Mwabindo & 20 others v Nabwire & 6 others (Tribunal Case E045 of 2023) [2024] KESDT 1568 (KLR) (22 October 2024) (Ruling)
Neutral citation:
[2024] KESDT 1568 (KLR)
Republic of Kenya
Tribunal Case E045 of 2023
E. G. Kiplagat, Chair, MN Kimani & Peter Ochieng, Members
October 22, 2024
Between
Suleiman B Mwabindo
1st Appellant
Zachel Murila
2nd Appellant
Basil Mwakulomba
3rd Appellant
Mohammed Hassan
4th Appellant
Samwel Mwangemi
5th Appellant
Gamaliel Mwarabu
6th Appellant
Abass Mghendi
7th Appellant
Boniface Mwakima
8th Appellant
Simeon Mkala
9th Appellant
Peter Mwakungu Waduu
10th Appellant
Moses Nyange
11th Appellant
Chrisine Mwalimo
12th Appellant
Rophus Mwadime Wuganga
13th Appellant
Johnson Senja Wache
14th Appellant
Zablon Mwanyumba
15th Appellant
Ali Mwang’ombe
16th Appellant
Fredrick Mwambanga Mwandoe
17th Appellant
Joseph CB Kina
18th Appellant
Henry Mwanzala
19th Appellant
Michael Kombe Kenga
20th Appellant
Basil Kiung Mwakilomba
21st Appellant
and
Doreen Nabwire
1st Respondent
James Mbaraka Okoyo
2nd Respondent
Dick Arudo
3rd Respondent
Naftali Aseka
4th Respondent
Mwatate United Football Club
5th Respondent
Beatrice Matunda
6th Respondent
Willy Mkubwa
7th Respondent
Ruling
Hearing: 01/10/2024
Panel:
1.E. Gichuru Kiplagat – Panel Chairperson
2.Mary Kimani - Member
3.Peter Ochieng – Member
Appearances
1.The Appellants by Mr. Ochieng Advocate for Ken Ochieng & Co. Advocates.
2.1st Respondent is represented by Mr. Muhuyu Advocate for Kirimi Kinoti & Co. Advocates.
3.Mr Mwaura Advocate for the 3rd Respondent.
4.Mr.Mbugua Advocate for the 4th Respondent.
5.Mr.Kung’u Advocate for the 5th,6th and 7th Respondents.
The Parties
1.The Appellants claim to hold various positions as officials/board of Mwatate United Football Club Youth (also known as Mwatate United Football Club) as elected by the membership and stakeholders of the club. Their role they contend is to run the day to day management of club. The rest of the Appellants claim to hold other positions in the Club
2.The 1st Respondent is described as the Head of the FKF Leagues and Competitions and that the appeal is lodged against her in that capacity and as an authorized representative of FKF League and Competitions Committee.
3.The 2nd- 4th Respondents describe themselves as former Chairman, Current Chairman and Current Secretary General of Dimba Patriots FC respectively.
4.The 5th Respondent describes itself as a community supported youth group based in Mwatate Sub-County in Taita Taveta County and is duly authorized to participate in the football activities that are organized by the FKF.
5.The 6th Respondent claims to be the duly elected and bonafide Secretary General of the 5th Respondent.
6.The 7th Respondent is claims to be the duly elected and bonafide Finance Director of the 5th Respondent.
Background
7.The Appellants approached the Tribunal vide their Memorandum of Appeal, a Certificate of Urgency and a Notice of Motion all dated 01/11/2023.
8.The Appellants claimed that the 1st and 2nd Respondents’ actions in and email dated 05/09/2023 approved and condoned and effected changes in the management of Mwatate United Football Club in line with a merger or combination with the take-over, acquisition or purchase by Dimba Patriots FC without the knowledge and or consent of the Appellants and without public participation in contravention of Rules 8.1.5,8.1.6,8.1.8,8.1,9.2,8.1.9.3 and 8.1.9.4 of the FKF Rules and Regulations Governing Kenyan Football 2019 and the Mwatate United Football Club’ constitution.
9.The Appellants also claimed that the 3rd and 4th Respondents without the consent and knowledge of the Appellants bought Mwatate United Football Club and merged or purchased it in favour of Dimba Patriots FC.
10.The Appellants claimed that having been aggrieved by the decision of 05/09/2023 they duly filed an appeal on 08/09/2023 as Football Kenya Federation Appeals Committee Appeal No.3 of 2023 which has hitherto not been heard having been past the 30 day window period within which to make a determination.
11.In summary the Appellants prayed for among others:a.Appeal be allowed with costs.b.A declaration be and is hereby issued that the 1st and 2nd Respondents’ actions approving and condoning and effecting changes in the management of Mwatate United Football Club in line with a merger or combination with the take-over, acquisition or purchase by Dimba Patriots FC without the knowledge and or consent of the Appellants and without public participation is in contravention of Rules 8.1.5,8.1.6,8.1.8,8.1,9.2,8.1.9.3 and 8.1.9.4 of the FKF Rules and Regulations Governing Kenyan Football 2019 and the Mwatate United Football Club’ constitution and an order of a permanent injunction again the two from carrying out these actions.c.A declaration be issued against the 3rd and 4th Respondents that selling Mwatate United Football Club to Dimba Patriots FC and without the consent and knowledge of the Appellants participation is in contravention of Rules 8.1.5,8.1.6,8.1.8,8.1,9.2,8.1.9.3 and 8.1.9.4 of the FKF Rules and Regulations Governing Kenyan Football 2019 and the Mwatate United Football Club’ constitution and an order of a permanent injunction again the two from carrying out these actions.d.An order against the 1st Respondent for the refund of Kshs.100,000/=.e.Any further relief the Tribunal deems fit.
12.The 1st Respondent filed a replying affidavit dated 04/11/2023 in her answer to the appeal. She states that she is the Head of the FKF Leagues and Competitions and is well versed with the facts of this appeal and duly authorized by the Leagues and Competitions to swear the affidavit on its behalf.
13.She stated the Appellants were given an opportunity to be heard by the Leagues and Competitions before the Leagues and Competitions decision of 05/09/2023.She notes that on 21/08/2023 they received an email from James Mbaraka Okoyo informing them of change in the management of the club. She stated that Mr. Okoyo attached a letter dated 16/08/2023 and an email dated 21/08/2023.
14.She stated that there they were cautious about Mr.Okoyo’s representations as they also had received information from the Appellants that they were the new officials of the club. The 1st Respondent claims to have brought this to the attention of the Appellants and Mr Okoyo via an email dated 24.08.2023.
15.The 1st Respondent further noted that the two sides were brought together for adjudication of the dispute surrounding the change in management of the clubs before the Leagues and Competition Committee as per copies of WhatsApp screenshots and the parties appeared before it in 1st September 2023 but the parties failed to agree and requested FKF to make a decision. She relied on minutes of that day filed with the Tribunal. A decision she said was arrived at on 05.09.2023 based on the club’s constitution.
16.She deponed that the club’s constitution provides at Chapter 15 that elections shall be held every 4 years through secret ballot and that the quorum for such election must be at least 75% of the members. She contends that no changes could have been made in the manner suggested by the Appellants. The Appellants did not also comply with Rule 8.1.10 of the Rules and Regulations Governing Kenyan Football that required clubs to observe their constitution that all actions by the Appellants are illegal, null and void abinitio.
17.She further noted that the bonafide officials of the club are James Mbara Okoyo as Chairman, Patricia Chao Mwashighidi as Treasurer and Beatrice Matunda as Secretary.
18.The Respondents prayed that that the appeal herein be dismissed with costs.
19.The 3rd Respondent filed a replying affidavit dated 13/12/23.He largely associated himself with the averments of the 1st Respondent and noted that the decision of the 1st Respondent of 05/09/2023 was correct and confirmed the status of the club having legally merged with Dimba Patriots FC.
20.The 3rd Respondent also noted that the Appellants do not have locus and cannot sue on behalf of the club as they are not the bona fide officials and have relied on unsigned questionable minutes and no evidence of their elections as club officials have been tabled. The 3rd Respondent also allege that the Appellants are relying on the Club’s constitution dated 29/03/2023 yet the Club’s constitution precedes that date and the club could not have participated in FKF activities without a constitution as per Rule 8.1.4 of the Rules and Regulations Governing Kenya Football.
21.The Appellants also claimed that the Appellants filed an appeal with the FKF Appeals Committee and did not provide a transcript or minutes and as such that appeal is not complete and the same would perhaps explain the delay in rendering its decision.
22.The 3rd Respondent prayed that the appeal be dismissed with costs
23.The 3rd and 4th Respondents filed a preliminary objection dated 4th December,2023 who’s main grounds were:a.The Tribunal lacks jurisdiction to hear and determine this matter since the Appeal filed by the same Appellants at the FKF Appeals coming being appeal number 3 of 2023 is still pending and yet to be heard and determined and is sub judice as per section 6 of the Civil Procedure Act.b.The Tribunal lacks jurisdiction because the Appellants have not exhausted internal remedies.c.The Tribunal lacks jurisdiction to hear and determine the matter since it is not a sports dispute but rather a management and control of club dispute that should be referred to the Registrar of Societies for determination.
24.The matter was heard on the 15th December,2023 and the Tribunal delivered its decision on 13/02/2024 in the following terms:a.The preliminary objection dated 4th December,2023 be and is hereby dismissed;b.The Memorandum of Appeal dated 01/11/2023 be and is hereby allowed in part and the Tribunal allows prayers (b),(c) and (d);c.Each party shall bear its own costs of this petition;d.Orders accordingly.
Application for Contempt and Application for Joinder
25.The Appellants filed a motion for contempt dated 28/06/2024 but before the Tribunal could hear the contempt case, Mwatate Football Club filed an application dated 26/08/2024 seeking to be enjoined to the contempt proceedings.
26.The Tribunal in its wisdom directed the parties to file their response to the joinder application which was disposed of via a hearing conducted on 02/09/2024.On 10/09/2024 the Tribunal delivered its decision on the joinder application and allowed Mwatate United Football Club, Beatrice Matunda and Willy Mkubwa the 5th,6th and 7th Respondents respectively herein to participate in the proceedings.
27.The parties were further directed by the Tribunal on the same day to file their responses to the contempt motion dated 28/06/2024 and come back for hearing on 01/10/2024.
Hearing (the Application for Contempt)
28.The Applicants relied on their application dated 28/06/2020 under certificate and supporting affidavit of Suleiman B. Mwabindo all dated 28/06/2024.The Applicants also relied on the further affidavit of Mr. Mwabindo dated 17/08/2024 and written submissions dated 23/09/2024 and further written submissions dated 03/10/2024. They prayed that the Tribunal finds the 1st,3rd and 4th Respondents in criminal and civil contempt jointly or generally for disobeying the decision of the Tribunal dated 13/02/2024 and decree and orders of the Tribunal dated 26/02/2024 and to show cause why they should not be punished.
29.They further prayed that the contemnors be found guilty of contempt of court unless they can purge the same and if not an appropriate sanction in form of a fine or in the alternative they committed to civil jail or both.
30.Furthermore, the Applicants also prayed that Mwatate United Football Club Youth Group also known as Mwatate United Football Club be immediately reinstated to the FKF National Super League(NFL) and be forthwith allowed to participate in the FKF National Super League 2024/2025 season in its own name in lieu of Dimba Patriots FC with their home matches being hosted at Danson Mwanyumba Stadium in Wundayi,Taita Taveta County and not in the Wolves Den, in Olooloitikosh, Kajiado County. They also prayed for costs and any other appropriate relief.
31.The 1st Respondent filed a replying affidavit sworn by herself dated 13/08/2024 which relied on during the hearing as well as written submissions dated 01/10/2024. She stated that the Application lacks merit and should not be allowed given that upon receipt of the Tribunal’s decision dated 13/02/2024 and orders of 26/02/2024 the FKF CEO one, Barry Otieno wrote to Mwatate United FC vide letter dated 14/02/2024 halting the club’s matches until the disagreement between the members of Mwatate FC were resolved. The CEO also informed the Club that it will effect the name change from Dimba Patriots to Mwatate United FC at the end of the season to alleviate any confusion among the National Super League Clubs.
32.The 1st Respondent further noted that on 17/02/2024 the FKF received communication from Mwatate United FC that due to the death of the club’s Chairperson, the 2nd Respondent herein on 15/10/2023 its members had conducted elections on 15/02/2024 whereof they voted in Dick Okinyi at its Chairperson and wanted the said changes effected. She also noted that Mwatate United FC also voted to rebrand their club’s name to Dimba Patriots FC for the duration of sponsorship they had with them and these changes were accordingly effected by her as the Head of the FKF Leagues and Competitions Committee in good faith and in the honest belief that the resolution sent to FKF was the voice of members which she had no powers to go against.
33.The 1st Respondent also noted that from the minutes she received the 1st Applicant was in the meeting but had absented himself without apologies and therefore she did not disobey the Tribunal’s orders but only gave effect to the members will which was made through a proper participation of its members through an election.
34.Moreover, the 1st Respondent indicated that the motion is an abuse of the court process and all that is happening is an issue of leadership wrangles and in-fighting in the Mwatate United FC by different factions affecting parties like her negatively. She also noted that she has never seen the letter dated 11/04/2024 produced as annexture SBM-1 by the Applicants purporting to show some of them as officials and that FKF has not been advised or informed of such changes in the management of the club pursuant to Rule 8.1.10 of the Rules and Regulations Governing Kenyan Football 2019 and as such the said purported officials are unknown and unrecognized by the Football Kenya Federation and further that they have never been informed of any elections that resulted in them occupying offices as officials.
35.However,during the hearing on 01/10/2024 the 1st Respondent stated that she was misled on the relationship between the 5th Respondent and Dimba Patriots FC and the change of names in the NFL following the meeting of 15/02/2024 that sanctioned the move.
36.Lastly, the 1st Respondent stated that it is in the interest of justice that the club and its members follow their constitution on elections of new officials and that no elections have been conducted by the Applicants as members of Mwatate United FC to elect them as officials and that the Tribunal should seek a resolution of this dispute through mediation.
37.The 3rd Respondent filed grounds of opposition dated 17/08/2024 and a replying affidavit dated 19/09/2024 stating that though a sale and acquisition of Mwatate United FC had been proposed and the necessary approvals sought with FKF the fact is that no sale ever took place as the Applicants stopped the intended transaction when they filed the suit and the Federation on 15/02/2024 had a meeting to discuss the Tribunal’s decision and the current motion is misconceived.
38.The 3rd Respondent notes that the instant motion is based on a different course of action which is anticipatory as the new league had not commenced and that the continuation to complete the 2022/2023 league by Mwatate FC playing as Dimba FC was well explained and notified to all parties at the end of the season. Furthermore, the 3rd Respondent noted that it was the players of Mwatate FC who participated in the NSL 2022/2023 league season so the issue of the name alone cannot be used by the Applicants to curtail the growth of the club and create unnecessary dispute.
39.The 3rd Respondent also states that the Applicants should have exhausted the internal resolution mechanism of FKF and that Mwatate United FC only agreed with the sponsor to rebrand the club and not sale or merge it with Dimba FC and any such sale or merger was abandoned pursuant to the Tribunal’s decision dated 13/02/2024.
40.The 3rd Respondent also noted that the Tribunal allowed the prayers made by the Applicants however the prayers were so broad and parties have to go look for those prayers to understand them which he submits fails the test of what a civil contempt proceeding entail.
41.Lastly, the 3rd Respondent noted that Mwatate FC has been participating in the NSL 2023/24 under a rebranded name and thus the contention that it has not been participating in the NSL is untrue and misplaced.
42.The 4th Respondent elected to make oral submissions and did not file any formal response. He fully aligned himself with the assertions made by the rest of the Respondents who were all opposed to the motion for contempt.
43.The 6th Respondent filed a replying affidavit dated 19/09/2024 deponed to by herself which she highlighted during the hearing. She also indicated that she has the authority to speak on behalf of the 5th and 7th Respondents herein. She was largely in agreement with most of the averments by the rest of the Respondents.
44.The 6th Respondent states that the 5th Respondent has never been sold or merged with Dimba Patriots FC and that there is no intention to do so and that the 5th Respondent remains an independent football club. She further noted that what took place was an economic partnership between Dimba Patriots Limited and the 5th Respondent and there is therefore no contempt against the Tribunal’s decision of 13/02/2024.She attached the sponsorship agreement.
45.The 6th Respondent stated that there has been change in management following the demise of the 2nd Respondent that necessitated elections of officials of the 5th Respondent which elections were conducted in accordance with the 5th Respondent’s constitution on 15/02/2024.She further stated that she communicated the outcome of the elections including the list of elected officials to the Social Development Officer in Mwatate Sub-County and that the election of new officials by the club do not amount to contempt of the Tribunal’s ruling since the Tribunal did not permanently bar members of the 5th Respondent from ever electing new officials.
46.The 6th Respondent prayed that the motion be dismissed.
Determination
47.We have taken into account the parties’ pleadings, written submissions and oral submissions and the Tribunal makes the following findings:
48.The jurisdiction of this Tribunal stems from section 58 of the Sports Act that provides:
49.The Applicants have brought contempt proceedings against the 1st,3rd and 4th Respondents for disobeying the orders of the court issued on 13/02/2024 and 26/02/2024.In its decision of 13/02/2024 the Tribunal ordered as follows:a.The preliminary objection dated 4th December,2023 be and is hereby dismissed;b.The Memorandum of Appeal dated 01/11/2023 be and is hereby allowed in part and the Tribunal allows prayers (b),(c) and (d);c.Each party shall bear its own costs of this petition;d.Orders accordingly.
50.Contempt of Court was defined by this Tribunal in the case of SDT No.E002 of 2021 Linus Gerald Marangu v. Major (RTD) Suleiman Sumba. The Tribunal said that:
51.The test to apply to determine whether a matter has met the threshold under the law as contempt was well explained in the case of Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR where Hon. Justice J Mativo observed:
52.The Tribunal will go through each of the test in the Samuel M. N. Mweru case above. In terms of the first test, we find that orders issued by the Tribunal on 13/02/2024 and 26/02/2024 were clear and unambiguous and were binding on the on the 1st,3rd and 4th Respondents. This is confirmed by the 1st Respondent in her replying affidavit dated 13/08/2024 when she says in paragraphs 3 & 4:
53.If the orders were indeed unclear or ambiguous or broad as stated by the 1st and 3rd Respondents these would not lead to a chain of events or foregoing actions by the FKF.It is unequivocally clear that they understood clearly what the orders entail.Equally,the same 3rd Respondent acknowledged this fact in his replying affidavit dated 19/09/2024 at paragraphs 1 and 3 when he states that:
54.Indeed, it is succinct that the 3rd Respondent understood the import of the orders by this Tribunal issued on 13/02/2024 and 26/02/2024.He cannot probate and reprobate by blowing hot and cold at the same time by saying that the orders were not clear and then later saying that they complied with the orders.
55.The 4th Respondent in his oral submissions and by his very conduct makes it clear that he understood the essence of the orders of this Tribunal of 13/02/2024 and 26/02/2024 and is therefore estopped from saying anything to the contrary.
56.The second applicable test is that the 1st,3rd and 4th Respondents should have had knowledge of or proper notice of the terms of the orders. We confirm that the three Respondents had knowledge of the orders. They all have confirmed to the Tribunal via their responses that they were served with the orders of the Tribunal and had knowledge of it. None has objected to this or provided contrary material including the 4th Respondent who never filed any formal response but aligned himself with the rebuttals made by the 1st and 3rd Respondents. We have time and again said that parties are bound by their pleadings as seen in our decision SDT E046 of 2023-Isaac Aluochier v. Kenya Swimming Federation where we quoted with approval Raila Amolo Odinga & Another vs IEBC & 2 Others (2017) eKLR. This also applies to these formal proceedings.
57.The third and fourth tests applicable are that the 1st,3rd and 4th Respondents must have acted in breach of the terms of the order and that their conduct was deliberate.
58.The 1st Respondent who is the Head of the Football Kenya Federation Leagues and Competitions in her replying affidavit dated 13/08/2024 stated that when the elections for officials for the 5th Respondent were conducted on 15/02/2024 where Dick Okinyi was voted in as the Chairman and the 5th Respondent was voted to rebrand the club ‘s name to Dimba Patriots FC for the duration of the sponsorship they had with them and on that strength of the aforesaid communication from the Committee effected the changes in good faith. She noted that she acted in honest belief that the resolution sent to the Football Kenya Federation were the voice of members and that by effecting the changes based on the minutes dated 15/02/2024 she did not condone the selling, merger or combination with and take over, acquisition or purchase of the 5th Respondent.
59.The Tribunal in its decision of 13/02/2024 at paragraph 43 made the following findings:
60.The finding was as a result of the fact that the 5th Respondent had been sold to Dimba Patriots FC by the Respondents without following the constitution of the 5th Respondent and the FKF Rules and Regulations Governing Kenyan Football 2019 the 5th Respondent being affiliated to it.
61.Despite this finding and orders thereof the 1st Respondent by her own actions allowed Dimba Patriots FC to retain its name and play in the place of the 5th Respondent until the end of that league season to avoid confusion as noted from the letter dated 14/02/24 by FKF to the 5th Responding yet the orders of the Tribunal dated 13/02/2024 and 26/02/2024 had not been varied or set aside. This actions were in blatant breach of the orders of the Tribunal.
62.The 1st Respondent also gave her green light to the purported elections of officials of 15/02/2024 yet the Tribunal has not seen sufficient material from the 1st Respondent demonstrating that bona fide members of the 5th Respondent participated in that meeting to elect new officials and to pass a resolution for the 5th Respondent to enter into a sponsorship agreement with Dimba Patriots Limited. A mere statement that the 75% threshold of members as required by Chapter 14 of the 5th Respondent’s constitution was met and attaching a list of members who met and minutes recorded as seen in paragraphs 9 and 11 of the 3rd Respondent’s replying affidavit dated 19/09/2024 was to say the least cavalier and cannot stand the test of scrutiny. The Respondents, for example should have availed a list of bona fide members of the 5th Respondent from the regulator, either the Ministry of East African Community, Labour and Social Services or the Mwatate Sub-county Social Development Officer as per the 5th Respondent‘s certificate of registration attached by the 3rd Respondent in his affidavit. The 1st Respondent and indeed the rest of Respondents would then have given a mathematical representation to the satisfaction of the Tribunal as to how the 75% threshold was achieved from the list of bona fide members for the elections and resolutions passed on 15/02/2024.
63.It is worth pointing out that the Tribunal did not issue a permanent injunction against effecting any new changes with respect to the 5th Respondent in its decision of 13/02/2024 as stated by the 3rd Respondent in paragraph 19 of his replying affidavit dated 19/09/2024.To the contrary the Tribunal permanently barred any illegal changes with respect to the 5th Respondent that were contrary to the 5th Respondent’s constitution and the FKF Rules and Regulations of 2019.
64.The 1st Respondent during the hearing of this matter on 01/10/2024, made the claim that the FKF Rules and Regulations allow clubs to change their names through sponsorship agreements. This is not true. The Tribunal has taken time to read the entire FKF Rules and Regulations. As a matter of fact under Articles 5.1.7,5.1.8 5.1.9,5.10 and 5.11 of the FKF Rules and Regulations sponsors are only allowed to place their advertisements on club kits such as jerseys and shorts as long as such sponsors do not get into conflict with the relevant FKF official competition.
65.Moreover, Article 8.1.6 of the FKF Rules and Regulations provides that no team will be allowed to sell its slot in a league unless this is sanctioned by the FKF National Executive Committee on the recommendation of the FKF National Leagues and Competitions Committee and the respective FKF branch under whose jurisdiction the team is based. Article 8.1.8 more importantly provides that a club shall not be permitted to change its name (that is to say the name under which the Club competes in a League) save with the prior written permission of the FKF National Executive Committee on the recommendation of the FKF National Leagues and Competitions Committee.
66.We submit that the 1st Respondent acted in breach of the terms of the orders and that her conduct was deliberate. The fact that she allowed the change of names of the 5th Respondent to Dimba Patriot FC after the meeting of 15/02/2024 without evidence presented to the Tribunal that these changes were in full compliance of Articles 8.1.6 and 8.1.8 of the FKF Rules and Regulations that required the prior written permission of the FKF National Executive Committee and the FKF National Leagues and Competitions Committee shows that she acted with such brazenness in breach of the terms of the orders of the Tribunal of 13/02/2024 and 26/02/2024.In any case the sponsorship agreement dated 15/08/2023 between Dimba Patriots Limited and the 5th Respondent at Article 4 provided that the 5th Respondent would only rebrand its name to match the sponsor’s name where permitted.Indeed,there was an obligation on the part of the 1st ,3rd and 4th Respondents to ensure that change of names was permissible under the FKF Rules and Regulations and proceed to the extent that the Rules and Regulations allowed. That was not done.
67.Interestingly, 1st Respondent during the hearing on 01/10/2024 claimed to have been misled on the legal status of the 5th Respondent and its relationship with Dimba Patriots FC. However, she also stated in her replying affidavit dated 13/08/2024 that the dispute before the Tribunal was based on leadership wrangles and proposed mediation as the best mechanism to address the dispute under the stewardship of the Tribunal. The 1st Respondent appears to have abandoned her earlier assertions in which she gave the elections of 15/02/2023 and the sponsorship agreement between the 5th Respondent and Dimba Patriots Limited a clean bill of health.
68.The 1st Respondent holds a very important position in FKF and cannot say that she was at some point misled but yet again claims to have acted in good faith and believed that the changes made with respect to the 5th Respondent and Dimba Patriots FC were above bode. This is not acceptable. She owed a duty to the 5th Respondent and all stakeholders to confirm that the elections of 15/02/2024 and the resolution to adopt the sponsorship agreement from Dimba Patriots Limited have fully complied with the 5th Respondent’s constitution and the FKF Rules and Regulations consistent with the Tribunal’s decision of 13/02/2024 and 26/02/2024.She did not. The manner in which she handled this whole process was casual, negligent and with reckless abadon.This cannot escape our admonition.
69.The 3rd and 4th Respondents cannot also escape our reprimand as they were as much an invisible part of this enterprise as was the 1st Respondent. As persons who carried themselves as either members or officials of the 5th Respondent they aided and abetted the violations of the orders of the Tribunal issued on 13/02/2024 and 26/02/2024.The 3rd and 4th Respondents were part of the meeting that took place on 15/02/2024 that proceeded to elect new officials of the 5th Respondent and sanctioned the sponsorship agreement contrary to the 5th Respondent’s constitution and Articles 5.1.7 5.1.7,5.1.8 5.1.9,5.10 and 5.11 as well as Articles 8.1.6 and 8.1.8 of the FKF Rules and Regulations. The 3rd Respondent confirms his participation and that of the 4th Respondent in this meeting at paragraph 9 of his replying affidavit dated 19/09/2024 where he says that he was elected the club chairman and the decision to engage the club sponsor was also made. The 3rd Respondent attached a copy of the minutes and attendance register annexed to his replying affidavit marked “DA 2” showing the names of the 3rd and 4th Respondents as having attended the meeting. These actions on the part of the 3rd and 4th Respondents were deliberate and willful and were in total breach of the terms of the orders of the Tribunal of 13/02/2024 and 26/02/2024.
70.Orders of the Tribunal are not issued in vain otherwise anarchy will be the bane of society. We all have to be subordinate to the rule of law and vehemently resist any departures.
Conclusion
71.It is therefore in consideration of this, as well as the parties’ submissions that the Tribunal makes the following orders:a.The 1st,3rd and 4th Respondents have by their conduct and acts of commission and omission been contemptuous of the orders of this Tribunal and are convicted accordingly;b.The 1st,3rd and 4th Respondents are hereby ordered to pay a fine of Kshs.200,000 each personally within fourteen days of today’s ruling. Failing compliance the 1st,3rd and 4th Respondents will be committed to civil jail for three(3) moths;c.The matter shall be mentioned on 5th November,2024 at 2:30pm via this platform to confirm compliance. The 1st,3rd and 4th Respondents’ personal attendance will be required;d.Costs of this application to the Applicants;e.Orders accordingly.
DATED AT NAIROBI THIS 22ND DAY OF _OCTOBER, 2024GICHURU KIPLAGAT, PANEL CHAIRPERSONMARY N. KIMANI, MEMBER PETER OCHIENG, MEMBER