Cherop (Suing as Treasurer Baringo County Football Association) v Mwendwa & 2 others; Registrar of Sports (Interested Party) (Tribunal Case E017 of 2023) [2023] KESDT 480 (KLR) (19 September 2023) (Decision)
Neutral citation:
[2023] KESDT 480 (KLR)
Republic of Kenya
Tribunal Case E017 of 2023
Benard Murunga Wafula, Chair, Peter Ochieng & A.M Owinyi, Members
September 19, 2023
Between
Samson Cherop (Suing as Treasurer Baringo County Football Association)
Petitioner
and
Nick Mwendwa
1st Respondent
Barry Otieno
2nd Respondent
Safaricom Limited
3rd Respondent
and
Registrar Of Sports
Interested Party
Decision
1.The Petitioner has described himself as a football club official in various capacities including serving as Treasurer Baringo County Football Association.
2.The 1st Respondent is the current President of the Football Kenya Federation while the 2nd Respondent is the Secretary General cum CEO of the said Federation.
3.The 3rd Respondent is a leading telecommunications company in Kenya which is also actively involved in community development.
4.The Interested Party is an office created by the Sports Act to register and regulate sports organizations in Kenya amongst other duties.
Background
5.The Petitioner filed an application on 30th May 2023 at the Sports Disputes Tribunal under a Certificate of Urgency with the primary prayer for Injunctive Orders against the Respondents from continuing with the tournament known as Safaricom Chapa Dimba Football Tournament and instead the same be organized by a Federation office that is legally recognized by the Registrar of Sports.
6.This prayer was based on the alleged illegitimacy of the current composition of the Football Kenya Federation and a declaration that as a consequence, the intended partnership between the Federation and the 3rd Respondent was invalid.
7.Whereas the Hon. the Deputy Chairperson of the Tribunal declined to grant the Injunction Orders on 6th June 2023, she nonetheless directed that the Petitioner’s Application be served on the Respondents with the mention of the matter set for 20th June 2023.
8.On 20th June 2023, the Petitioner reiterated the prayer for conservatory orders which was declined and orders given by the Hon. the Chair of the Tribunal that parties file pleadings and serve the Opposing Counsel with the matter listed for further mention on 18th July 2023.
9.On 18th July 2023, Counsel for the 1st and 2nd Respondents confirmed that he had filed a Notice of Preliminary Objection to the matter whereupon a Panel was constituted to dispense with the Preliminary Objection with the hearing scheduled for 1st August 2023 when it was part heard and hearing concluded on 22nd August 2023.
10.The Notice of Preliminary Objection by the 1st and 2nd Respondents dated 7th July 2023 filed was based on the following grounds:i.The subject matter of the Petition amounts to an abuse of the court process and violated the doctrine of res judicata.ii.The Honourable Tribunal lacks the requisite jurisdiction to entertain the Notice of Motion and Petition dated 29th of May 2023.iii.The Petitioner lacks the locus standi to institute this suit.
The Respondents Case
11.The 1st and 2nd Respondents assert that the instant petition is caught up within the doctrine of res judicata. This is because it is grounded in the decision made by the Hon. the Cabinet Secretary for Youth, Sports, and Arts to reinstate the Federation's National Executive Committee (the NEC) into office through a letter. This particular decision had previously been the subject matter in SDTSC No. E036 of 2022, consolidated with SDTSC No. E038 of 2022 and SDTSC No. E039 of 2022 (referred to as "the Consolidated Cases") where the decision to reinstate the NEC was challenged.
12.In the Consolidated Cases, the Tribunal had determined that the letter reinstating the Respondents' National Executive Council (NEC) lacked legal basis and authority since it did not qualify as a statutory instrument capable of revoking a Gazette Notice issued by the former Cabinet Secretary responsible for sports which had disbanded the Football Kenya Federation's leadership.
13.However, the 1st and 2nd Respondents further argue that subsequent to the Tribunal's decision in the Consolidated Cases, the High Court in HCJR 5 of 2022, in the matter of R vs. Sports Disputes Tribunal & 38 others ex parte, issued an order of certiorari against the Tribunal's decision in the Consolidated Cases.
14.Therefore, in addition to their claim that the matter was already canvassed, their contention is that this order from the High Court essentially nullified the Tribunal's previous decision, thus, the Petitioner's reliance on it is no longer valid.
15.Furthermore, the 1st and 2nd Respondents contend that the Tribunal lacked jurisdiction in the matter, citing the provisions of Section 58 the Sports Act 2013. The 3rd Respondent joined the 1st and 2nd Respondents on this Ground of the Preliminary Objection. The Tribunal's jurisdiction was primarily appellate, according to the Respondents, except for sports-related disputes that all parties involved agreed to refer to the Tribunal. They argued that Section 58 of the Sports Act clearly supported this interpretation.
16.In that context, since the instant suit was not an appeal, and the parties did not mutually consent to have it heard by the Tribunal, they asserted that the it is procedurally improper for the Tribunal to determine this case without the required agreement from all parties.
17.To bolster their assertion, the Respondents referenced legal precedents. They quoted the cases of Sports Talent Agency v. Tusker FC: Atoto's Sports Management as well as Dennis Kadito v. Sofapaka FC Appeal No. 23 of 2016 and Dennis Kadito v. Office of the Sports Disputes Tribunal & Another, 2017 as additional legal precedents that supported their position.
18.Regarding the issue of locus standi, the 1st and 2nd Respondents argued that the Football Kenya Federation (FKF) is inherently an associative organization as a national sports body. They asserted that the association represented by the Petitioner did not have any involvement or presence within the activities of the Respondents.
19.Accordingly, the collaboration between the Federation and the 3rd Respondent was aligned with the objectives outlined in their Constitution.
20.By invoking Article 11 of the same Constitution, which specifies the criteria for membership, the 1st and 2nd Respondents argue that only a listed member of their organization had the standing to challenge this collaboration. They emphasized that the Petitioner was not such a member and therefore lacked the necessary legal standing to bring forth these proceedings. In essence, they contended that the Petitioner had no direct stake in the outcome of the tournament and did not meet the prerequisites for initiating these proceedings that the FKF Constitution provides.
The Petitioner’s Case
21.In response to the Preliminary Objection, the Petitioner asserts that he indeed possessed the requisite locus standi. He emphasized that he also served in an official capacity as the chairperson of a football club known as Tilzone Ladies FC formerly Baringo Starlets that actively participated in Football Kenya Federation activities across various leagues as they evolved over time in conjunction with the Federation.
22.Accordingly, he stated, he met the criteria for membership as no evidence had been presented to show that he had been expunged from the membership roster.
23.The Petitioner contends further that County Football Associations, such as the one he represented, were competent bodies that had been duly registered with the Registrar of Sports in accordance with the Sports Act 2013. To support this assertion, he referenced SDT Case No. 3 of 2020, as consolidated with SDT Case No. 5 of 2020.
24.Furthermore, he alleges that these County Football Associations were branches of the Federation but were denied proper registration by the Federation in favor of unregistered branches. He argued that such governance malpractices within the Federation are part of what led to the disbandment of the National Executive Committee. Importantly, he highlighted that the Federation’s appeal against this disbandment had been unsuccessful unlike what the Respondents averred.
25.In light of these circumstances, the Petitioner asserts that in fact it is the Federation that is currently unable to make any legal declarations or announcements. To support this assertion, he cited the case of Milton Nyakundi Oriku v. FKF & 17 others SDTSC No. E006 of 2021, where the orders about the removal of the 1st and 2nd Respondents from Office were confirmed.
26.In summary, the Petitioner claims that his status as a County Football Association representative, the registration of such associations with the Registrar of Sports, and the governance issues within the Federation supported his right to bring forth this proceeding and consequently, locus standi in this matter.
27.In addition, in his own individual right, the Petitioner has cited the case of Petition E311 of 2020 Nicholas Mwendwa Kithuku v DCI & 2 Others, 2021 eKLR that allows a member of the public to bring an action against a national sports federation.
28.Regarding the issue of res judicata, the Petitioner argued that the Consolidated Cases had no direct connection to the current claim. To support this stance, he referenced the High Court's judgment HCJR 5 of 2022, in the matter of R vs. Sports Disputes Tribunal & 38 others ex parte, emphasizing that this judgment specifically addressed the rightful place of Internal Dispute Resolution mechanisms before exercising the right to seek external ones.
29.According to his interpretation, the High Court did not delve into the issue of the legality of the decision made by the Football Kenya Federation (FKF) and the National Executive Committee (NEC), as claimed by the Respondents.
30.The Petitioner emphasized that the High Court's decision pertained primarily to the decisions made by the NEC of the Federation at that particular time and did not extend to subsequent decisions but rather touching on the internal dispute resolution.
31.The Petitioner additionally, contended that the High Court decision had only quashed one of the decisions issued by the 1st and 2nd consolidated matters, leaving the others unaffected and still binding.
32.Furthermore, he asserted that consequently the Federation’s NEC was unlawfully holding office and misrepresenting itself to the public. He stressed that this specific matter had not been litigated in any other forum, making it appropriately within the jurisdiction of the current court.
33.On jurisdiction, the Petitioner maintained that the Sports Disputes Tribunal had jurisdiction over the matter. He argued that, despite the absence of an agreement between the Appellant and the Respondents, the underlying issue or subject of that agreement revolved around an agreement related to the organization of a sports tournament.
34.Therefore, he contended that it constituted a sports-related matter or dispute. He further asserted that this matter was not amenable to resolution through Internal Dispute Resolution Mechanisms due to what he termed as frustration on account of not being admitted to the Federation as a member and hence locked out of such forum and therefore left with no option but to approach this tribunal.
35.In summary, the Petitioner's argument on jurisdiction was based on the assertion that the dispute, though arising from an agreement, was fundamentally connected to the organization of a sports tournament and thus fell within the purview of the Sports Disputes Tribunal's jurisdiction. And additionally, that internal dispute resolution mechanisms were not suitable for resolving this matter due to concerns of bias and impartiality, given their lack of recognition by the Federation.
36.Issues for DeterminationThe issues for determination are essentially a simulacrum of the three Grounds of the Preliminary Objection rearranged as follows:-i.Whether the Petitioner has the requisite locus standi to bring this claim.ii.Whether the Sports Disputes Tribunal has jurisdiction over this matter.iii.Whether this matter is res judicata.
Whether the Petitioner has Locus Standi
37.On the issue of locus standi, it is crucial to determine whether the party that brings an action before the Tribunal has the capacity to bring the action before the Tribunal. The Petitioner has described himself as a Treasurer of Baringo County Football Association which seems to be an entity that is outside the ecosystem of the local football administration that is acknowledged by the national football sports organization, Football Kenya Federation (FKF).
38.The Petitioner has stated that his association is rightfully registered by the Registrar of Sports and has met the legal requirements stipulated in the Sports Act to become a County Football Association. The fact of registration is not controverted. What is in contention is whether this registration as a County Football Association brings with it entitlement to participate in football administration and participation in sanctioned tournaments by the Federation.
39.The Petitioner has raised valid concerns regarding the fairness and justice of the Federations actions to not recognize the Association. Unfortunately, the Tribunal has not benefitted from the wisdom of the interested Party, who is the Registrar of Sports, who would have been best placed to weigh in on the County versus Branch distinction. Specifically, if the Federation’s decision to exclude the registered county sports associations from its framework disables their ability to bring forth legitimate claims or participate fully in the Federation's activities, challenge decisions internally it would be beneficial to assess whether this exclusion aligns with legal obligations and principles of fairness.
40.It is inconceivable that County Football Association such as the Baringo County Football Association can operate in vacuo and yet still have legal registration that is subsisting.
41.It is evident from the provided information at this stage when the Preliminary Objection is being canvassed that the Football Kenya Federation National Executive Committee possesses discretionary powers to accept or deny an applicant's application. Whilst Baringo County Football Association is a duly registered county sports association, there is no corresponding evidence presented that the Petitioner himself is a member of the FKF, as required by Article 11 of the FKF Constitution. Consequently, the Petitioner cannot be considered a direct member of the FKF.
42.The Respondents have argued that it is on this basis that the Petitioner lacks locus standi, asserting that he does not possess a direct or personal stake in the activities that are the subject matter of this petition. It seems like a classic scenario where a party refuses to accept the Registration of another and then turns around and says the other party is not registered.
43.In light of these facts and arguments, it becomes a pivotal issue for this Tribunal to determine whether registration of the Baringo County Football Association is sufficient to grant the Petitioner locus standi in this case. Specifically, we must assess whether this affiliation establishes a direct or personal stake in the activities under consideration in this petition, as this will ultimately determine whether the Petitioner has the requisite legal standing to pursue his claims before this Tribunal. At this stage, this is not a matter that has been adequately canvassed.
44.Courts have nonetheless strived to baptize locus standi in the river of Constitutionalism by extending the scope within which locus lies. This happened in Mumo Matemu v Trusted Society of Human Rights Alliance and Another, Civil Appeal no 290 of 2012 in which the court then held that the stringent locus standi requirements have been buried in the annals of history. In the words of the Court,In the case at hand, it's important to note that the petition was filed by a representative of a duly registered county sports association who also separately as an individual plays an active and significant role in the management of sports within the County. Despite his club not being recognized as a member by the Federation, it appears that he plays a role in the sports governance structure as recognized by the Registrar of Sports.
45.In any event, Section 46(6) of the Sports Act, which is the relevant legislation, underscores the importance of transparency and openness in national sports organizations. It stipulates that all national sports organizations registered under the Act should be open to the public in their leadership, activities, and membership. This provision highlights the principle of inclusivity and the idea that the actions and decisions of such organizations should be accessible and accountable to the public.
46.As rightly referenced by the Petitioner, the case of the case of Petition E311 of 2020 Nicholas Mwendwa Kithuku v DCI & 2 Others, 2021 eKLR gives useful guidance where the court held:
47.This dovetails in with Article 10 of the Constitution of Kenya 2010 which by necessity and logic broadens access to the courts and tribunals. In this broader context, this Tribunal cannot sanction an invitation to a judicial standard for locus standi that places hurdles on access to the courts, except only when such litigation is hypothetical, abstract or is an abuse of the judicial process.
48.Additionally, we agree that the standard guide for locus standi must remain the command in Article 258 of the Constitution, which provides that:(1)Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.(2)In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—a.a person acting on behalf of another person who cannot act in their own name;b.a person acting as a member of, or in the interest of, a group or class of persons;c.a person acting in the public interest; ord.an association acting in the interest of one or more of its members.”
49.Therefore, by dint of Articles 22 and 258 of the Constitution, any person can institute proceedings, on behalf of another person who cannot act in their own name, or as a member of, or in the interest of a group or class of persons, or in the public interest.
50.Article 22 provides as follows:-(1)Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.(2)In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by––(a)a person acting on behalf of another person who cannot act in their own name;(b)a person acting as a member of, or in the interest of, a group or class of persons;(c)a person acting in the public interest; or(d)an association acting in the interest of one or more of its members
51.In the context of this case, the Petitioner may fall under several of these categories: As person acting on behalf of another person since he represents a County Sports Association, and advocating for the interests of this association. As person acting as a member of a group or class representing of a sports association. As person acting in the public interest where the principles of fairness, transparency, and adherence to the law in sports governance can be seen as matters of public interest. The Petitioner's actions in challenging the governance of the Football Kenya Federation (FKF) can be viewed as serving the broader public interest in ensuring proper governance of sports organizations. An association acting in the interest of its members, representative of a sports association, is advocating for the interests of similar status members within the FKF.
52.Upon these grounds and considerations, the Tribunal finds that the Petitioner has established the locus standi to bring forth this matter for adjudication. The issues raised in this case are not hypothetical, abstract, or an abuse of the judicial process, and they bear significance within the broader context of sports governance and public interest.
Whether the Tribunal has jurisdiction
53.The Sports Act circumscribes the jurisdiction of the Tribunal as follows:
54.It is crucial to clarify that the jurisdiction of the Tribunal is defined within specific boundaries, in the current case, Section 58(b). It is evident that the nature of the current dispute is ‘sports-related’. However, the Tribunal hastens to add that the fact that a dispute is sports related does not automatically grant the parties under that dispute audience before the Tribunal. Where a national sports federation is registered under the Sports Act and is required by its Constitution to provide for internal dispute mechanisms that flow into an external dispute mechanism that includes the Tribunal as a national sports arbiter, then there is implied agreement to refer matters to the tribunal.
55.This changes however where some parties are non-sporting organizations which is the situation in this case. This position was the case in the matter of Denis Kadito v Sofapaka SDT Appeal No. 23 of 2019 where this Tribunal held as follows:
56.As a Tribunal, we acknowledge that in matters involving sports-related disputes, such as the one before us involving a non-sports organization, the criteria set out in Section 58(b) can be met only when there exists a prior agreement to submit to the jurisdiction of this Tribunal. This agreement may take the form of a contractual term or arise subsequent to the dispute when the parties willingly consent to be bound by the jurisdiction of the Tribunal. In the absence of either of these circumstances, the Tribunal cannot act without the assurance provided by the law.
57.Additionally, the inclusion of the third respondent in this matter significantly alters the nature of the dispute. Safaricom Limited, a non-sporting organization, is at the heart of this matter that appears to revolve around the contract with the Respondents. However, at this juncture, it is not within our purview to delve into the intricacies of this contract to ascertain whether the issue primarily pertains to sports-related matters or constitutes a contractual and commercial dispute.
58.Moreover, the dispute in its current form is notably convoluted. It involves a County Football Association (CFA) that is unrecognized by the Federation and which CFA alleges the decision of an allegedly illegitimate governing body to enter into a contract with a non-sporting organization for sponsorship purposes is unlawful and discriminatory. This action, according to the Petitioner, excludes a valid member of the Federation from participating in the sporting activities of the respondents.
59.The intricacies of this dispute extend beyond a simple determination of whether it constitutes a sports-related matter. To address this, we would need to scrutinize the contract between the Respondents, which is not within the current scope of the proceedings before us.
60.The inclusion of Safaricom Limited introduces a non-sporting organization and contractual complexities into the dispute. Additionally, the multifaceted nature of the dispute requires an examination of the contract delving into the merits of the matter. Therefore, the Tribunal cannot assert jurisdiction in its current form.
Whether this matter is Res Judicata
61.Adjudication of any dispute ought to have a foreseeable end, and where competent aversion of mind on the facts and the prevailing circumstances is applied, then such an issue must not be relived. It is for this reason that the doctrine of res judicata is critical to safeguard the court from wasting valuable juridical time.
62.The doctrine of res judicata has been adjudicated upon several times and is currently settled on well guided principles of law prescribed in statute and judicial decisions. In Gladys Nduku Nthuki v Letshego Kenya Limited; Mueni Charles Maingi, the court quoted with approval the following decision:In Lotta vs. Tanaki [2003] 2 EA 556 it was held as follows:“The doctrine of res judicata is provided for in Order 9 of the Civil Procedure Code of 1966 and its object is to bar multiplicity of suits and guarantee finality to litigation.
63.In the case of C.K. Bett Traders Limited & 2 others v Kennedy Mwangi & another, the court in adverting its mind on the doctrine of res judicata, averred as follows:
64.It is therefore sufficient that a matter has been substantially adjudicated before a competent judicial body. In The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, [2017] eKLR), the Court of Appeal listed the elements that will lead to res judicata:
65.Notably, there are indeed exceptions to the doctrine of res judicata that the Tribunal wishes to highlight. in the case of Musankishay Kalala Paulin v Director Criminal Investigations & 4 others. The Supreme Court also discussed two exceptions to the doctrine of res judicata under Paragraph 26 where it stated as follows: -(84)Just as the Court of Appeal in its impugned decision noted that rights keep on evolving, mutating, and assuming multifaceted dimensions it may be difficult to specify what is rarest and clearest. We however propose to set some parameters that a party seeking to have a court give an exemption to the application of the doctrine of res judicata. The first is where there is potential for substantial injustice if a court does not hear a constitutional matter or issue on its merits. It is our considered opinion that before a court can arrive at such a conclusion, it must examine the entirety of the circumstances as well address the factors for and against exercise of such discretionary power.(85)In the alternative a litigant must demonstrate special circumstances warranting the Court to make an exception.
66.Upon perusal of the petition, it is evident that the Petitioner has restated previous assertions that the National Executive Committee (NEC) is illegally in office in light of a High Court decision at Nairobi in Petition number E473 of 2021.
67.Consequently, the Tribunal has been duly made aware by the Respondents over the status of the NEC in SDTSC No E036 of 2022 as consolidated with SDTSC No E038 of 2022 and SDTSC No E039 of 2022.
68.Notably, the above-mentioned consolidated cases that were anchored on the subject matter of NECs legitimacy was quashed by the High Court in the case of Republic vs Sports Dispute Tribunal and 38 Others ex parte FKF, HCJR 5 of 2022.
69.The Tribunal takes full recognition of the track of events with regards to the arguments forwarded by either parties on the validity of the decisions by the NEC. Notwithstanding, the Tribunal is conversant with extraneous circumstances surrounding the impugned National Executive Committee. Specifically, is that the current Cabinet Secretary of the relevant Ministry reinstated the National Executive Committee on 4th November 2022 which was before the 3rd Respondent launched the Safaricom Chapa Dimba.
70.The upshot of the foregoing is that the reinstatement vis-à-vis the decision in R v SDT and 38 Others ex parte FKF, HCJR 5 of 22 effectively bars the Tribunal from entertaining questions on NEC’s legitimacy. Whilst it is true that the appeal over the decision FKF Petition at Nairobi High Court Case No E473 of 2021, is yet to be determined, the outcome of the case to this application is superfluous.
71.In light of the above-mentioned facts, the Tribunal declines the invitation to rehear an application that mirrors a previous one as it is not only non-justiciable but also an exercise in futility.
72.As such, upon examining the applicant’s claim that seeks to have the Tribunal reopen a matter that has not only been decided at this level but also ventilated upon in a superior court, it is sound to stop at this point and reject the petition.
73.Having carefully considered the submissions and arguments presented by all parties, the Tribunal makes the following overall orders:i.The Notice of Preliminary Objection dated 7th July 2023 is upheld.ii.The Petition dated 29th May 2023 is struck out.iii.Each party to bear their own costs
DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF SEPTEMBER, 2023.Signed:Mr. Benard Murunga WafulaPanel ChairpersonMr. Peter Ochieng’MemberMr. Allan Mola OwinyiMember