiction to hear and determine the suit since the Respondent has not submitted to its jurisdiction by consent and neither did the Respondent submit to and/or accede to arbitration in the matter by the Tribunal and/or to alternative dispute resolution.
10.Further, the Respondent avers that the jurisdiction granted to the Tribunal by the Sports Act, 2013 is purely appellate save for the only instance under section 58(b) which grants it the jurisdiction to hear other sports-related disputes that all parties to the dispute agree to refer to the Tribunal and that the Tribunal agrees to hear as a dispute resolution forum of first instance. The Respondent additionally states that no such agreements have been executed by the parties herein.
11.In addition, the Respondent states that the suit is premature and merely speculative to the extent that it has not raised the allegations made against them to the Office of the Registrar of Sports or its equivalent as the fora of first instance for the adjudication of such issues.
12.Finally, the Respondent argues that the suit is an abuse of the Court process and an invitation for the Tribunal to encroach on the meditative roles of the Office of the Sports Registrar or its equivalent, or the Government Ministry in charge of sports as contemplated in Articles 13(2)(a) of the respondent’s Constitution in so far as delay or deferment of elections is concerned.
13.The Tribunal was urged to issue punitive sanctions against the Claimant as a vexatious litigant.
The Claimant’s Response
14.The Claimant opposes the Preliminary Objection by first arguing that the competency tests of a Preliminary Objection was not met as the same strayed into factual examination of that needed assessment of the evidence presented.
15.The Claimant states that the doctrine of exhaustion before embarking on the judicial process was not applicable as the dispute arose not from the delayed or deferred elections as indicated by the Constitution referenced but arose from the illegal and irregular holding of office by the Respondent's Executive Committee beyond the 90 days statutory period. Thus the provisions cited by the Respondents in their Preliminary Objection are intended for disputes arising from delayed or deferred electoral processes, not the issues raised in the suit.
16.Moreover, the delay and refusal of the Respondent's officials to hold elections within the stipulated 90 days of registration are not electoral disputes but a flagrant violation of statutory obligations. Thus, it cannot be contended that the suit is premature for failing to exhaust electoral dispute resolution mechanisms, least as a preliminary objection.
17.The Claimant urged the Tribunal to consider that the Jurisdiction of the Tribunal bypasses the nature of an appeal from the Registrar of Sports and did not require consent from the parties to the dispute.
18.The Claimant further submitted that the Respondent's assertion that the Claimant's suit is an abuse of process and does not disclose any infringed rights, as stated in the Preliminary Objection, is a matter that cannot be determined solely on points of law. This is because it necessitates an examination of the evidence presented and a legal determination of whether the claims raised are justified.
Issues
19.From the foregoing, the main issues flowing from the Preliminary Objection have been crystallized into two:i.Whether the Sports Disputes Tribunal has the jurisdiction to hear this matter;ii.Whether the Internal Dispute Resolution Mechanism was exhausted before approach was made to the Tribunal.
Analysis and Determination
20.The Sports Dispute Tribunal is a subordinate court established by Section 55 (1) of the Sports Act, 2013 in furtherance of Article 169 of the Constitution of Kenya 2010 which under Article 169 (1)(d) defines subordinate courts to include:
21.In essence, the Tribunal is a specialized tribunal with members having not only the qualifications in the legal field but also experience and knowledge of the subject matter of sports and consequently exercising those judicial powers flowing from both the people’s constitutional power and legislative authority.
22.The jurisdiction of the Tribunal is derived 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; and(c)Appeals from decisions of the Registrar under this Act.The Tribunal has been invited through the Preliminary Objection to make a determination on the question of its own jurisdiction. This is a mandate akin to the principle of kompetenz-kompentenz in arbitration as alluded to in an article The Fallacy Of ‘Toothlessness’ At The Sports Disputes Tribunal: A Comprehensive Analysis Of The Tribunal’s Far-Reaching Jurisdiction by the Hon. the Chair of the Tribunal John Ohaga SC published in The Platform edition of December 2022. This power, he posits, is read with the Sports Disputes Tribunal Rules 2022, (Legal Notice No. 49 of 2022).
23.The Claimant has pointed out in particular Rule 6 of the Sports Disputes Tribunal Rules 2022 that provides that:
24.The Respondent on the other hand has noted that jurisdiction can be raised at any point in the suit yet definitive if it is discovered that a court lacks jurisdiction even at the point of judgement. In the landmark case of Owners of the Motor Vessel “Lilian S” –VS- Caltex (Kenya) Ltd [1989] KLR 1, the Court of Appeal averred as followsFurthermore, in the case of Kakuta Maimai Hamisi -vs- Peris Pesi Tobiko & 2 Others (2013) eKLR stated that: -
25.Jurisdiction flows from the constitution, legislation or both. Hence, a court or body exercising judicial powers ought to appraise themselves of where they derive the exercise of such powers. The court in Samuel Kamau Macharia -vs- Kenya Commercial Bank and 2 Others stated that:
26.In light of the foregoing, it is clear that jurisdiction is fundamental to the hearing of any dispute.
27.The Sports Disputes Tribunal was established to hear sports related disputes for the efficient resolution of such matters in a forum that grants parties a specialized hearing of their grievances. In particular, the Sports Act stipulates for the inclusion of persons with experience in the sport industry to form part of the Tribunal’s bench, notwithstanding their non-legal background. This clearly attests to the specialized nature of this Tribunal.
28.Therein lie the qualities of specialized Tribunals which through various interventions, including the decision in Okoiti v Judicial Service Commission & 2 others [2021] KEHC 461 (KLR) has anchored them firmly as mechanisms in which disputes may be resolved. In the decision, it was stated as follows:The local tribunals, therefore, possess the following qualities: -(i)They are courts of law;(ii)They are subordinate to the superior courts;(iii)They are not advisory in nature;(iv)They are not administrative tribunals;(v)They are not presided over by or include a Judge of the superior courts in their membership;(vi)They are formed under an Act of Parliament;
29.The advantage of Tribunals has also been drawn from the preceding historical precursors like the Francks Committee in the UK that posited:
30.Undeniably, the matters to be referred to the Tribunal must be sports related matters and there must also be a dispute. Indeed, one of the questions that was has arisen in this Preliminary Objection seems to be the contention by one of the parties on whether there is even a dispute at all that would invite the judicial involvement of the Tribunal.
31.On whether the matter is a sports related matter, the Tribunal notes from the issues framed that indeed the Kenya Judo Federation is a sports organization in the style of a national sports organization. National sports organization are clothed with certain privileges such as exclusivity which means once a national sports organization has been granted registration by the Registrar of Sports, others who may wish to have similar or closely related national sports organizations in the same field will under Section 47(2) of the Sports Act be denied registration. To this extent, it behooves national sports organizations to be mindful of the honour of registration and accommodate those that would have otherwise formed rival organizations had the law permitted them.
32.On whether or not there was a dispute, the Respondent has submitted that: a cursory look at the suit hints that it is an appeal not; not of any sort; neither is it a sports related dispute. Perhaps we will have to probe if there is a dispute. In the eyes of the Appellant, there is none; the bone of contention stems from a delayed constitutional review process and delayed elections.It is interesting that the choice of words includes the phrase the bone of contention which in effect would imply a dispute exists.
33.To effectively address whether a dispute is place, the doctrine of Ripeness will be necessary to consider in the context of non-justiciability.
34.In Kiriro Wa Ngugi & 19 others v Attorney General & 2 others [2020] eKLR that was Nairobi Constitutional Petition No 254 of 2019, the Learned Judges comprehensively addressed the entire concept of non-justiciability. Speaking to Ripeness doctrine, the judges stated as follows:-Equally, in Wanjiru Gikonyo & 2 others v National Assembly of Kenya & 4 others Nairobi Constitutional Petition No 453 of 2015 [2016] eKLR, Onguto J stated:
35.In a matter where one of the parties considers that there is an issue that is yet to be resolved and where divergent positions are taken by both parties, it would be imprudent not to examine whether there is an issue that is open and ripe for determination.
36.Tied to the Doctrine of Ripeness is therefore the issue of the right forum for the dispute to be heard and thus the determination of the jurisdiction or lack thereof of the Tribunal. In their reading of Section 58(b), the Respondent imputes that consent of parties must be obtained or be in existence before they appear before the Tribunal. This section has been construed by some to be a blanket requirement for all sports disputes before the Tribunal to be encapsulated by consent.
37.The decision of Amazing Sports Talent Agency v Tusker Football Club; Atotos Sports Management [2022] eEKLR has been cited for its determination as follows:
38.It is noteworthy that any decision that is cited and relied on before the Tribunal appreciates the words of the Court of Appeal in The German School Society v Helga Ohany Civil Appeal No. Nai. 325 of 2018 which cautioned that decisions are made based on facts before the Judicial body. The binding authority must therefore speak to the facts. Unfortunately, the Tribunal did not benefit from both Counsel contradistinguishing the facts of the authorities placed before the Tribunal as they concentrated on repeating orally what had been stated in their written submissions without exhaustively rebutting the Opposing Counsel’s submissions. The Judges in the case of German School Society spoke to this contradistinguishing by stating:
39.Section 58(b) of the Sports Act should not be read in isolation to the intention of the entire legislation. Whilst the wordings indicate that there must be a preceding process of consent by parties, the same have to be read with Section 46(5) of the Act that makes it obligatory for sports organizations to submit a constitution to the Registrar of Sports prior to registration which shall contain as a basic minimum, the provisions set out in the Second Schedule to the Sports Act. The Second Schedule then goes ahead to list under (f) that:The Sports Disputes Tribunal Rules have aligned themselves to the Court of Arbitration for Sport by stipulating under Rule 23 that 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.
40.Consequently, the Constitution of the Sports Organization operates as an agreement to subject themselves to the Sports Disputes Tribunal. In turn, the members of that Sports Organization by enlisting as members also by implication subject themselves to the Tribunal. To cast the Tribunal into the unfortunate debacle of determining disputes between consensual parties stands the risk of its emasculating it at best, if not rendering it defunct.
41.The position will be different between parties who are not ipso facto members of the Sports Organization as was in the case of Amazing Sports Talent Agency above which would then distinguish it from the facts of the current case.
42.Jurisdiction is not expected to be donated to the Tribunal by the parties to the dispute nor is it expected that the Tribunal will wash its hands off a sports dispute merely on the fact that they do not agree to hear the dispute. This was stated by The Court of Appeal in Jamal Salim v Yusuf Abdulahi Abdi & another Civil Appeal No. 103 of 2016 [2018] eKLR stated as follows: -This should be read together with the decision in Orange Democratic Movement v Yusuf Ali Mohamed & 5 others [2018] eKLR, where the Court of Appeal further stated:
43.The Tribunal appreciates the constitutional moment seized and fortified by statute to establish specialized tribunals must not be discarded and/or subjected to the whims of parties. It is inconsistent to the development of law and adjudication of disputes for any judicial body to first require parties’ consent. The general rule is that parties cannot consent to jurisdiction and create it where it does not exist. Subject matter jurisdiction cannot be created where it does not exist while personal jurisdiction can be waived in peculiar circumstances. Nevertheless, it still remains upon the Tribunal to determine if it has such jurisdiction.
44.Based on Kompetenz-Kompetenz - and the resultant doctrine - this is the watermark the approach judicial institutions or bodies exercising such powers approach the question of jurisdiction. The Tribunal has in the past and without being clairvoyant will in the future rule as to the extent of its own competence on an issue before it. In Charles Wambugu Kariuki v National Olympic Committee of Kenya, the tribunal held as follows:
45.This, rests on the issue of sports organizations in their Constitutions having the choice to have an internal dispute resolution, before the mandatory external dispute resolution of the Tribunal kicks in, as the order in which disputes should be resolved.
46.To buttress the foregoing, the object of the Court of Arbitration of Sports was to take sports disputes out of national courts. This is in light of the nature of disputes that they handle. In fact, there are other international sports federations that opt to oust the jurisdiction of national courts in express terms over matters that touch on the sport. The existence of this Tribunal is hence a life line for municipal adjudication of cases that fall within the ambits precluded from national courts by these international federations.
47.The progressiveness of the Constitution and enabling statute to establish the Sports Disputes Tribunal, as earlier mentioned, has to be treated with utmost dignity by rejecting any interpretation of the law that seeks to upend the foundations of this judicial body.
48.The Tribunal is appraised of the decision in Dennis Kadito vs Sofapaka FC Appeal No. 23 of 2016 where it was held that :
49.Notwithstanding the subject-matter in the above-mentioned suit being of different character of a contract between agent and sports organization, the expectation by the law that the sports organizations have dispute resolution mechanisms in their Constitutions that do not oust the Tribunal gives comfort that the Tribunal will not be largely departing from precedent in holding that it has Jurisdiction in this matter.
50.Based on the myriad of cases that have been cited by the parties in their submissions, it has been necessary to examine Section 58 of the Sports Act in full to appreciate where it is to be viewed in the prism of stare decisis and stating any grounds for departure. Section 58 is also to be read with other provisions of the law that confer jurisdiction such as Rules 20(7), 21(2) and 25 of the Sports Registrar Regulations and Section 31 of the Anti-Doping Act. Section 58, in our view, is not at all exhaustive. In R v Anti-Doping Agency & Sharad Rao, it was stated by Justice Odunga as follows:
51.Therefore, with respect to the above, the Tribunal shall not lend itself into abiding by a previous decision that it considers counterintuitive to the discharge of its duties by usurping its powers. The Tribunal wishes to reiterate that it is competent enough to discern when and why it lacks jurisdiction to hear a matter even before the parties’ own motion regarding the same. The facts of each case at hand ought to be what matters for every decision.
52.Indeed, there are instances where a cursory look at the subject matter or person(s) before the Tribunal can easily be identified as having or lacking jurisdiction. However, where the same cannot be established at first instance then the Tribunal adverts itself as a specialized body to determine whether the nature and character of the suit is envisaged to be dealt with by the Tribunal.
ii. Whether the internal dispute resolution mechanisms ought to have been exhausted
53.Next and closely related to the issue of Jurisdiction was whether internal dispute resolution mechanisms ought to have first been exhausted. A preliminary objection was thus raised on this ground.
54.The law is lucid clear on the application of Preliminary Objections. The court enunciated as follows in the landmark case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696:
55.In tandem with the above, the Tribunal shall only pronounce itself on the point of law raised. Every other allegation or contested facts is a matter to be dealt with substantively if the objection fails.
56.The respondents object to the hearing of this petition on grounds that it is premature and that there is an alternative forum that could have competently handled the matter. Specifically, that the Claimant failed to exhaust the dispute resolution mechanism under the Sports Act, 2013 and its attendant regulations.
57.Furthermore, the Respondents have cited Regulation 20(2)(b) of the Sports Registrar Regulations 2016 declaring that the elections can only be conducted at the behest of relevant administrative government bodies.
58.At this point, the Tribunal seeks to determine the nature of the dispute vis a vis the doctrine of exhaustion.
59.To begin with, the Tribunal shall not belabour on the rationale of practice directions that various courts and tribunals develop to enhance the efficient discharge of their duties. It however directs the parties to Rule 6 of the Sports Disputes Tribunal Rules, 2022 which provides that:-
60.On the doctrine of exhaustion, the court in William Odhiambo Ramogi & 3 others v Attorney General & 3 others; Muslims For Human Rights & 2 others (Interested Parties) [2021] eKLR averred as follows:
61.It is not in doubt that where there are means of dispute resolution then they should be exhausted. This is the interplay of the internal dispute resolution and subsequent external dispute resolution mechanism that was adverted to above. Nevertheless, the nature of the dispute before this Tribunal presents a peculiar scenario. In essence, that the impugned legality of the respondent’s body offices denotes basic incompetence to handle a question challenging their legitimacy. According to the Claimants, the lack of authority is an outcome of the Respondent’s failure to hold elections within the prescribed period.
62.There is a dispute on which Constitution is the reigning Constitution of the Respondent. This creates a temptation to go into the facts of the case that then contradicts the hallmark of the Preliminary Objection. Be that as it may, the Preliminary Objection is also based on Clause 13(2)(a) of the Constitution that was presented by the Respondent which states that:
63.This appears, on the face of it, not be a dispute resolution clause that is anticipated by the Sports Act. The same would be the one found at Clause 20 of the Constitution which anticipates the Committee to wit, the Disciplinary Committee, Dispute and Arbitration Committee. Under Clause 20(e) the external dispute resolution mechanism is captured by the statement:
64.Clause 13(2)(a) is a clause that is a shield for members where the incumbents fail to hold elections and by continuing to be in office beyond the constitutional term of four years of this sports organization. It is improbable that the Clause is then used a shield by the interim members of the Executive Committee to the complaint that they have been in office longer than the interim period prescribed as a condition for the registration of the Sports Organization.
65.The Office of the Sports Registrar is a critical player in the registration of the sports organization and in the taking of office and continued stay in office of the officials. It has been demonstrated in evidence placed when the claim was filed and reiterated in the submissions objecting to the Preliminary Objection that the Claimant wrote to the Office of the Registrar of Sports and that the Office of the Registrar of Sports has not responded to the Claimant. Further, that by extension, the previous letter from the Registrar to the Federation about their reticence in holding elections was in breach of the conditions of the issued registration certificate.
66.The doctrine of Exhaustion that is called to mind by the Respondent is one that ought to be examined with caution. Where the forum for internal dispute resolution mechanism is clear, the Tribunal should not hesitate to let the specified body handle the dispute to its conclusion and only intervene where there is an appeal preferred to the Tribunal.
67.In Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR, where the Court of Appeal stated that:
68.It is repulsive to justice to prevent a person from approaching a forum where they believe justice shall flow on the pretext that they are yet to exhaust other mechanisms. To the extent that the Claimant demonstrates that he has not set bootstraps in his claims or couched the claim in a manner that claims violations just in the pretext to gain entry to this Tribunal, then the Tribunal should entertain the claim and rule on it on its merits. The Court of Appeal in the case of DT Dobie v Joseph Mbaria Muchina and Another [1980] eKLR gave the wisdom that a court of justice should aim at sustaining a suit rather than terminating it. It is not the fault of the Claimant before us that the Office of the Registrar of Sports whom he seemed to have approached has not responded to him.
69.Lastly, the prospects of the claim to be fully adjudicated on by the administrative bodies would be an abdication of the Tribunal’s role. This is because, it is still unclear why elections have not been held in consonance with the statutory regulations. Therefore, the merits of such infraction or otherwise of the law must be adjudicated in this forum.
Conclusion
70.Having analyzed the issues as above, the Tribunal posits as follows on the issues raised.
71.With regards to jurisdiction, the Tribunal points out that it is a specialized body whose primary object is to hear sports related disputes. Hence, it shall refrain from denying the exercise of its mandate by providing persons aggrieved in sports related matters in a forum tailored to ventilate their issues.
72.Next, is that the Respondents objected to the claim over failure to exhaust internal mechanisms for dispute resolution or presentation of the dispute to the Registrar of Sports and/or other administrative bodies. The Tribunal avers that this matter did not fall within the internal dispute resolution mechanism that has been deployed in matters such as the R v Sports Disputes Tribunal & 51 others Ex Parte HCJR No. 5 of 2022 where the Court found a clear path towards the Tribunal that involved passage through Internal Disputes Resolution Mechanism. Moreover, the continued stay in office which is contentious as per the Claimant countermands the ability of administrative bodies to duly deal with the issues raised. Thus, the Tribunal deems it more suitable and just to substantively hear the claim.
73.For or all the reasons set out in the foregoing, it is the finding of the court that it would be inopportune for the Tribunal to strike out the claim against the Respondents at this stage.
74.Consequently, the Preliminary Objection application dated 1st August, 2023 is disallowed.
75.Each party shall bear its own costs.
76.This matter shall be mentioned on 27th September, 2023 at 2.30pm for further directions.
DATED AND DELIVERED AT NAIROBI THIS 6TH DAY OF SEPTEMBER, 2023.Signed:...........................................Mrs. Elynah Sifuna-ShivekaPanel Chairperson.......................................Mr. Benard Murunga WafulaMember........................................Mr. Allan Mola OwinyiMember