Arte & 12 others v Hussain (Secretary General) & another (Sued as officials and representatives of FKF Garissa County Branch League) (Tribunal Case E015 of 2024) [2024] KESDT 1174 (KLR) (13 August 2024) (Decision)

Citation
Arte & 12 others v Hussain (Secretary General) & another (Sued as officials and representatives of FKF Garissa County Branch League) [2024] KESDT 1174 (KLR)
Media Neutral Citation
[2024] KESDT 1174 (KLR)
Court
Sports Disputes Tribunal
Outcome
Dismissed
Case number
Tribunal Case E015 of 2024
Judges
Benard Murunga Wafula, Gabriel Ouko, A.M Owinyi
Judgment date
13 August 2024
Language
English
Type
Judgment
Original source file
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Order
b. With regard to the Preliminary Objection raised by the Respondents arguing that this Tribunal lacks jurisdiction to hear and determine this matter as the claimants failed to exhaust internal dispute resolution mechanisms as required by the FKF Constitution, this Tribunal finds that while the FKF Constitution does provide for internal dispute resolution processes, the Sports Act grants the Tribunal broad jurisdiction to hear sports-related disputes. The right of access to justice, as provided for in an Act of Parliament, cannot be overridden by the constitution of a sports organisation. Therefore, the Preliminary Objection is dismissed. c. On the Substantive Claim: The Claimants allege they were excluded from participating in the FKF Garissa County Branch League for the 2023/2024 season “without any lawful cause, due procedure, process, nor given a right to be heard”. However, after examining the evidence and arguments presented, this Tribunal finds that the Claimants have failed oto meet their burden of proof in establishing this claim. d. The Claimants, as the party making affirmative allegations, bear the burden of proving their case on a balance of probability. They have not provided sufficient evidence to demonstrate that their exclusion was unlawful or procedurally unfair. e. Consequently, the Statement of Claim lacks merit and is hereby dismissed. f. Each Party shall bear its own costs. g. Parties have a right of appeal in accordance with Rule 26 of the Sports Disputes Tribunal Rules.
The Parties
1.The Claimants are representatives and officials of 13 football teams that play in Garissa County.
2.The 1st and 2nd Respondents are the Secretary General and Chairman respectively of the Garissa County Football Federation of Kenya League (Garissa County FKF League).
Background
3.The Claimants commenced these proceedings by filing a Statement of Claim and a Notice of Motion Application under a Certificate of Urgency all dated 2nd May 2024. The Application is supplemented by Mr Abdi Gure Arte’s Affidavit dated 2nd May 2024 while the Statement of Claim is supported by Witness Statements of Abdi Ibrahim Mohamed, Mohamed Omar Abubabakar and Ahmed Hussein Ali.
4.The Respondents filed a Notice of Preliminary Objection dated 13th May 2024 (Preliminary Objection) and a Response to the Statement of Claim dated 5th June 2024 (Respondents’ Response). The Respondents’ Response is bolstered by Witness Statements of Noordin Badel Tube, Abdiwahib Ali and Said Ahmed all dated 5th June 2024.
5.The Tribunal directed that the Preliminary Objection be deemed as part of the Respondents’ response to the Statement of Claim and the same to be subsumed within the substantive hearing of the Claim.
6.Subsequently, the Claimants formally replied to the Notice of Preliminary Objection vide a Replying Affidavit sworn by Abdi G Garte and dated 21st May 2024.
7.The suit was set down for hearing on 11th July 2024 and proceeded to be heard in full with the Claimants calling only one witness, Abdirahman Mohamed, while the Respondents called three witnesses, Noordin Babel Tube, Said Ahmed and Abdiwahab Ali.
8.With the conclusion of the hearing and the preference by the parties, the Tribunal directed the Parties to file and exchange written submissions by close of business 22nd July 2024.
9.The Claimants filed their written submissions dated 17th July 2024 and the Respondents filed theirs dated 23rd July 2024. Both parties indicated that they did not wish to highlight the submissions and would await the Decision.
Claimant’s Case
10.The Claimants’ dispute with the Respondents arises from the Claim that the Claimants have been excluded and denied participation in the Garissa County FKF League “without any lawful cause, due procedure, process, nor given a right to be heard”.
11.The Claimants requested that their claim for reinstatement be allowed arguing that the interests of justice, sports administration, and participation rights favor allowing team to participate in the league rather than excluding them arbitrarily without due process and adherence to the rules of natural justice.
12.They further suggested that the 13 teams be directed to register for the league and comply with regulations, rather thant being excluded entirely.
13.The Claimants further directly addressed the respondents' allegation that some teams were excluded due to their participation in a parallel league run by the Garissa County Football Association (Garissa FA). They stated that the Respondents failed to provide concrete evidence to support their claim that these teams were part of a separate league.
14.Moreover, the Claimants asserted that they produced letters to show that the 13 teams do not participate in such parallel league.
15.The Claimants argued that the Respondents, having admitted to excluding the 13 teams, bear the burden of proving their reasons for exclusion such as relegation, non-registration, and Garissa FA affiliation.
16.The Claimants’ response to the Preliminary Objection on the Jurisdiction of the Tribunal is that the Preliminary Objection is not grounded on pure points of law; and that they had earlier presented this matter to the Garissa FKF branch and NEC Committees. They also state that the FKF Constitution cannot override a Statute Act.
17.In sum, the Claimants pray for orders and reliefs for:1.Reinstatement back to the FKF Garissa League 2023/2024 season without any conditions and be allowed to participate as teams.2.Such interim relief, restraining orders suspending and or halting the current 2023/2024 season of FKF Garissa County League 2023/2024 season pending the hearing and determination of this claim.3.Such ancillary orders and reliefs deemed suitable in the interest of justice.
Respondent’s Response
18.The Respondents’ Preliminary Objection urges that this Tribunal lacks jurisdiction. The Respondents have framed the grounds of their Preliminary Objection as follows:a.This Statement of Claim and Notice of Motion Application herein is an abuse of court process as the Claimant had access to a judicial forum to ventilate its claim, namely, the FKF Leagues and Competitions Committee established under Article 48(3) of the FKF Constitution (2017) as read together with Rule 2.2.2 and 2.2.3 of the Rules and Regulations Governing Kenyan Football (2019) and which dispute resolution forum the Applicant chose to bypass and/or elected not to invoke.b.The Statement of Claim and Notice of Motion Application offend the express provisions of Article 70 of the FKF Constitution and thus an abuse of the Court process.c.This Statement of Claim and Notice of Motion Application offend the doctrine of exhaustion of internal remedies.d.The Honorable Court lacks jurisdiction to hear and determine the Plaint and notice of motion application herein by virtue of Section 58(b) of the Sports Act, No. 25 of 2013.
19.The cases of SDTSC Petition No. E016 of 2023: Samson Cherop vs Nick Mwendwa and 3 Others , Godfrey Osotsi vs. Amani NaitonalNational Congress (2019) eKLR and Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR were relied upon in challenging this Tribunal’s jurisdiction.
20.The Respondents’ Response adopts a diametrically opposite view to that of the Claimants on the circumstances informing the disqualification of 13 teams from the Garissa County FKF League. The Respondents particularize the reasons as to why the Claimants’ teams were excluded as follows:a.Garissa Ndogo FC, Berlin FC, Ngamia FC, Suna FC, Ghetto FC and IFRO FC are not part of or affiliated to the Football Kenya Federation Garissa branch;b.United Boys FC, Black Stars FC, Gargaar FC and Wamo FC were relegated from the league; and thatc.White Stars FC, Red Eagle FC, Taqwa FC did not register for the 2023/2024 season.
21.Indeed, two out of the 13 officials listed as Claimants in the suit; Abdiwahab Ali, the Chairman of Taqwa Football Club and Said Ahmed, the Chairman of White Stars Football Club, depone that their signatures were forged and that they were neither consulted and/or gave approval to be represented by the Claimants in this suit.
22.The said Chairmen did not apply to be struck out from this matter and instead gave witness statements dated 5th June 2024 in furtherance of the Respondents’ Case.
23.In its totality, the Respondents’ Response asks this Tribunal to dismiss the Statement of Claim with costs.
Issues
24.The Tribunal has taken the liberty to frame the following issue for determination after discerning the Statement of Claim, Preliminary Objection, the Respondents’ Response, oral and written submissions filed and presented before it. The issue is:1.Whether the Tribunal has Jurisdiction to hear this matter as presently framed;2.Whether the Statement of Claim is merited.
Analysis
1. Whether the Tribunal has Jurisdiction to hear this matter as presently framed
25.The issue of Jurisdiction is central to the Statement of Claim. It is therefore important to set out from the offset where the Sports Disputes Tribunal derives its jurisdiction from.
26.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:Any other court or local tribunal as may be established by an Act of Parliament …
27.As a specialized Court, the Tribunal has members having qualifications in the legal field and also experience and knowledge of the subject matter of sports. Consequently the Tribunal exercises those judicial powers flowing from both the people’s constitutional power and legislative authority.
28.Section 58 of the Sports Act No 25 of 2013 broadly highlights the jurisdiction of the Sports Disputes Tribunal in the following terms: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 Appeals from decisions of the Registrar under this Act.
29.The locus classicus on the subject of jurisdiction, is the case of; Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989) which held:“Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction….Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.”
30.The Tribunal has severally set out how the issue of its jurisdiction being set out in the law is to be construed in light of the provisions of the Sports Act. In the case of Micheal Kibunja v Veterinary Laboratory Sports Club and 2 Others SDT E 021 of 2023 where the issue of Jurisdiction was raised, the Tribunal pronounced itself as such:“The registration of the Sports Club such as the 1st Respondent herein was mentioned under Section 46(2)(a) of the Sports Act which provides as follows:46.Registration of Sports Organisations(1)A body shall not operate as a sports organisation unless its registered under this Act(2)The Registrar shall register sports organisations as either -(a)Sports ClubConsequent to this quoted subsection, Section 46 (5) of the Sports Act makes is obligatory for Sports Organisations to submit a constitution to the Registrar of Sports prior to registration which shall contain a basic minimum, the provisions set out in Second Schedule to the Sports Act. The Second Schedule then goes ahead to list other (f) that:The Constitution of body seeking registration as a Sports Organisation shall provide that (f) subscription to Court of Arbitration of Sports policies and rules which conform with requirements set out in Sports Dispute Tribunal policy and rules for sports dispute resolution.Therefore, the prevailing assumption is that a Sports Organisation’s constitution can only be lawfully constituted if it subscribes to the jurisdiction of the Tribunal. In the event that it does not, it shall be in violation of statutory regulations which shall prevail over its omission.Such sports organisations can then not turn and use the same omission as a shield when it is a violation. The Sports Act is interpreted as allowing internal disputes resolution mechanisms which then should flow into the Sports Disputes Tribunal at the national level and to the Court of Arbitration of Sports or such other international affiliate of the sport at the international level.”
31.Premised on the foregoing the Tribunal finds that it is not necessary for clubs to donate jurisdiction to the Tribunal through agreements as the Tribunal is clothed with the requisite jurisdiction under Section 58(b) of the Sports Act No 25 of 2013 as read with the other provisions of the Sports Act to hear and determine this dispute.
32.In addition, the other assault by the Claimants to the Preliminary Objection is that it is grounded on points of fact and not law.
33.On what a point of law is, we considered the celebrated case of Mukisa Biscuits Manufacturing Co Ltd v. West End Distributors (1969) EA 696 which stated:“…a preliminary objection consists of a point of law which has been pleaded or which raises by clear implication out of the pleadings and which if granted as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or plea of limitation or submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration….it raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” (Emphasis Ours).
34.We also considered the case of Oraro v Mbaja [2005] eKLR where the Court held:As already remarked, anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.
35.It is not in dispute that the letter dated 24th February 2024 which is relied upon by the Claimants to bring about a factual basis for the Preliminary Objection is addressed to the Garissa FKF branch and NEC Committees and not the FKF Leagues and Competitions Committee.
36.The letter is not a protest and/or appeal to relegation of the 4 Teams. The letter has no proof of receipt and there is no evidence on the steps the Claimants took to make sure that their dispute was properly canvassed by the FKF Leagues and Competitions Committee other than relying on the said letter. The letter is just that: a letter.
37.We therefore respectfully disagree with the Claimants and find that the grounds of the Preliminary Objection meet the Mukisa Biscuits test as they are pure points of law and not of fact.
38.This Tribunal is, in addition, minded to find out whether the FKF Constitution, which is the fulcrum of the Respondents’ Preliminary Objection, is binding on all of the Parties herein.
39.Article 14 of the FKF Constitution states:Members’ Obligations1.The Members of FKF have the following obligations:d.To pay their membership subscriptions;
40.Article 10.3. of the FKF Constitution states:Loss of membership does not relieve the Member from its financial obligations towards FKF or other members of FKF, but leads to the loss of all rights in relation to FKF
41.Garissa Ndogo FC, Berlin FC, Ngamia FC, Suna FC, Ghetto FC and IFRO FC are not current members in good standing of the Garissa County FKF League in the reading of the FKF Constitution. These teams have never written or applied to be part of the League and competitions organized by the Football Kenya Federation Garissa branch.
42.White Stars FC, Red Eagle FC and Taqwa FC are not registered with the Garissa County FKF to take part in the 2023/2024 season.
43.Garissa Ndogo FC, Berlin FC, Ngamia FC, Suna FC, Ghetto FC, IFRO FC, White Stars FC, Red Eagle FC and Taqwa FC (hereinafter the 9 Teams) have not complied with Article 14 of the FKF Constitution. Because of their non compliance, it cannot therefore be said that the dispute resolution mechanism stipulated in Article 48(3) of the FKF Constitution (2017) and as read together with Rule 2.2.2 and 2.2.3 of the Rules and Regulations Governing Kenyan Football (2019) applies to them.
44.The 9 teams are not bound to exhaust, as they are being called upon to do by the Respondents, avenues of a Constitution that they are not currently subscribed to and compliant with.
45.We find that only United Boys FC, Black Stars FC, Gargaar FC and Wamo FC (hereinafter “the 4 Teams”) are bound by the FKF Constitution as they are in all intents and purposes, members of the FKF Garissa League that were relegated in various seasons of the said League.
46.On whether the Claimants, have exhausted all avenues available to them in the said Constitution and if so does the Preliminary Objection have merit, it is necessary for the Tribunal to consider the arguments made under this heading.Black’s Law Dictionary 10th Edition, defines the doctrine of exhaustion as follows: –“Exhaustion of remedies: The doctrine that, if an administrative remedy is provided by statute, a claimant must seek relief first from the administrative body before judicial relief is available. The Doctrine’s purpose is to maintain comity between the courts and administrative agencies and to ensure that courts will not be burdened by cases in which juridical relief is unnecessary.”
47.The Tribunal also finds guidance in the decision by the Court of Appeal decision in Geoffrey Muthinja & Another vs. Samuel Muguna Henry & 1756 others (2015) eKLR, where the learned judges observed as follows:-“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”
48.Rule 10.2 of the Rules and Regulations Governing Kenyan Football (2019) (hereinafter the Rules) provides the manner of lodging a Protest. It states:10. 2.Protests 10.2.1. Any team directly involved in a game may lodge a protest with FKF in respect of any game played under the auspices of FKF, if the protesting club participated in the same game.10. 2.3.A written Protest, as required by these Rules must be lodged with the FKF within forty eight (48) hours (these hours apply to working days and will not run on weekends or public holidays) after the game. 10.2.4. The written Protest, referred to in 10.2.3 above, must set out the full facts on which it is based and must refer to the Rule(s) allegedly contravened by the offending party.
49.Rule 10.3.2 of the Rules provides the manner of lodging an Appeal. It states:An appeal must state the full reasons for the appeal and specify the grounds and rules on which it is based. An appeal will be adjudicated only on the grounds or rules specified. An appeal must be based on one or more of the following grounds:i.one or more rules other than the Laws of the Game were seriously violated during or immediately before or after a match;ii.a committee or other relevant authority made a decision which was not justified by the facts of the case;iii.a committee or other relevant authority decided on an inappropriate penalty or compensation; oriv.a committee or other relevant authority acted contrary to the rules or constitution.
50.From the record it is also undisputed that the 4 Teams have never protested their relegation. The Statement of Claim is not an Appeal or Protest against a Decision of any of the FKF Committees. Even the orders sought in the Statement of Claim do not have a semblance of an appeal or protest against the relegation of the 4 Teams.
51.Whilst the 4 Teams have also not tendered any evidence whatsoever to show that they have ever taken a step to appeal their relegation in accordance with Rule 10.3.4.1 of the Rules which states:10. 3.4.1.An appeal must be lodged in writing within seventy-two (72) hours of receipt of the written disciplinary hearing decision.10. 3.4.2.The Appellant must lodge all relevant documents including grounds for appeal with the prescribed KES 100,000 (One hundred thousand Kenyan Shillings) minimum appeals fee and any other extra fees within the seventy-two (72) hours.10. 3.4.3.It is the duty of the Appellant to serve all parties with the relevant documentation.10. 3.4.4.It is the duty of the Appellant to ensure that the transcript or the minutes of the disciplinary hearing are available before the matter is set down.10. 3.4.5.The Appellant is liable for the costs of the transcript or the minutes.10.3.4.6.If further investigations are needed, they must be completed and a decision made within thirty (30) days after the date the appeal was received by the FKF.
52.Whilst considering and analyzing these provisions on Internal Dispute Resolution Mechanisms, the Tribunal is also alive to the fact that it is necessary for anyoineanyone raising the fact that such bodies are provided for to prove that they exist and indeed go to steps such as naming who the officials are, when they were appointed, and the readiness and preparedness to hear the disputes.
53.Short of this, the Tribunal is also minded to be guided by the decision in Alfred Koilege v Boaz Kaino and 2 Others SDT E053 of 2024 where it was stated:It is also necessary for us to state that mere claims that there is an internal dispute resolution mechanism is not always a bar to a superior remedy especially where the alternate remedy that is touted by a person claiming non exhaustion of the remedy has no evidence to support the same. There are certain reliefs that a Petitioner may wish to obtain such as Injunctive Relief as demonstrated under paragraph 5(2) of this Decision where the Petitioner sought such orders that haven’t been demonstrated to have been a remedy under the Football Kenya Federation constitution or the Rules Governing Kenyan football.
54.It has not been demonstrated that the said Internal Dispute Resolution Mechanism would have afforded the Claimants the requisite remedied including stopping the league until their complaints were heard. It has also not beebeen adequately demonstrated what the existing personnel were in the Internal Dispute Resolution Mechanism. We therefore find that the Preliminary Objection is not merited.
2. Is the Statement of Claim merited?
55.We now consider whether the Claimants have proved their case as laid out in the Statement of Claim.
56.The Club Chairman of Taqwa FC, Said Ahmed, stated that he did not authorize Abdirahman Mohamed to testify on behalf of Taqwa FC and that he did not register for the current season because of lack of finances.
57.The Club Chairman of White Stars FC, Abdiwahab Ali, equally stated that he had never authorized, Abdirahman Mohamed, to sign on behalf of the club and that the club did not register for the current season due to lack of players. Abdiwahab Ali further stated that he did not know Abdirahman Mohamed.
58.Abdirahman Mohamed did not tender any document authorizing him to sign on behalf of either Said Ahmed, Abdiwahab Ali. This is what was stated in the case; Caliph Properties Limited –vs- Barbel Sharma & Another [2015] eKLR, where the Court stated:“Secondly, the injunction sought is an equitable remedy. He that comes to equity must come with clean hands and must also do equity. The conduct of the Plaintiff in this case betrays him. It does not endear him to equitable remedies. … He who comes to equity must fulfill all or substantially all his outstanding obligations before insisting on his rights. The Plaintiff has not done that. Consequently he has not done equity.”
59.The Tribunal is less inclined to believe the assertions by Abdirahman Mohamed and his testimony on behalf of the other Claimants, which we find has little to no probative value and the net effect is that it hurts the Claimants case.
60.Garissa Ndogo FC, Berlin FC, Ngamia FC, Suna FC, Ghetto FC and IFRO FC have vociferously denied having any affiliation to the Garissa County Football Association. They have not however tendered evidence to show that they have ever made a formal application to register with the Garissa County FKF League.
61.Red Eagle FC is also not registered to take part in the Garissa County FKF League yet it insists that it wants to take part in the said League.
62.The Rules stipulate that:2.4.1.Any league and /or competition shall be of a number prescribed by the FKF National Ex- ecutive Committee as provided for by the FKF Constitution and shall not have less than five (5) teams and not more than twenty (20) teams.
63.Even if we were inclined to allow the Claimants into the Garissa FKF League, and we are not, we find no formula within which we can interfere with the League without disenfranchising other teams and stakeholders of the Garissa FKF League.
64.The Tribunal has also considered the following:i.The Respondents provided explanations for the exclusion of the 13 teams, citing reasons such as relegation and failure to register for the new season.ii.While the Claimants dispute these reasons, they did not present compelling evidence to refute them. The letter dated February 24, 2024, addressed to the NEC North Eastern, does not conclusively prove proper internal procedures were followed or that the teams were unfairly excluded.iii.The claimants’ allegations of fabricated league fixtures and standings were not sufficiently substantiated. While some inconsistencies were pointed out, these alone do not prove that no league matches took place or that teams were arbitrarily excluded.iv.The Respondents presented witnesses who testified that their teams chose not to participate in the 2023/2024 seasons due to various reasons, contradicting the Claimants’ narrative of unfair exclusion.v.The Claimants failed to provide clear evidence of their attempts to register for the 2023/2024 season or their compliance with league requirements.vi.While there may be inconsistencies in some of the evidence presented by the Respondents, the burden of proof remains on the Claimants to prove their case. They have not met this burden by demonstrating that they were excluded without lawful cause or due process.vii.This Tribunal recognizes the importance of fair participation in sports leagues. However, it cannot substitute its judgment for that of league organisers in the absence of clear evidence of procedural unfairness or arbitrary decision-making.
65.Lord Diplock in Cheall v Association of Professional Executive Clerical and Computer Staff [1983] 1 All ER stated that:“This rule of construction, which is paralleled by the rule of law that a contracting party cannot rely upon an event brought about by his own breach of contract……. as “A man cannot be permitted to take advantage of his own wrong.”
66.Equally, in the case of Abu Chiaba Mohammed v Mohammed Bwana Bakari & 2 Others [2005] eKLR it was held that:“………no man can be allowed to rely on his own wrong to defeat the otherwise valid claim of another man……he cannot be allowed to take advantage of his wrong……..the law will not and cannot permit such a party to rely on his own wrong to defeat an otherwise valid petition.”
67.It therefore follows that the Statement of Claim and testimony thereto is unsubstantiated and lacks merit.
Conclusion
68.Having analyzed the issue as above, the Tribunal pronounces itself and makes orders as follows:b.With regard to the Preliminary Objection raised by the Respondents arguing that this Tribunal lacks jurisdiction to hear and determine this matter as the claimants failed to exhaust internal dispute resolution mechanisms as required by the FKF Constitution, this Tribunal finds that while the FKF Constitution does provide for internal dispute resolution processes, the Sports Act grants the Tribunal broad jurisdiction to hear sports-related disputes. The right of access to justice, as provided for in an Act of Parliament, cannot be overridden by the constitution of a sports organisation. Therefore, the Preliminary Objection is dismissed.c.On the Substantive Claim: The Claimants allege they were excluded from participating in the FKF Garissa County Branch League for the 2023/2024 season “without any lawful cause, due procedure, process, nor given a right to be heard”. However, after examining the evidence and arguments presented, this Tribunal finds that the Claimants have failed oto meet their burden of proof in establishing this claim.d.The Claimants, as the party making affirmative allegations, bear the burden of proving their case on a balance of probability. They have not provided sufficient evidence to demonstrate that their exclusion was unlawful or procedurally unfair.e.Consequently, the Statement of Claim lacks merit and is hereby dismissed.f.Each Party shall bear its own costs.g.Parties have a right of appeal in accordance with Rule 26 of the Sports Disputes Tribunal Rules.h.Orders accordingly.
DATED AND DELIVERED AT NAIROBI THIS 13TH DAY OF AUGUST, 2024BENARD MURUNGA WAFULA - PANEL CHAIRPERSONGABRIEL OUKO - MEMBER ALLAN OWINYI - MEMBER
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