KCB Football Club v Maina (Tribunal Appeal E014 of 2024) [2024] KESDT 1285 (KLR) (10 September 2024) (Ruling)
Neutral citation:
[2024] KESDT 1285 (KLR)
Republic of Kenya
Tribunal Appeal E014 of 2024
E.Sifuna-Shiveka, Chair, E. G. Kiplagat & Benard Murunga Wafula, Members
September 10, 2024
Between
KCB Football Club
Appellant
and
Erick Kinuthia Maina
Respondent
(Being an appeal against the Sports Disputes Tribunal First Instance Panel (Allan Mola Owinyi, Mary Kimani and Gabriel Ouko) delivered on 19th March 2024)
Ruling
Background
1.The Appellant, KCB Football Club, filed a Notice of Appeal arising out of a decision delivered by the Sports Disputes Tribunal (‘the Tribunal’) on 19th March 2024 through a Panel that was constituted in the first instance consisting of Hon. Allan Mola Owinyi Hon. Mary Kimani and Hon. Gabriel Ouko (‘the first instance Panel’).
2.In the said decision that is impugned by the Appeal, the first instance Panel ruled in favor of the Respondent herein, making orders that;a.The Appellant breached the contract entered into with the Respondent,b.The Respondent be awarded monetary compensation against the Appellant for the sum of Kshs. 970,000/= as itemized for transfer fees and unpaid salary;c.The costs of this claim andd.Interest on II and III above at the rates as the Tribunal may decide in the event of default of payment by the Respondent.
3.The Appellant filed the memorandum of Appeal dated 19th April 2024, before the Tribunal noting that it was wholly dissatisfied with the Ruling of the First Instance Panel.
4.Consequently, the Respondent filed a Preliminary Objection to this Appeal on 14th April 2024 noting inter alia that the Sports Disputes Tribunal lacks the requisite jurisdiction to entertain the said application as it offends section 12 of the Sports Tribunal Regulations on its appellate jurisdiction.
5.It was also the Respondent’s averment that the Sports Disputes Tribunal cannot purport to exercise appellate jurisdiction on decisions issued before the same Tribunal and that the said jurisdiction can only be exercised by the High Court, hence the said Memorandum of Appeal has been filed at the wrong forum and should have been filed at the High Court.
6.On the issue of jurisdiction, the Appellant submitted that the first instance case would have been dealt with by the FKF Player Status Committee and later if any appeal was to be raised, the FKF Appeals Committee under Rule 10.3 of FKF Rules and Regulations of Kenya Football 2019 would have come into play.
7.The Appellant further submitted that by the time the Respondent filed its initial case, neither the FKF Player Status Committee nor the FKF Appeals Committee were operational. As such the Honourable Tribunal allowed the filing of the present case based on the Doctrine of Necessity.
8.The Appellant now invokes the same Doctrine of Necessity to lodge the present matter citing the absence of the FKF Appeals Committee. Literally, in the context of the subject matter, the boot is on the other foot.
9.The Appellant further submitted that it was likely to suffer prejudice should the Preliminary Objection be allowed as it would have no forum to adduce its appeal, whereas, as per Rule 26 (misnumbered as the second Rule 23) of the Sports Dispute Tribunal Rules, 2022 the High Court does not form a forum for dealing with appeals arising from the decisions of the Tribunal.
10.In its written submissions, the Appellant summarized the issues raised in its Memorandum of Appeal dated 19th April 2024 as follows:i)Whether the Honourable Tribunal had the Jurisdiction to deal with the dispute on the first instance panel as well as the present appeal?ii)Whether the Respondent discharged its burden of proof and proved his case against the Appellant to the required standard.iii)Whether there was a contract between the Appellant and the Respondent as claimed, which formed the basis of the first instance Panel's decision in favor of the Respondent.iv)Whether the Award and Order of the SDT first instance Panel was erroneous and should be set aside.v)Whether the Appellant should be awarded costs of this Appeal and the first Panel.
11.The Tribunal has taken the liberty to frame the issues for determination after discerning the Memorandum of Appeal, Preliminary Objection, and oral and written submissions filed and presented before it. The main issues at the disposition of the Tribunal are:a)Whether the Preliminary Objection is meritedb)Whether there was a contract between the Appellant and the Respondent as claimed, which formed the basis of the first instance Panel’s decision in favor of the Respondent.
Whether the Preliminary Objection is merited
12.As highlighted in the background, the Respondent filed a Preliminary Objection to this Appeal on 14th May 2024 noting that the same was premised on Rule 12 of the Sports Disputes Tribunal Regulations, and in effect challenged the jurisdiction of the Tribunal to hear this Appeal.
13.The Respondent avers that the only avenue left for appeals from dissatisfied litigants is the High Court of Kenya, in the absence of the operational capacity of the FKF Player Status Committee and the lack thereof of appellate jurisdiction of the Sports Dispute Tribunal as expressly provided for at Rule 12 of the Sports Dispute Tribunal under Regulations 2022.
14.The Respondent further submitted that the FKF Rules and the Sports Disputes Tribunal Regulations do not make provision for lodging of appeals at the Court for Arbitration for Sport for the reason that it would hamper the access to justice as per Article 48 of the Constitution of Kenya 2010, since the court is based Lausanne, Switzerland.
15.The first question that the Tribunal needs to answer is whether the grounds raised by the Preliminary Objection of the Respondent raise pure points of law. It is only after determining this question, that this Tribunal can proceed to answer the secondary question as to whether the said preliminary objection has merit and should be upheld.
16.The circumstances in which a preliminary objection may be raised were explained by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696, as follows:
17.The crux of the Preliminary objection raised by the Respondent can be summarized in the question: Can the Tribunal hear matters both at original jurisdiction and appellate jurisdiction or does this create an undesirable effect of a lack of hierarchy in appellate-level jurisdiction?
18.The jurisdiction of any court or Tribunal is a fundamental question that goes to the root of its authority to adjudicate matters brought before it. As held in the landmark case of Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989] KLR1,
19.The Tribunal is established under Section 55 of the Sports Act, with its jurisdiction stipulated under Section 58 of the same Act which includes the determination of:(a)Appeals against decisions made by national sports organizations or umbrella national sports organizations, whose rules specifically allow for appeals to be made to the Tribunal in relation to that issue including —(i)appeals against disciplinary decisions;(ii)appeals against not being selected for a Kenyan team or squad;(b)other sports-related disputes that all parties to the dispute agree to refer to the Tribunal and that the Tribunal agrees to hear; and(c)appeals from decisions of the Registrar under the Sports Act.
20.The use of the word “appeals” in this instance relates to the decisions that are not made by the Tribunal as it relates to the appeals of the decisions made by sports organizations and by the Registrar and other sports related disputes.
21.Rule 12 of the Sports Tribunal Rules 2022 goes ahead to provide further for the grounds upon which a party may file an appeal to the Tribunal in an expansion of Section 58 of the Sports Act. The grounds include:a.if the disciplinary decision on the penalty is either excessive or inappropriate;(b)in relation to decisions relating to the selection or non-selection of the appellant to a Kenyan team or squad, if the selection criteria have not been followed; or the person seeking selection was not afforded a reasonable opportunity by the National Sports Organization to satisfy the applicable selection criteria.”
22.Whereas Sections 58 and 59 of the Sports Act anticipate the Appeals to decisions, three legal instruments have expanded and expounded the matters that may be filed at the Tribunal. These are:i.The Sports Registrar Regulations 2016 which have expanded this under Regulation 20(7) to also include Election Petitions arising from matters pertaining to sports organizations.ii.The Sports Disputes Tribunal Rules 2022 which have expanded Appeals to also include Claims. The word “proceedings” under the Rules means any proceedings of the Tribunal including a claim, an appeal, other sports-related disputes, or an anti-doping rule violation application brought under these Rules and shall include alternative dispute resolution mechanisms.Indeed, the Rules then go ahead to state under Rule 6 and we quote in extenso:A person may institute a claim, other than an appeal under the (Sports) Act, by way of a statement of claim signed by the claimant or his advocate, setting out concisely the nature of the claim and the grounds upon which it is based, supported by a verifying affidavit signed by the claimant.iii.The Anti-Doping Act, 2016 is the other legislation that grants jurisdiction to the Tribunal. It is noteworthy to bring this legislation under consideration not because the instant matter is a doping rule violation but because it is in this Act that we encounter the explicit mention of the first Instance Panel and Second Instance Panel and the operation of the two Panels at the Tribunal.
23.Having said this, we also note that whereas parties cannot grant jurisdiction to the Tribunal, sports-related disputes that are mutually agreed upon by the parties to be brought before the Tribunal and accepted by the Tribunal are also considered for resolution.
24.The parties filed a consent dated 23rd April 2024 where they agreed among others that this Honorable Tribunal be pleased to expedite the hearing and determination of the Appeal arising from the Decision delivered and dated 19th March 2024.
25.It is crucial to consider the unique circumstances surrounding this dispute. The Appellant contends, and it is not disputed, that at the time of filing the initial case, neither the FKF Player Status Committee nor the FKF Appeals Committee were operational. This situation creates a potential lacuna in the dispute resolution framework for a sports-related matter.
26.It is the view of this Tribunal that where the normal dispute resolution mechanisms are non-functional, it is the responsibility of the Sports Disputes Tribunal to step in and ensure that justice is not denied to parties in sports disputes.
27.Further, it is the role of this Tribunal to fill in gaps in the sports dispute resolution landscape, as its mandate extends to ensuring that there is no vacuum in the resolution of sports disputes. Where the prescribed forums are unavailable or ineffective, it is within the Tribunal’s purview to provide a forum for fair hearing and dispute resolution.
28.The Appellant invokes that the Doctrine of Necessity should be utilised to allow this Appeal arguing that without it, there would be no forum for appeal due to the non-operation of the FKF Appeals Committee.
29.It is noteworthy that the Doctrine of Necessity is a legal principle that allows actions or decisions to be taken in exceptional circumstances even if they may not strictly adhere to the normal legal procedures or requirements. This doctrine may be invoked in situations where strict adherence to legal procedures would result in an absurd outcome of a failure of justice. This was the reasoning behind the First Instance Panel when it allowed the claim to be heard and determined by this Tribunal instead of the non-functioning FKF Player Status Committee.
30.The non-functionality of the FKF dispute resolution mechanisms at the time of the initial filing of this matter created an exceptional circumstance that warranted the Tribunal’s intervention to prevent a denial of justice. Therefore, the Tribunal finds that applying the same principle at the present Appeal is warranted and justifies the exercise of its jurisdiction upon this Appeal.
31.Internal Disputes Resolution Mechanisms exist to provide a party with a chance to have more than one bite at the cherry in Dispute Resolution. In effect, if the FKF Player Status Committee and the FKF Appeals Committee route was available, a party would have at least two chances to appeal, including to the Sports Disputes Tribunal. Having come to the Sports Disputes Tribunal under necessity, the parties would seemingly only have one bite of the cherry without an Appeal.
32.This is because the Tribunal notes that Rule 23 of the Sports Dispute Tribunal Rules, 2022, as highlighted by the Appellant, does not provide for appeals from the Tribunal’s decisions to the High Court which would have been the second chance of the bite at the cherry. This further underscores the need for the Tribunal to hear this appeal to ensure the parties have access to an appellate mechanism.
33.In this regard, the Tribunal took the step of constituting a new Panel to hear this appeal. This ensured the independence and impartiality of the appellate process, as the members of the new panel were not involved in the initial determination of the matter.
34.No prejudice will be suffered by the Respondent as the two different Panels are independent and without conflict. The Tribunal held in Anti Doping Agency of Kenya v Erick Kumari Taki E039 of 2023 as follows:
35.Therefore, the Tribunal is satisfied that it has the requisite jurisdiction to entertain this appeal under the doctrine of necessity, given the extraordinary circumstances presented by the lack of operational FKF dispute resolution mechanisms. The creation of a new Tribunal panel further bolsters the integrity and fairness of the appellate process.
36.Having established that the Tribunal has jurisdiction to hear and determine this appeal, the second issue for analysis would be whether the grounds of appeal are merited.
Whether there was a contract between the Appellant and the Respondent as claimed, which formed the basis of the first instance division’s decision in favor of the Respondent.
37.It is the Appellant’s disposition that the Respondents, having failed to lead positive evidence establishing a contractual relationship with the Appellant rendered their claim invalid. They further averred that the first instance Panel erred in failing to find that the Respondent’s testimony revealed that the individuals who made the offer which led to the alleged contract were not agents or officials of the Appellant. Furthermore, there was no evidence of acceptance or consideration.
38.In dealing with this issue, the first instance Panel of the Tribunal relied on the contract dated 2nd September 2019, between the Respondent herein and the alleged signatories on behalf of the Appellant.Article 2.6.1 – Players Duties and Obligations, provides that
39.The basis of any suit in contract performance or non-performance is as per requirements of the Law of Contract Act (Cap 23 of the Laws of Kenya).
40.The Respondent herein was therefore expected to prove on a balance of probabilities the following essential elements to a lease agreement with the respondent:(a)An offer(b)… acceptance(c)….any consideration(d)… any intention to create legal relations.
41.As was observed by Harris JA in Garvey v Richards {2011} JMCA 16 the essential components of a contract ought to ordinarily reflect the following principles:
42.However, as it was clearly observed by the first instance Panel, the authenticity and validity of the disputed contract was not questioned by the Appellant, as the bone of contention seems to be the non-authorization of the signatories, who happen to be the Appellant’s employees. The Appellant intimates in its written submissions that the individuals whose names are indicated on the alleged contract were not officials nor were they authorized to sign on behalf of the Appellant, KCB FC.
43.According to the Respondent’s (Now Appellant) witness sworn by Bramwel Simiyu Mbirira and dated 5th September 2023, the Appellant entered a partnership with Protégé FC in 2019, in which Protégé FC was to develop players who were to join Respondent on merit. The partnership contract was said to have been in February 2020.
44.Section 3(1) of the Partnership Act defines a partnership as the relation which subsists between persons carrying on business in common with a view to profit.”From the definition, there are three essential facts without which a partnership cannot exist. These are:
45.To determine whether liability in a partnership will be on all the partners in a partnership or on a single partner independent of others, one has to take into consideration whether the exercise of the authority of a partner binds the firm. If such exercise of authority binds the firm then any liability arising from the exercise of that authority will be binding on all the partners in the firm. This was as stated in Vijay Kumar Saidha & another v Tribhuvan Gordhan Barkrania & 2 others [2015] eKLR.
46.Another useful point to note on the liability of partners is as stated in Halsbury's Laws of England 4th Edition Volume 35 at par. 56 where it is stated:
47.Moreover, in Lal Chand Sharma trading as Regal Provision Stores v Bush Mills [1957] EA 404 at p. 406 Lindley on Partnership (11th Edition) at p. 185 and 186 was quoted, where the following observation was made:
48.The Appellant’s witness sworn by Bramwel Simiyu Mbirira, without contradiction, stated that in the partnership,Protégé FC was to develop players who were to join the Appellant on merit. Article 2.6.1 of the Player’s contract makes it rather clear that Protégé FC is associated with KCB FC. It therefore holds that going through the said contract, the Respondent reasonably believed that he was indeed signing for KCB FC.
49.Further, relying on the compellability of the contract and based on Vijay Kumar Saidha & another v Tribhuvan Gordhan Barkrania & 2 others [2015] (supra), Protege FC was undoubtedly in the ordinary course of business of the Partnership when it initiated the transfer of the Respondent from his initial team to the Respondent. Disputing liability for the actions of Protege FC would be to deny the existence of the partnership altogether.
50.It is also worth noting that the Respondent did not provide any express provision as to what constituted authorization nor what distinguished a club official from a non-official.
51.Having established that the Partnership between the Appellant and Protege Football Club makes both the Respondent and Protege FC liable, we are in agreement with the first instance panel that the Respondent discharged its burden of proof and proved his case against the Appellant to the required standard.
Conclusion.
52.Having analyzed the issues above, the Tribunal pronounces itself and make orders as followsa.With regard to the Preliminary Objection raised by the Respondents arguing that the Tribunal lacks appellate jurisdictions arising from its own decision, the Tribunal finds that the doctrine of necessity as invoked has been rightfully done and the right of access to justice cannot be overlooked. Therefore the Preliminary Objection is hereby dismissed as the Tribunal has requisite Jurisdiction.b.The findings of the First Instance Panel regarding the existence of a valid contract and its breach are upheld.c.In effect, the Appeal is dismissed and the decision of the First Instance Panel delivered on 19th March 2024 remains in force.d.No further appeal from this decision should be made at the Tribunal.e.Each party bears its own cost.
DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF SEPTEMBER, 2024ELYNAH SIFUNA-SHIVEKA- PANEL CHAIRPERSONEDMOND GICHURU KIPLAGAT -MEMBERBENARD MURUNGA WAFULA - MEMBERAppearances:Mr. Kivindyo for the Appellant;Mr. Wahinya for the Respondent