Aluochier v Kenya Swimming Federation & 10 others (Tribunal Case E046 of 2023) [2024] KESDT 1212 (KLR) (27 August 2024) (Ruling)

Citation
Aluochier v Kenya Swimming Federation & 10 others [2024] KESDT 1212 (KLR)
Media Neutral Citation
[2024] KESDT 1212 (KLR)
Court
Sports Disputes Tribunal
Outcome
Allowed
Case number
Tribunal Case E046 of 2023
Judges
John M Ohaga, E. G. Kiplagat, MN Kimani
Judgment date
27 August 2024
Language
English
Type
Judgment
Original source file
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1.The Appellant is a member of the public, exercising his rights pursuant to Section 46(6) of the Sports Act, 2013, providing that all national sports organisations registered under the Act shall be open to the public in their leadership, activities and membership.
2.The 1st Respondent is a national sports organization recognized as the national aquatics sports association in Kenya.
3.The 2nd to 10th Respondents are the elected officials of the 1st Respondent’s executive board.
4.The 11th Respondent is the Sports Registrar established under Section 45 of the Sports Act, 2013.
Facts
5.While the Tribunal’s interaction with this matter began on 5th November 2023, the history of this dispute commenced two years prior.
6.On 18th March 2021, two petitioners, Margaret Ndung’u-Mwasha and Conrad Dermot Biltcliffe Thorpe approached the High Court through a petition dated 18th March 2021 (‘the petition’) alleging irregularities and illegalities during the promulgation of a constitution for Kenya Swimming Federation (‘KSF’) passed on 9th January 2021. They alleged that the making of the constitution had no participation from the stakeholders of KSF and had provisions that were contrary to the Constitution of Kenya and the Sports Act. They also alleged irregularities and illegalities of elections planned to take place on 20th March 2021 further to the impugned provisions of the constitution. The petition sought, among other things, a declaration that the constitution promulgated on 9th January 2021 was in contravention of the Constitution of Kenya and a permanent injunction restraining the 1st Respondent and its officials, agents, employees or any person acting on its behalf from inviting applications for election to the 1st Respondent’s Executive Committee or holding elections for the same or in any way making changes to the leadership of the 1st Respondent according to the impugned constitution or without following due process.
5.The petition was accompanied by an application for interim injunction restraining KSF from planning or holding elections pending the hearing and determination of the petition. The High Court issued orders on 19th March 2021, granting an interim injunction against KSF and its agents.
6.On 18th October 2021, the 1st and 2nd interested parties in Petition E088 of 2021 approached the court to have the interim injunction reviewed and set aside.
7.The High Court ruled on the application on 1st February 2022, dismissing it in its entirety. The court stated that the claim that minors’ rights were being violated on account of the swimming activities coming to a stop were unsubstantiated and that there was no error on the face of the record that would warrant a review or setting aside.
8.In June 2022, World Aquatics (‘FINA’) appointed a Stabilization Committee to run all day-to-day operations of the KSF, citing numerous FINA Bureau violations on KSF’s part, especially the organisations continued failure to hold elections. The Stabilization Committee began sending out notices in June 2023 in preparation for elections to KSF’s board, despite the injunction issued by the High Court.
9.The petitioners filed an application seeking to cite members of the Stabilization Committee for contempt of court (‘the contempt application’) at the High Court dated 21st June 2023. The application specifically cited Moses B Mwase, Jace Naidoo, Francis Mutuku and Michael Otieno.. This application was based on the letter dated 2nd June 2023 which had invited members to apply for and nominate delegates for elections to KSF’s executive board.
10.KSF went ahead to hold elections on 7th October 2023 (‘the elections’), appointing the 2nd to 10th Respondents to its executive board.
11.Aggrieved by the results of the elections, the Appellant approached this Tribunal.
B. Pleadings And Preliminaries:
14.Mr. Isaac Alouch Polo Aluochier filed a Notice of Appeal before this Tribunal on 5th November 2023. In the appeal brief, the Appellant prayed:i.That the Tribunal declares the election results to be null, void and invalid, in total, and that the 2nd to the 10th Respondents are not officials of the 1st Respondent as a consequence of the declaration made on 7th October 2023 so declaring them to be officials of the 1st Respondent, and for the 1st to 10th Respondents to pay the Appellants costs
14.Such prayer was based on the following grounds:a.The 1st Respondent’s executive board elections were held, and the election results declared, in contravention of a then existing and still existing, injunctive order of the High Court dated 19th March 2021, issued in High Court Petition No. e088 of 2021, Margaret Mwasha-Ndung’u & another v Kenya Swimming Federation & 3 othersb.The 1st Respondent’s executive board elections were not conducted in a manner compliant with paragraphs (a), (d) and (g) of the Second Schedule of the Sports Act, 2013 as read together with section 46(5) of the said Act.c.The 1st Respondent’s executive board elections were not conducted in a manner compliant with the mandatory provisions of regulation 20 of the Sports Registrar’s Regulations, 2016
16.The 1st to 10th Respondents in turn filed a preliminary objection dated 15th November 2023 asking this Tribunal to dismiss the appeal, alleging that the facts and issues in this matter were before the High Court in the petition and the contempt application. The 5th Respondent filed a replying affidavit on 30th November 2023 in support of this preliminary objection, in which he alleged that all the grounds of appeal before this Tribunal were issues that were substantially before the High Court and as such were sub judice.
17.The 11th Respondent on her part filed a Replying Affidavit dated 19th January 2024 in which she deponed that she objected to the elections held by the Stabilization Committee and prayed that the election results be declared invalid. The Appellant admitted that there was no cause of action against the 11th Respondent, but that she is a party to the suit only because of the legal requirement for her office to participate in elections of national sports organisations. To the Appellant, this meant that she could assist this Tribunal to establish facts that she may be privy to in that by dint of the office she holds.
18.The Panel ruled on the preliminary objection raised by the 1st to 10th Respondents on 20th February 2024 and dismissed the preliminary objection as it invited this Tribunal to probe issues of fact instead of being based on a pure point of law.
19.The 1st to 10th Respondents then lodged an application for stay of proceedings dated 25th March 2024 based on the same issue of sub judice. In a ruling dated 28th May 2024, the Panel found that the subject matter of the petition and application before the High Court was different from that of this appeal and dismissed the application for stay.
20.Having done so, the matter proceeded to hearing.
C. Parties’ Submissions
21.The 1st to 10th Respondents filed submissions on 5th December 2023 wherein they urged this Tribunal to find that this appeal and the contempt application arise from the same facts and challenge the same outcome of the facts in issue and the decision of the High Court will be binding on both the issues raised in that application and this present appeal. Additionally, they buttressed their position by arguing that paragraphs 32, 39, 47 and 48 of the petition addressed the same issues as the second and third grounds of appeal before this Tribunal. They relied on Republic vs Paul Kihara Kariuki, Attorney General & 2 others Ex-parte Law Society of Kenya (2020)eKLR to state various propositions, including that it is abuse of court process where two actions are commenced, the second asking for a relief which may have been obtained in the first.
22.The Appellant filed submissions on 10th July 2024, where he argued that the only issue raised in the 1st to 10th Respondents’ submissions was whether the granting of orders or any decision in the petition will operate as res judicata in this appeal. His position was that it would not, as it was highly unlikely that the petition would be determined before this Tribunal rendered a decision. He pointed out that the next activity in the petition would be highlighting of submissions scheduled to take place on 24th September 2024. Furthermore, the Appellant argued that the issues of res judicata had already been considered by this Tribunal in determining the preliminary objection and the application for stay of proceedings. He reasoned that arguments on these issues could not be reopened unless the Respondents requested a review of them. Therefore, the only remaining issues for the Tribunal to apply itself to would be the grounds of his appeal, the facts of which he noted had not been contested by any Respondent.
D. Issues For DeterminationI. Whether the matter is sub-judice
23.The 1st to 10th Respondents’ submissions allege that the matter is sub-judice, on account of the petition before the High Court and the accompanying contempt application.
24.It does not escape the attention of this Tribunal that the 1st to 10th Respondents have raised the issue of sub-judice in an unsuccessful preliminary objection and an unsuccessful stay of proceedings application. The preliminary objection was dismissed as it invited the Panel to probe issues of fact, which is antithetical to the nature of preliminary objections as conceptualised by Mukisa Biscuit Manufacturing Co Ltd vs West End Distributors Ltd (1969) EA 696.
25.When the 1st to 10th Respondents filed an application to stay these proceedings on account of the same alleged sub-judice, this Tribunal considered this issue, giving the parties ample opportunity to ventilate their respective positions. The 1st to 10th Respondents filed their submissions dated 15th April 2024 and the Appellant filed his submissions on 17th April 2024. Having considered both parties’ averments and canvassing the issue of sub-judice at length, the Panel dismissed the application for stay on 28th May 2024.
26.This Tribunal has therefore already deliberated on the question of sub-judice in these proceedings and determined it. Considering the issue afresh in its final judgement would be tantamount to having this Tribunal sit on appeal over its own decision and re-open matters that are res judicata.
27.We note that Section 7 of the Civil Procedure Act provides:No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.
23.In Njue Ngai v Ephantus Njiru Ngai & another [2016] eKLR, the Court of Appeal had the following to say about res judicata:‘What is res judicata and when does it apply? The Latin of it is simply “a thing adjudicated”. But it has overtime received extensive judicial interpretation in various jurisdictions of the globe which we shall not be tempted to explore here. Suffice it to adopt the definition in Black’s Law Dictionary, Ninth edition, as:(i)An issue that has been definitively settled by judicial decision;(ii)An affirmative defence barring the same parties from litigating a second lawsuit on the same claim or any other claim arising from the same transaction, or series of transactions and that could have been –but was not- raised in the first suit.’
23.The Court went further to address the question of whether matters settled in interlocutory proceedings can be considered res judicata and found as follows: ‘An issue may then arise from that section as to whether interlocutory proceedings, appeals or civil proceedings other than suits commenced by plaint are covered under the section or under the general principle of res judicata. The Uhuru Highway Development Limited v Central Bank of Kenya & 2 others [1996] eKLR, (supra) which is relied on by the appellant, extensively discussed the issue and particularly whether the principle of res judicata applied to an application heard and determined in the same suit. In other words, whether a matter of interlocutory nature decided in one suit can be subject of another similar application in the same suit. The Court held that the principle was applicable and that Section 7 was but an aspect of the general principle, stating thus:“..there must be an end to applications of similar nature; that is to say further, wider principles of res judicata apply to applications within the suit. If that was not the intention, we can imagine that the courts could and would be inundated by new applications filed after the original one was dismissed. There must be an end to interlocutory applications as much as there ought to be an end to litigation. It is this precise problem that section 89 of our Civil Procedure Act caters for.The word “suit” is defined in section 2 of our Civil Procedure Act as:“Means all civil proceedings commenced in a any manner prescribed.”Also the word “prescribed” has been defined to mean “prescribed by rules” and “rules” are defined to mean “rules and forms made by the Rules Committee to regulate the procedure of the courts”. What stands out as most important here is that section 89 of our Civil Procedure Act makes it mandatory to follow the procedure provided in the Act makes it mandatory to follow the procedure provided in the Act to all proceedings in any Court of Civil jurisdiction. That can only mean that interlocutory proceedings come within the purview of the word “suit” for the purpose of the issue of res judicata by virtue of section 89 of our Civil Procedure Act”.…….. “We have no hesitation whatsoever in saying that the general principles of res judicata cannot be limited by section 7 of the Civil Procedure Act and that the section (Section 7) is not exhaustive.”’ (Emphasis theirs)
30.From the foregoing, it is clear that once the issue of sub judice was dispensed with in the ruling of 28th May 2024, it became res judicata.
31.It follows then that this Tribunal is functus officio in that regard. The edicts of the Supreme Court in Odinga v Independent Electoral & Boundaries Commission & 3 others (Petition 5, 4 & 3 of 2013) [2013] KESC 8 (KLR) (Civ) (24 October 2013) (Ruling) state aptly that:‘The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.’ (Emphasis theirs)
32.Accordingly, we find no need to revisit the issue of sub judice.
II. Whether the 1st Respondent’s election results are null, void and invalid in total
33.In the appeal brief dated 5th November 2023, the Appellant asked this Tribunal to annul the election results on three grounds:i.The 1st Respondent’s executive board elections were held and the results declared in contravention of a then existing and still existing injunctive order of the High Courtii.The elections were not compliant with paragraphs (a), (d) and (g) of the Second Schedule of the Sports Act 2013 as read with Section 46(5) of the sameiii.The elections were not compliant with mandatory provisions of regulation 20 of the Sport’s Registrar’s Regulations 2016 34. These grounds are addressed in turn as follows:
i. Whether the elections are invalid due to the existing injunctive order
35.Article 2(1) of the Constitution declares it the supreme law of the land that binds all persons and all state organs at both levels of government. Article 159 of the Constitution of Kenya vests judicial authority in the courts to exercise the sovereign power of the people. Section 3A of the Civil Procedure Act buttresses the power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court. Furthermore, Section 3 of the Judicature Act vests jurisdiction in the courts to exercise their power in conformity with the Constitution of Kenya and all other written laws.
36.The High Court in Trusted Society of Human Rights Alliance v Cabinet Secretary for Devolution and Planning & 3 others [2017] eKLR found:‘It cannot be disputed that an order of the court has to be respected by the parties who are bound by it. Therefore every effort must be made to implement the order of the court and not to disobey the same. It is not up to that party to choose whether to comply or not to comply with such an order. The order must be complied with in totality, in all circumstances by the party concerned, subject to the party’s right to challenge the order in issue, in such a lawful way as the law permits.The purpose of this is simple. It is to protect the sanctity of the courts of judicature, which is well envisaged in the Constitution; sustain the confidence in the third arm of government so that all the people who feel aggrieved by government, its agencies or private persons can have a place to run to for a neutral determination. To disregard court orders therefore, among others in my view, is by implication, to set the precedent that people should not believe in the courts. This is wrong because it puts persons in our country on a collision course with no remedy thus creating a medium in which they descend into anarchy by resorting to taking the law into their hands. This is in utter disregard of the democratic and good governance principles and values enshrined in our Constitution.It is trite that the court will not condone or enforce an illegality.’ I think it is important to bear in mind that Article 259 (1) of the constitution enjoins the court to interpret the constitution in a manner that promotes its purposes, values and principles, advances the rule of law, human rights and fundamental freedoms in the bill of rights and in a manner that contributes to good governance. This court is obliged under Article 159 (2) (e) of the constitution to protect and promote the purposes and principles of the constitution. Also, the constitution should be given a purposive, liberal interpretation. I stand guided by the clear provisions of the constitution which is the supreme law of the land which binds all persons and all state organs.’ (Emphasis ours)
37.The High Court in Econet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another [2005] 1 KLR 828 cited with approval the case of Gulabchand Popatlal Shah & Another Civil Application No. 39 Of 1990, (unreported), where the Court of Appeal stated:‘It is essential for the maintenance of the Rule of Law and good order that the authority and dignity of our courts are upheld at all times.’
38.We do not think it bears much reiteration that orders of the High Court given in the exercise of its judicial authority bind all persons to which it is directed. The Appellant provided uncontroverted proof that there was an injunctive order from the High Court that barred the elections, providing inter alia:‘That temporary order of injunction be and is hereby issued restraining the 1st Respondent and or its officials and or its agents and or its employees or anyone purporting to act on its behalf from inviting applications for election to the Respondent’s executive board and or conducting election for members of the Respondent’s Executive Board and or any way purporting to effect changes in the leadership of Respondent Executive Board pending hearing and determination of the instant Application’
39.There has been no evidence submitted before this Tribunal that the order was set aside, reviewed, appealed, or was otherwise not in force when the various notices for the planning and execution of the elections were sent out in June 2023 or when the elections took place in October 2023.
40.As such, we find that the 1st Respondent, being bound by the orders of the High Court orders, had no capacity to hold elections for its executive board and that the 2nd to 10th Respondents could not then have been validly and lawfully elected.
ii. Whether the elections were compliant with the Sports Act and in particular, paragraphs (a), (d) and (g) of the Second Schedule as read with Section 46(5) of the Sports Act
41.Section 46(5) of the Sports Act provides:A constitution submitted under subsection (3) shall contain, as a basic minimum, the provisions set out in the Second Schedule.
42.The relevant provisions of the Second Schedule are as follows: Paragraph (a) of the Second Schedule;elections of officials and athlete’s representatives at the national, branch and sub-branch levels shall be done directly by club members; Paragraph (d) of the Second Schedule;elections shall be held in accordance with the general principles for the electoral system as stipulated in Article 81 of the Constitution; Paragraph (g) of the Second Schedule;that the election of officials at national, branch and sub-branch levels shall be done directly and only registered club members are entitled to vote at those elections;
43.The import of Section 46(5) is that these provisions are mandatory and cannot be varied. Therefore, the provisions of the Second Schedule operate as the rules applicable to elections held by a national sports organisation.
44.The Second Schedule of the Sports Act also makes reference to the general principles of the electoral system as provided for in Article 81 of theConstitution as follows;The electoral system shall comply with the following principles—a.freedom of citizens to exercise their political rights under Article 38;b.not more than two-thirds of the members of elective public bodies shall be of the same gender;c.fair representation of persons with disabilities;d.universal suffrage based on the aspiration for fair representation and equality of vote; ande.free and fair elections, which are—i.by secret ballot;ii.free from violence, intimidation, improper influence or corruption;iii.conducted by an independent body;iv.transparent; andv.administered in an impartial, neutral, efficient, accurate and accountable manner.
45.To interpret the provisions of the Sports Act, we refer to the judgement of Supreme Court in Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 others (Petition 1 of 2015) [2016] KESC 2 (KLR) (26 April 2016) (Judgment) where it clarified the different methods of election available in the Constitution:‘It is clear to us that the Constitution provides for two modes of ‘election’. The first is election in the conventional sense, of universal suffrage; the second is ‘election’ by way of nomination, through the party list. It follows from such a conception of the electoral process, that any contest to an election, whatever its manifestation, is to be by way of ‘election petition’.’
46.The mode of election provided for in the Sports Act is as set out under Rule 20 of the Sports Registrar’s Rules which provides that “An organization shall hold an election in accordance with the Rules provided in its constitution”.
47.The Appellant, however, relies on the Second Schedule to the Sports Act for the proposition that all eligible voters have the right to vote directly for elected officials. Eligibility in this context is premised on voters being registered club members, as per paragraph (g) of the Second Schedule. Thus, any registered club member was eligible to vote in the elections for the 1st Respondent’s executive board.
48.The Appellant alleges that contrary to the provision in the Second Schedule, the elections of the 2nd to 10th Respondents were conducted through delegates.
49.In support, the Appellant submits written protests taken at the meeting held on 7th October 2023 where the delegates signed the roll-call and three parties wrote on the same paper that they objected to the elections.
50.Furthermore, the 5th Respondent’s Replying Affidavit dated 30th November 2023 attached evidence vide the annexure marked CM-1, which contains further evidence of the manner in which the elections took place.
51.We make reference to the letter dated 2nd June 2023 from the Stabilization Committee signed by the Secretary of the same of the inviting club members to ‘submit names of only 2 (two) delegates each’ for the upcoming elections to the executive board, reaffirming that ‘clubs are eligible to nominate delegates’. This letter was accompanied by election guidelines which provided in clause 6 for eligible voters, limiting them to clubs, counties, athletes’ representatives and members of the World Aquatics or Africa Aquatics.
52.We also make reference to the letter dated 5th June 2023 from the Stabilization Committee signed by its Secretary, inviting counties and clubs to ‘submit names of only 2 (two) delegates each’ and further that clubs are ‘eligible to nominate delegates’ in order to ‘exercise their voting rights’. It states in the last paragraph that the Chairperson of clubs and counties should confirm attendance and indicate in writing ‘two delegates… the voting and the non-voting delegate)’.
53.The contest therefore is between the provisions of the Second Schedule to the Act and the Sports Registrar’s Regulations, 2016.
54.We are unable to conclude that the elections were held in contravention of the of Section 46(5) of the Sports Act, as read with paragraphs (a), (d), and (g) of the Second Schedule or that the results could be invalidated on this ground.
iii. The elections were not compliant with mandatory provisions of Regulation 20 of the Sport’s Registrar’s Regulations 2016
55.The Appellant also claims that the elections were held in contravention of Regulations 20(2) (a), (b), (d), (e), 20(3), 20(4) and 20(5) of the Sports Registrar’s Regulations.
56.For context, Regulation 20(1) reads ‘an organization shall hold election in accordance with the Rules provided in its constitution’ and Regulation 20(2) then provides ‘notwithstanding paragraph (1), a sports organization seeking to hold an election shall’ after which it provides for certain requirements to be met. The intention of Regulation 20(2) is therefore to ensure that notwithstanding the rules of each individual organisation’s constitution, certain criteria must be fulfilled to hold valid elections.
57.Regulation 20(2)(a) stipulates that national sports organisations must appoint independent panel of at least five members to conduct the election. The Appellant alleges that no such panel was appointed and invokes a letter from the 11th Respondent, the Sports Registrar, dated 27th October 2023 in support. In this letter, the Sports Registrar references the lack of an independent panel during the elections but she also indicates that the elections were conducted without her ‘knowledge, notice and invitation’, which would impede her ability to ascertain whether or not an independent panel conducted the elections.
58.We also note that in the letter dated 2nd June 2023 from the Stabilization Committee, election guidelines were attached which provided in clause 7 that ‘election shall be conducted under the supervision of an impartial panel of 5 (five) individuals to be approved by Members by [sic: of] the General Assembly of the Federation’ and similarly in clause 13.6 that ‘elections shall be conducted under the supervision of an impartial panel of 5 individuals nominated by the Executive Board and approved by the preceding General Assembly before the elective Assembly’.
59.We recognise that the 1st to 10th Respondents do not controvert the allegation that there was no independent panel present at the elections but nevertheless, the Appellant must still provide cogent evidence to satisfy this Tribunal of the facts it alleges. Given the lack of a detailed account from a party that was present or actively involved in the planning and execution of the elections, this Tribunal finds the submissions on the absence of an independent panel to be insufficiently unsubstantiated and vague.
60.Regulation 20(2)(b) provides sports organisations must include observers from at least one umbrella sport organization, the Ministry responsible for matters related to sports and the Registrar’s office. The Appellant alleges that none of these observers were present. Though he admits that Mr. Francis Mutuku, the Secretary General of the National Olympic Committee of Kenya, was present the Appellant claims that he was there in his capacity as a member of the Stabilization Committee and that observers must be distinct from organisers. We find that the capacity in which Mr. Mutuku attended the elections is of no consequence, as both the Registrar and the Ministry of Youth Affairs and Sports were absent. The Sports Registrar confirms her own absence in her replying affidavit dated 19th January 2024 and alludes to the non-involvement of the Ministry of Youth Affairs of Sports by which she is employed. In any event, the regulation provides for the presence of all three parties and the absence of even one is therefore a violation of the provision.
61.In the case of Richard Omwela, Chairman & 2 others (suing on behalf of the Kenya Rugby Union) v Sports Registrar [2019] eKLR, this Tribunal rendered a decision in which it stated the importance of the supervisory provisions in the Sports Act:‘The essence of the requirement for supervision of elections is to safeguard against the potential for federations being ‘hijacked’ by cliques and to ensure or allow federation’s affiliates and members who constitute its electoral congress to exercise their will freely and fairly.The various provisions both in the Schedule to the Act and the Regulations with respect to elections are well intended to safeguard and infuse good governance in Sports Federations.’
62.Regulation 20(2)(d) provides that sports organisations must inform the Registrar four weeks prior to the expected date of elections. The Registrar confirms receiving a notice on 5th June 2023 for elections scheduled for 8th July 2023 but reports voicing her concerns over the planned elections in a letter dated 21st June 2023. The impugned elections took place on 7th October 2023 but there is no proof that the 1st to 10th Respondents issued a second notice to the Registrar informing her of the same.
63.Regulation 20(2)(e) mandates that elections be conducted in an open, free, and fair environment. The Appellant contends that this standard was not met due to the existing injunctive order. We have already addressed the implications of that injunction on the election results and need not repeat those findings. Nevertheless, we agree that elections conducted in contravention of a court order cannot be said to uphold the principles of transparency, inclusivity and adherence to the rule of law that the Regulation envisions.
64.Regulation 20(3) provides that an observer and the returning officer of the elections must submit a report to the Registrar on the credibility of the elections. Regulation 20(4) mandates that the sports organisation must also notify the Registrar within 21 days of the newly elected officials. The Registrar’s letter of 27th October 2023 is proof that neither of these post-election steps were effected and the 1st to 10th Respondents provide no evidence to challenge this.
65.Regulation 20(5) empowers the Registrar to register a new office bearer if satisfied with the election process. In the letter dated 27th October 2023, the Registrar expressed concerns regarding the conduct of the elections and indicated a reluctance to register the names of the newly elected officials. This decision lies within the Registrar’s discretion and we hesitate to base the invalidity of the results solely on this provision but we nonetheless find the Registrar’s reservations compelling evidence of the irregularities that mar the elections held.
66.In sum, we find that the elections were not compliant with the mandatory provisions of the Sports Registrar’s Regulations, particularly Regulations 20(2)(b), 20(2)(d), 20(2)(e), 20(3) and 20(4).
E. Disposition
67.The issue of sub judice in these proceedings is res judicata.
68.The election results declaring the 2nd to 10th Respondents the elected officials of the 1st Respondent are invalid for being held in contravention of the court’s injunction dated 19th March 2021.
69.We are unable to find that the election results were invalid for being noncompliant with Section 46(5) of the Sports Act and the mandatory provisions of paragraphs (a), (b), (d) and (g) of the Second Schedule to the Sports Act.
70.Finally, we are satisfied that the elections did not comply with Regulations 20(2)(b). 20(2)(d), 20(2)(e), 20(3) and 20(4), which are mandatory provisions of the Sports Registrar’s Regulations, the result of which also renders these elections invalid.
71.Costs are hereby awarded to the Appellant as prayed.
DATED THIS 27TH DAY OF AUGUST 2024.Signed:John M. Ohaga, SC; CArb; FCIArb Chairperson Edmond Gichuru Kiplagat, Member Mary N. Kimani, Member
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