Mokaya v Football Kenya Federation & 20 others (Tribunal Case E022 & E028 of 2023 (Consolidated)) [2024] KESDT 93 (KLR) (6 February 2024) (Decision)

Citation
Mokaya v Football Kenya Federation & 20 others [2024] KESDT 93 (KLR)
Media Neutral Citation
[2024] KESDT 93 (KLR)
Court
Sports Disputes Tribunal
Outcome
Allowed in part
Case number
Tribunal Case E022 of 2023
Judges
John M Ohaga, J Njeri Onyango, Gabriel Ouko
Judgment date
6 February 2024
Language
English
Type
Judgment
Original source file
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A. Introduction
i. The Parties
1.The parties in SDTSC No. E022 of 2023 were as follows:i.The Petitioner is a resident of Nairobi and particularizes himself as an ardent supporter of Kenyan football, a public-spirited individual, and a promoter of the rule of law.ii.The 1st Respondent is an organization of an associative nature registered in Kenya in compliance with the Sports Act No. 25 of 2013 as a National Sports Organization governing football.iii.The 2nd to 15th Respondents are former members of the FKF National Executive Committee.iv.The 16th to 18th Respondents are the current officials of a 13-member ad hoc committee elected by the General Assembly of the 1st Respondent vide a Special General Meeting held on 11th June, 2022 to temporarily undertake the roles and mandate of the FKF National Executive Committee.v.The 19th Respondent is the Cabinet Secretary appointed by the President of the Republic of Kenya to run the affairs in the Ministry of Youth Affairs, Sports, and Arts.vi.The 20th Respondent is the Sports Registrar and is under an office established pursuant to Section 45 of the Sports Act No. 25 of 2013, charged with the responsibilities of registration and regulation of sports organizations in Kenya.
2.The parties in SDTSC No. E028 of 2023 were as follows:i.The Petitioner is the same party as the Petitioner in SDTSC No. E022 of 2023.ii.The 1st Respondent is the same party as in SDTSC No. E022 of 2023.iii.The 2nd Respondent is the same party as the 20th Respondent in SDTSC No. E022 of 2023.iv.The 3rd Respondent is the same party in the 2nd Respondent in SDTSC No. E022 of 2023.
ii. Factual Background
3.It is the Petitioner’s contention that the 20th Respondent at the material time decided on 14th October, 2021, exercising her powers under Section 52 of the Sports Act, to appoint several persons (hereinafter referred to as the “Inspection Committee”) to conduct investigations into the affairs of the 1st Respondent.
4.The said Inspection Committee conducted inspection and investigations after which an outcome report and recommendation was presented to the 20th Respondent who in turn forwarded the report to the 19th Respondent.
5.The 20th Respondent thereupon vide Gazette Notice No. 12374 disbanded the then 1st Respondent’s National Executive Committee which was comprised of the 2nd to 15th Respondents and replaced it with a Caretaker Committee.
6.Following the appointment of the Inspection Committee, the 2nd to 15th Respondents moved to the High Court in Nairobi vide Constitutional Petition No. E473 of 2021 seeking that the appointment of the Inspection Committee and the Caretaker Committee be declared unconstitutional.
7.The High Court arrived at a decision dated 10th May, 2022 dismissing the said Petition and upheld the disbandment of the 1st Respondent’s National Executive Committee and the subsequent appointment of the Caretaker Committee.
8.Besides the High Court decision, this Tribunal on 19th July, 2022 in Petition No. E006 of 2021 issued orders to bar the 2nd to 15th Respondents from making any correspondence, declarations or decisions and/or announcements concerning the running of football affairs in Kenya.
9.In an FKF General Assembly meeting held on 22nd June, 2022 resolutions were passed dismissing the 15th Respondent from the office of the FKF General Secretary. A 13-member ad hoc committee headed by the 16th – 18th Respondents was appointed to manage the FKF affairs on behalf of the General Assembly until substantive National Executive Committee officeholders were legitimately elected into office.
10.The said orders and resolutions notwithstanding, the 2nd to 15th Respondents assumed office as members of the 1st Respondent’s National Executive Committee.
11.The Petitioner, being aggrieved by the 2nd to 15th Respondent’s assumption to office, instituted the present suit in a bid to obtain relief from the Tribunal as set out in the prayers encapsulated in his Petitions.
B. Pleadings and Preliminaries
12.The suit in E022 stems from a Petition dated 15th August, 2023 and was accompanied by a Supporting Affidavit sworn by the Petitioner.
13.The suit in E028 was instituted by way of a Petition dated 25th August, 2023 under a Certificate of Urgency seeking inter alia orders that the Tribunal issues a declaration that Article 43(3) of the FKF Constitution of 2017 is inconsistent with the provisions of Section 46(5) as read with clause c(i) of the Sports Act No. 25 of 2013 and be declared null and void.
14.On 28th August, 2023 the Tribunal certified the Petition as urgent whereupon the matter was mentioned on 29th August, 2023, and the scheduled hearing for E028 was vacated for a further mention on 26th September, 2023 upon filing and service of a Statement of Response by the Respondents herein.
15.To this extent, the now consolidated Petitions in E022 and E028 jointly raise the following issues:a.That a declaration be and is hereby issued that the 2nd to 15th Respondents are not authorised to act for and on behalf of the Football Kenya Federation (FKF) or to hold out themselves as officers of FKF;b.Thata declaration be and is hereby issued that the 2nd to 15th Respondents having been removed from office by a gazette Notice by the 20th Respondent which removal from office was upheld by the High Court in Constitutional Petition No. E473 of 2021 can only return to office either by way of a fresh election or court order;c.Thata declaration be and is hereby issued that until new office bearers are elected into office in accordance with FKF Constitution, the bona fide national office bearers of the Football Kenya Federation are the 13 ad hoc committee members elected/nominated by the FKF General Assembly meeting of 22nd June, 2022;d.Thata declaration be and is hereby issued that the 15th Respondent was removed from the office of the General Secretary of the Football Kenya Federation and is not authorized to act on behalf of FKF;e.Thatan order be and is hereby issued directing the 17th, 18th and 19th Respondents to immediately convene upon giving requisite notice, an elective general assembly of Football Kenya Federation for purposes of electing new office bearers for President, Deputy President and members of the National Executive Committee;f.Thatan order be and is hereby issued against the 20th Respondent to provide funding and other logistical support to the 17th to 19th Respondents and other FKF ad hoc Management Committee members to run the affairs of FKF including holding elections.
16.Against this backdrop, the 1st to 15th Respondents filed a Notice of Preliminary Objection dated 26th September, 2023 advancing that the Tribunal was not clothed with jurisdiction to hear and determine the Petitions since, among other arguments, the issues raised for determination were res judicata having been heard and determined previously by the Tribunal in SDTSC No. E036 of 2022 as consolidated with SDTSC No. E038 of 2022 and SDTSC No. E039 of 2022 which decision was later considered exhaustively by the High Court following a Judicial Review in HCJR No. 5 of 2022.
17.Concurrently, the 1st to 15th Respondents filed written submissions in support of the Preliminary Objection dated 6th October, 2023.
18.The Petitioner responded to the Preliminary Objection vide written submission dated 16th October, 2023 asserting that the Tribunal is vested with the jurisdiction to determine the suit and that the Preliminary Objection is incompetent for raising questions of facts for which the Tribunal would have to consider evidence in its determination.
19.The 15th to 17th Respondents filed Grounds of Opposition against the Petitioner’s Petition dated 3rd November, 2023 and written submissions of the same date arguing that the Tribunal did not have the jurisdiction to determine the instant suit owing that inter alia, the Tribunal pronounced itself in SDTSC E036 of 2022 as consolidated with SDTSC E038 of 2022 and SDTSC E039 of 2022 which was reviewed by the High Court.
20.The 19th and 20th Respondents filed Grounds of Opposition against the Petition dated 3rd November, 2023 and written submissions on the even date averring that the Tribunal did not have the jurisdiction to determine the instant suit on the basis that the issues raised were res judicata.
C. Substantive Claims
21.The parties tendered their written submissions wherein they addressed the issues for determination. The parties’ submissions, in essence, may be summarised as follows:
I. The Petitioner’s case
22.The Petitioner in his submissions in both SDTSC No. E022 of 2023 and SDTSC No. E028 of 2023 opposed the 1st to 15th Respondent’s Preliminary Objection.
23.From the onset, the Petitioner contended that a Preliminary Objection should raise a pure point of law and that the Tribunal ought to examine pleadings and apply relevant legal principles without any regard to facts and evidence.
24.The Petitioner asserted that the Preliminary Objection as filed raised factual questions with respect to the doctrines of ripeness and constitutional avoidance which the Tribunal would have to consider evidence in support thereof at hearing.
25.The Respondents were accused of deliberately filing a response to the Petition disguised as a preliminary point of law which ought to be dispensed by the Tribunal at the earliest opportunity.
26.To further advance his case that the Tribunal should find the Preliminary Objection unmerited and dismiss it with costs, the Petitioner cited the case of Jared Nyauma Ondieki & 6 Others v Football Kenya Federation,1 to buttress that the instant Petitions are sports related, and merit the jurisdiction of the Tribunal.1[2019] eKLR.
27.Also quoted was the case of Dennis Kadito vs. Sofapaka FC and Maqbull Abdi Karim vs Gor Mahia Football Club2 wherein it was held2SDTC Appeal No. 6 of 2018.that where a matter is of necessity in order to maintain order and justice in the sporting fraternity, the Tribunal must exercise its jurisdiction.
28.The Petitioner maintained that he had sufficiently established that the FKF affairs attract national interest and as such, acting in the public interest, he qualified to institute the present suit concerning FKF governance under Article 22 of the Constitution of Kenya, 2010.
29.The Petitioner further contended that legally speaking, the Tribunal is designated as an Independent Arbitration Tribunal which extends impartiality to all parties and is competent to issue a fair and just determination on the issues set out in the Petition.
II. 1st to 15th Respondents’ case
30.The 1st to 15th Respondents, in support of their Preliminary Objection, submitted that the Tribunal has no jurisdiction to entertain and determine the dispute before it.
31.The Respondents submitted that with respect to SDTSC No. E022 of 2023, the question is on the legal status of NEC and FKF. The decision delivered on 6th December, 2022 was subjected to Judicial Review in R v. Sports Disputes Tribunal & Others,3 concerning the question of jurisdiction and by a judgment dated 14th July, 2023, the High Court held that the Tribunal lacked the jurisdiction to deal with the questions raised in the present suit. It would be res judicata for the petitioners to litigate this issue afresh before the Tribunal.3JR Misc No. 5 of 2022.
32.To reinforce its claim, the said Respondents argued that the issues for determination in E022 were similar to the questions of law and fact considered by the Tribunal in SDTSC E036 of 2022 as consolidated with SDTSC E038 of 2022 and SDTSC E039 of 2022 and which decision was quashed by the High Court in Judicial Review No. 5 of 2022; the superior court thereby pronouncing itself exhaustively on jurisdiction.
33.For E028, the Respondents argued that no FKF elections had been called and as such, the instant Petitions cannot be elevated to constitutional issues for determination before the Tribunal or any other forum on account of the doctrines of ripeness and or constitutional avoidance.
34.Based on these arguments, the Tribunal was urged to dispose of the suit and uphold the Preliminary Objection.
35.In support of its prayers, the Respondents proffered that the Petition as filed fell short of the criteria set out under Section 58 of the Sports Act, 2013 which circumscribes the Tribunal’s jurisdiction. In any event, the Respondents argued that jurisdiction must flow either from the Constitution or legislation or both as held variously but specifically in Samuel Kamau Macharia & Another v Kenya Commercial Bank & 2 others.44[2021] eKLR.
36.The Respondents submitted that the Petition is presented as a constitutional petition under Article 22 of the Constitution of Kenya, 2010, and that the reference did not disclose a case for redress for violation of the Petitioner’s rights as spelt out under the Bill of Rights.
37.Put differently, that the architecture of the Petition and the legal questions posed in both petitions dealt with constitutional issues of violations of the Constitution, which removes the matter from the jurisdiction of the Tribunal.
38.Based on the foregoing and relying on Royal Media Services Ltd v Attorney General & 6 others,5 the Respondents submitted that the only court vested with the jurisdiction to redress grievances related to violations stemming from Article 22 read with Article 23 (1) of the Constitution is the High Court, under Article 165, to hear and determine matters of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.5[2015] eKLR.
39.Further, the Respondents proffered that the Petition presents futuristic questions on the FKF electoral cycle the basis upon which the question of ripeness of the dispute for purposes of adjudication is predicated upon.
40.It was submitted that under the doctrine of exhaustion, the dispute ought to have been referred to available internal dispute resolution mechanisms under the Football Kenya Federation (FKF) Constitution.
41.The Respondents herein contended that the Tribunal’s jurisdiction was vested under Section 58(b) which provided that parties must agree to refer the dispute to the Tribunal.
42.That provision notwithstanding, it was submitted that the Respondent had not agreed to remit the dispute before the Tribunal and was, in fact, challenging its jurisdiction.
III. The 19th and 20th Respondents’ case
43.The Respondents herein submittted that they supported the notice of Preliminary Objection given that the issues raised in both petitions are res judicata having been dealt with by the Tribunal in SDTSC E006 of 2021, SDTSC E036 of 2022, SDTSC E038 of 2022, SDTSC E039 of 2022.
44.Further, the Tribunal lacks jurisdiction by dint of the High Court judgment in Judicial Review No. 5 of 2022 which judgment was delivered on 14th July, 2023 prior to the filing of the present Petition and is binding on the Tribunal.
45.The Respondents averred that the Petitioner is now estopped from raising the same issues which were quashed before this Tribunal and reviewed by the High Court.
46.In other words, the Respondents’ case could be summed up in this manner: Insofar as a decision binds the Tribunal, it makes it unavailable for the Petitioner to approach the Tribunal relating to the same reliefs sought in the previous matters set out above.
D. Determination
47.We have considered the Petition, Preliminary Objection thereto, Parties’ Pleadings and submissions by counsel for the parties and authorities relied on. Although Counsel addressed a wide range of issues, the Tribunal distils only one issue, in our view, as ripe for determination, namely;
Whether the Tribunal is dressed with the requisite jurisdiction to hear and determine the matter at hand
48.The Tribunal’s jurisdiction to entertain this matter was disputed through the Respondent’s Preliminary Objection dated 26th September, 2023. The Tribunal elected to determine the two Petitions in E022 and E028 in a consolidated manner as they both arose under a similar set of circumstances.
49.To cut to the chase, the Tribunal seeks to settle the validity of the Preliminary Objection as per its form, nature and content.
50.This Tribunal is alive to the oft-cited dicta in Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd6 in which the Court of Appeal described a Preliminary Objection as thus:6[1969] E.A 696.“....A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.”
51.It is long-standing and well-settled jurisprudence that a Preliminary Objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Tribunal must be satisfied that there is no proper contest as to the facts, as has been held by the Supreme Court of Kenya in Aviation & Allied Workers Union Kenya v. Kenya Airways Ltd & 3 Others.77[2015] eKLR.
52.Owing that it is in dispute whether the Preliminary Objection as filed by the Respondents exposes pure points of law, the primary contention arising from the Parties’ Pleadings relates to the Tribunal’s jurisdiction to entertain the Petition.
53.It is a trite principle in law that a Tribunal is bound by the Pleadings that are before it. The High Court of Kenya at Migori in Daniel Otieno Migore v South Nyanza Sugar Co. Ltd stated that:88[2018] eKLR.“It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings.”
54.Therefore, having looked at the Pleadings and the evidence tendered in support, this Tribunal can only examine and pronounce itself on the issues that have been raised before it.
55.The Tribunal notes that the Respondents herein put forth that the Tribunal lacks jurisdiction to entertain the Petitioner’s claim as the same largely relates to prayers for a constitutional Petition which is within the ambit of the High Court.
56.To begin with, we note that the Petitions as drawn describe the suit to have been intended to be instituted before the Tribunal in the nature of a public interest suit, as shall be discussed herein.
57.In fact, at paragraph 1 of Petition No. E028 dated 25th August, 2023, the Petitioner avers: “…and has instituted these proceedings, pursuant to Article 22 of the Constitution of Kenya, 2010, under the practice of public interest litigation”.
58.The Tribunal must therefore determine and dispose of the issue pertaining to its jurisdiction to hear public interest litigation disputes in limine.
59.The Tribunal is alive to the resounding principle of law that a decision made by a judicial body such as this without proper jurisdiction amounts to a nullity ab initio, and such a decision is amenable to setting aside ex debito justitiae.
60.The locus classicus on jurisdiction, Owners of the Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Ltd,9 states thus:9[1989] KLR 1.“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. 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 down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
61.Relying on the jurisprudence generated in Lillian S, the Supreme Court of Kenya in the matter of Interim Independent Electoral Commission,10 held:10[2011] eKLR 1.“…jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity.”
62.This position was further affirmed in Bakeries Limited v. Rent Restriction Tribunal and Kiriti Raval;11 and Ex Parte Mayfair Bakeries Limited vs. Rent Restriction Tribunal and Kirit Raval,12 all to the effect that powers of a Tribunal must be expressly conferred and that:11HCMCC No. 246 of 1981.12HCMCC No. 246 of 1981.“Testing whether a statute has conferred jurisdiction on an inferior court or a tribunal... the wording must be strictly construed: it must in fact be an express conferment and not a matter of implication and that a Tribunal is a creature of statute and has only such jurisdiction as has been specifically conferred upon it by the statute. Therefore where the language of an Act is clear and explicit the court must give effect to it whatever may be the consequences for in that case the words of the statute speak the intention of the legislature. Further, each statute has to be interpreted on the basis of its own language for words derive their colour and content from their context and secondly, the object of the legislation is a paramount consideration."
63.Further, the cited section must be read with sufficient clarity in as far as the proviso is clear and unambiguous. The Supreme Court in the matter of Interim Independent Electoral Commission held that the jurisdiction of courts in Kenya is regulated by the Constitution, statute and principles laid out in judicial precedent, and as such, the Tribunal may not arrogate to itself jurisdiction.
64.This Tribunal primarily derives its jurisdiction from the provisions of the Sports Act, No. 25 of 2013, to be precise, Section 58 which reads thus:“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; andc.appeals from decisions of the Registrar under this Act.”
65.With respect to Section 58 (a), the Tribunal is cognizant that the question it has to interrogate is whether a decision from a national or umbrella sports organization lies before it.
66.The jurisdiction of the Tribunal under this provision is appellate in nature, and not original. Therefore, the Petitioner cannot rely on the provision to satisfactorily respond to the jurisdictional questions raised herein.
67.We find that (c) above fails to be of pertinence in the present suit considering that the dispute does not arise from a decision by a Registrar and therefore, the Jurisdiction of the Tribunal cannot be invoked under this provision.
68.The Tribunal finds it erudite to reiterate its holding in Dennis Kadito v Sofapaka FC in view of Section 58 (b) of the Sports Act where it stated thus:“However, a reading of section 58(b) demonstrates that it is not sufficient that the matter before the Tribunal should be a Sports related dispute; the parties to the dispute must also agree to refer the matter to the Tribunal and the tribunal must agree to hear the matter. It is clear that there is therefore a three (3) stage process for establishing the jurisdiction of the Tribunal under section 58(b) each limb of the three (3) stages process must be satisfied and each stage depends on a positive answer to the prior stage…”
69.Although the question as to whether a dispute is “sports-related” is to be determined on a case-to-case basis depending on the fact pattern in different circumstances as presented before this Tribunal, this question is in itself central for the Tribunal to determine its jurisdiction in the first instance.
70.The Sports Act and attendant legislation in Kenya have not defined the extent to which this Tribunal may determine whether a matter is to be determined as sports related or otherwise.
71.However, the 11th Black's Law Dictionary defines sports-related as the jurisdiction over the nature of the case and type of relief sought.
72.By way of comparative analysis, the Sports Disputes Resolution Panel of the United Kingdom, though not providing the definition of sportsrelated, describes its jurisdiction as assisting “with any dispute related to sport, whether discipline, doping, eligibility, selection, child welfare, funding, commercial contracts or any other sport’s related matter”.
73.It appears then that as held by the Sports Disputes Tribunal of New Zealand in Peter Craven & Simon Wallace v. Table Tennis New Zealand INC,13 for a matter to be considered sports-related, the particular grounds of challenge have to do with the sporting qualifications which guarantee audience in the Tribunal designated to determine sports matters and not any other judicial body.13[2007] eKLR.
74.Flowing from the foregoing, it is discernible that the jurisdiction of the Tribunal is vested under Section 58 of the Sports Act relating to all matters of sports.
75.Therefore, having elucidated the issue of the Tribunal’s statutory jurisdiction, we find it necessary to explicate the question as to whether the Tribunal is the proper forum to determine disputes in the nature of public interest litigation under the Kenyan Constitution, 2010.
76.The Petitioner herein pleads that this suit is instituted on public interest grounds as entrenched under Article 22 of the Constitution of Kenya and seeks the audience on the grounds that the Tribunal’s jurisdiction extends to hearing and determining matters of violation of fundamental rights and freedoms under the Bill of Rights.
77.The High Court’s jurisdiction is entrenched under Article 165 of the Constitution of Kenya, which reads:“(3)Subject to clause (5), the High Court shall have—a.unlimited original jurisdiction in criminal and civil matters;b.jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;c.jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;d.jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—i.the question whether any law is inconsistent with or in contravention of this Constitution;ii.the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;iii.any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; andiv.a question relating to conflict of laws under Article 191; and(e)any other jurisdiction, original or appellate, conferred on it by legislation.”
79.It is instructive to note that while the Tribunal has appellate jurisdiction to entertain sports matters including those arising from decisions of the Appeals Committee, it is the High Court that is vested with the jurisdiction to determine claims of a constitutional nature vis-à-vis violation of rights and fundamental freedoms under the Bill of Rights.
80.Article 22 of the Constitution, 2010 provides thus:“(1)Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.”(2)In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—a.a person acting on behalf of another person who cannot act in their own name;b.a person acting as a member of, or in the interest of, a group or class of persons;c.a person acting in the public interest; ord.an association acting in the interest of one or more of its members.”
80.With respect to the Court vested with the authority to uphold and enforce the Bill of Rights, Article 23 (1) clearly provides:“(1)The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.”
81.It is clearly evident that the High Court, by exercising these rights, may issue remedial rights as sanctioned by Article 23 (3) which provides thus:“In any proceedings brought under Article 22, a court may grant appropriate relief, including— (a) a declaration of rights;b.an injunction;c.a conservatory order;d.a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24; (e) an order for compensation; and(f)an order of judicial review.”
82.The age-old doctrine set over two score ago in Anarita Karimi Njeru v The Republic,14 and recently affirmed in Consumer Federation of Kenya v Toyota Motors Corporation & 4 Others,15 dictates that this Tribunal ought to be keen to ensure that, I keeping with the doctrine of constitutional avoidance, where a dispute can be determined through another forum without necessarily raising a constitutional issue in this particular Tribunal, this alternative forum ought to be pursued.14[1979] eKLR.15High Court Petition No. 455 of 2018. 16 [1992] KLR 21.
83.The doctrine of constitutional avoidance, also referred to as the doctrine of exhaustion is now of esteemed juridical lineage in our jurisdiction and was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oftenquoted terms:“Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.”16
84.This Tribunal is guided by the dicta of Justice J Mativo on the method of clarification on jurisdiction in Republic v Chief Land Registrar & Another16,17 wherein he relied on South African jurisprudence In the matter between Vuyile Jackson Gcaba v. Minister for Safety and Security First & Others,17Fraser vs ABSA Bank Ltd18 and held:16, eKLR.17CCT 64/08 (2009) ZACC 26.18{2006} ZACC 24; 2007 (3) BCLR 219 (CC); 2007 (3) SA 484 (CC) at para 40.“Jurisdiction is determined on the basis of the pleadings,… and not the substantive merits of the case… In the event of the court’s jurisdiction being challenged at the outset (in limine), the applicant’s pleadings are the determining factor. They contain the legal basis of the claim under which the applicant has chosen to invoke the court’s competence.”
85.On this basis, we hasten to observe that the form, nature and manner in which the Petitions have been instituted before this Tribunal indicates that although seeking sports-related remedies before the Tribunal, the Petitioner grounds its Petitions under Article 22 and approaches the Tribunal on the basis of public interest litigation through a constitutional reference.
86.The Petitioner seeks prayers in the form of a declaration of violation of rights. Given that the Petitions seek reliefs in the form of violations and infringement of rights under the Bill of Rights, the Petitioner is clearly subject to jurisdiction that is beyond the scope of this Tribunal under Section 58 of the Sports Act, 2013.
87.Similarly, under Paragraph 1 of E028, it is categorical that the Petitioner has filed the suit pursuant to Article 22 of the Constitution.
88.A reference to page 5 of the Petition provides the “Legal Foundation of the Petition” which deals with violations of constitutional rights. In addition, the Petitioner under Paragraph 14 also relies on Articles 22(1) and 258 of the Constitution to seek the audience of this Tribunal.
89.We are persuaded that the Tribunal has the liberty to strike out claims presented before it where it is shown that there exist alternative, sufficient and adequate avenues for parties to ventilate their grievances.
90.That notwithstanding and given that the Tribunal ought to deal only with the matters and facts as pleaded before it, we are constrained to fully examine the pleadings.
91.The Tribunal is drawn to Paragraph 10 of the Petitioner’s written submissions in E028 where he avers that the doctrines of ripeness and constitutional avoidance are issues that can only be ascertained after the parties tender evidence during the hearing of the present suit.
92.The above pleadings therefore bring into sharp focus the law of justiciability which inquires whether, at the time the suit was lodged, there existed a live dispute and whether any events subsequent to the filing of a suit may have eliminated the controversy between the parties.
93.We find it appropriate to spare some ink and paper to address this issue given that it elicits integral points of law that the Tribunal must address.
94.The Tribunal is conscious that when faced with a question of real earnest and vital controversy for determination, justiciability is a foremost issue to discern whether a dispute is capable of being settled through judicial intervention.1919Steve Ouma, ‘A Commentary on the Civil Procedure Act’ [2013] Law Africa Publishing, 14.
95.The Black’s Law Dictionary defines justiciability as:“…proper to be examined in courts of justice” or “a question as may properly come before a tribunal for decision.”2020Thomson Reuters Publishers, ‘Black’s Law Dictionary’ 9th Edn, 943-944.
96.Borrowing from the court’s holding in John Harun Mwau & 3 Others – v- AG & 2 others,21 for an issue to be justiciable, the Plaintiff, and in this case the Petitioner, must show that controversy has erupted hence presenting a legal issue that is not merely hypothetical and academic.21HCCP No. 65 of 2011. 23 Ibid 30.
97.Furthermore, a litigant must suffer “an injury in fact” and have a “personal stake” in the outcome that differentiates him from the public at large, and the requisite personal interest that must exist at the commencement of the litigation must continue through its existence.23
98.It is trite that as a general principle, the prayers sought in relation to parties to any judicial proceedings pending before the Tribunal are determined in accordance with the pleading filed when the suit was instituted and by applying the law in case of a preliminary objection.
99.We deem well-founded the pronouncement of Justice J Mativo (as he then was) in Republic v Council for Legal Education Exparte Desmond Tutu Owuoth,22 in rendering that the general attitude of courts of law is that they loathe making a pronouncement on academic or hypothetical issues as it ceases to present a justiciable controversy by virtue of supervening events, so that an adjudication of the case or a declaration on the issue would be of no practical value or use.22[2019] eKLR.
100.In the instant case, especially upon studying the prayers sought at paragraphs 24 (i) and (ii) of E028, it is apparent that the Petition anticipates a situation where FKF elections have been conducted, candidates nominated, and anticipates that the current FKF President would be a candidate.
101.Quite to the contrary, no evidence has been tendered by the Petitioner to the effect that such elections have been called and that candidates have been nominated, and as such, the Tribunal is inclined to reach the inevitable finding that at the time of instituting this suit, there existed no live dispute for adjudication.
102.It is regrettable that the reliefs sought by the Petitioner at the point when he filed the suit were academic and insofar as the purported elections are concerned, no evidence has been presented to indicate otherwise.
103.The Petitioner ought to have instituted the instant suit upon the calling of the elections and consequent presentation of papers by respective candidates to the office. Its inopportune filing of the suit therefore effectively renders the prayers sought therein academic and is akin to an attempt to put the cart before the horse.
104.Even if indeed there was a live dispute, which the Tribunal has established does not exist, the point of departure should be the doctrine of exhaustion of remedies as dictated under Section 58 (a) of the Sports Act, 2013.
105.Be that as it may and relying on the above time-tested and refined principles of law to the instant case, it is obvious that the Petitioner in this case is seeking a declaration in a factual vacuum which offends the doctrine of justiciability.
106.In our view, it is correct to state that the jurisdiction to determine sports disputes conferred under Section 58(b) does not exist in a vacuum and it is not exercised independently in the absence of a real dispute. It is exercised in the context of a dispute or controversy. In the present case, the dispute before the Tribunal falls outside the province of Section 58 and must fail for being academic.
107.Additionally, the Tribunal must be satisfied that both parties agreed to refer the dispute to the Tribunal.
108.The Respondent contends that it did not agree to refer the matter to the Tribunal and raised its Preliminary Objection to this effect.
109.Based on the above submission, the Tribunal is inclined to agree with the Respondents having raised its objection at the earliest opportunity. Besides, no evidence was tendered by the Petitioner to indicate that all parties had agreed to acquiesce to the Tribunal’s jurisdiction either in writing or by conduct.
110.The bottom line is that if a dispute arises out of subsequent events, it is quite open for the Petitioner in this matter or any other matter to file proceedings before the Tribunal. The Petitioner would therefore retain the right to withdraw the pleadings filed before the Tribunal and consequently file an appropriate suit which would be dealt with at that particular point and in that forum.
111.The Tribunal notes that the choice of an appropriate forum should indeed be determined by the competence, qualification and its experience.
112.For the avoidance of doubt, we deem it our duty to carve out a delicate balance in a bid to ensure that the exercise of the Tribunal’s jurisdiction does not undermine the laid out procedures that provide a remedy provided in law which the aggrieved party is yet to utilize or whittle down the clear intention of such legal provisions thereby ensuring the Tribunal only intervenes to the extent permissible by law and by the dictates of justice.
113.In the matter of Williamson v. Football Kenya Federation and quoted in Jacob Keli Mutungi & 3 others v Ambrose Rachier & 3 Others,25 this Tribunal had this to say:252019, eKLR.“The obligation upon the Tribunal is to ensure that where there is absence of a mechanism for legal redress, the Tribunal acts as the avenue subject to the provisions of the Sports Act, where legal redress can be sought.”
114.In the present suit, there is an available mechanism provided for the Petitioner to ventilate issues that relate to violation of rights and fundamental freedoms under the Bill of Rights.
115.Even assuming that the Tribunal was compelled to wholistically interpret Section 58 in light of Article 259, Article 48 of the Constitution of Kenya, 2010, and the principle of audi alteram partem, it is clear that the dispute presents unripe issues for determination.
116.In fact, although he controverted in his written submissions, the Petitioner has not satisfied this Tribunal to the requisite standard that a fresh cause of action has arisen, distinct and separate from the factual metrics examined by this same Tribunal prior to the instant suit.
117.The Gazette Notice No. 12374 referred to under Paragraph 100 of this Tribunal’s decision relating to SDTSC No. E036 of 2022 as consolidated with SDTSC No. E038 of 2022 and SDTSC No. E039 of 2022 forms part of the substratum of the Petitioner’s claim.
118.We note that the Petitioner in E022 under Paragraph 43 admits that this Tribunal on 19th July, 2022 in Petition No. E006 of 2021 barred the 2nd to 15th Respondents from making any correspondence, declarations or decisions and/or announcements concerning the running of football affairs in Kenya.
119.The Petitioner admits under Paragraph 44 that despite the existence of this Tribunal’s decision, disobedience and disregard of the orders have ensued which is a violation of national values and the Constitution.
120.It is the Respondent’s case in this matter that the issues for determination presently placed herein are similar to the questions of law and fact considered by the Tribunal in the above-cited cases.
121.Considering the foregoing, we find that the issues presented before the Tribunal do not arise from a fresh cause of action and as such, it would be res judicata for the Petitioners to litigate issues afresh before the Tribunal.
122.It then evidently follows that the Petitioner is not entitled to any of the prayers inscribed in the Petition.
123.In the same vein and taking into account that the Tribunal is divested of jurisdiction to determine the merits of the instant suit, we find that the Preliminary Objection is well founded, and therefore, the Petitions filed herein tear apart at the seams.
E. Disposition
124.Accordingly, having reached the conclusion that it has, the Tribunal consequently issues the following orders:a.The Preliminary Objection dated 26th September, 2023 is allowed;b.The Petitioner’s claims in Petitions E022 of 2023 dated 15th August, 2023 and E028 of 2023 dated 25th August, 2023 fail and are hereby dismissed;c.The reliefs sought in Petitions E022 of 2023 dated 15th August, 2023 and E028 of 2023 dated 25th August, 2023 are denied;d.Each party shall bear its own costs.
DATED AT NAIROBI THIS _6THDAY OF FEBRUARY, 2024Signed:............................................JOHN M. OHAGA SC, CARB - CHAIRPERSON............................................J NJERI ONYANGO (MRS), FCIARB, - MEMBER............................................MR. GABRIEL OUKO, MEMBER
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