https://new.kenyalaw.org/akn/ke/judgment/kesdt/2026/15

 REPUBLIC OF KENYA IN THE TRIBUNAL OF KENYA AT NAIROBI COUNTY COURT NAME: SPORTS DISPUTES TRIBUNAL CASE NUMBER: SDTSC/E024/2026 SAMUEL OCHOLA VS AMBROSE RACHIER AND SALLY BOLO AND 2 OTHERS JUDGMENT # INTRODUCTION 1. This matter concerns the confirmation of Hon. Eliud Owalo, the Interested Party, as the substantive Patron of Gor Mahia Football Club (“the Club”). The confirmation is said to have arisen from a decision made by the Club’s Executive Committee and subsequently communicated through a press release issued by the Club’s Chairperson, the 1st Respondent, on 9th November 2025. The Claimant challenges the validity of that decision, contending that it was undertaken without adherence to the procedures prescribed under the Club’s Constitution. 2. Prior to the confirmation in issue, the Interested Party had been appointed as the Club’s Deputy Patron, a position which the Applicant contends does not exist under the Club’s Constitution and was thereafter appointed Acting Patron following the demise of the former Patron, The Rt. Honourable Raila Odinga. 3. The Applicant, a life member of the Club and its former Secretary General, challenges that decision and its implementation on the basis that the Club’s Executive Committee lacked authority under the Club’s Constitution adopted in 2019. He pleads that under the Club’s Constitution, the power to appoint the Patron is vested exclusively in the Board of Trustees, an organ that has never been constituted. 1. The Respondents, namely Mr. Ambrose Rachier, Ms. Sally Bolo, Mr. Nick Arum and Mr. Gerphas Okuku, are sued in their official capacities as members of the Executive Committee of Gor Mahia Football Club. They constitute the Chairperson, Vice Chairperson, Secretary General and Treasurer respectively, appointed pursuant to Article 9 of the Club’s Constitution. 2. The Interested Party, Hon. Eliud Owalo, is the individual whose confirmation as Patron of Gor Mahia Football Club forms the subject of this dispute. 3. The Applicant contends that, in the absence of a Board of Trustees, the Executive Committee could not lawfully confirm the Interested Party as Patron for lack of foundation under the Club’s Constitution. The Applicant therefore seeks declaratory relief to that effect, together with structural orders requiring the constitution of the Board of Trustees and adherence to the appointment procedure prescribed in the Club’s Constitution. 4. The Tribunal is therefore called upon to examine whether the process leading to the Interested Party’s confirmation as Club Patron complied with the Club’s Constitution, whether the Executive Committee acted within its lawful remit and whether the decision communicated on 9th November 2025 was validly made. # CLAIMANT’S CASE 1. The Claimant’s case is set out in his Statement of Claim, Notice of Motion dated 10th April 2026, Grounds of Opposition to the 1st Respondent’s Notice of Motion dated 20th May 2026, his Response to the 1st Respondent’s Response, his List of Documents and his witness statement. In these pleadings, the Claimant introduces himself as a life member of Gor Mahia Football Club and its former Secretary General, asserting that he has a legitimate and enduring interest in the Club’s governance and constitutional compliance. His challenge is directed at the legality of the process by which the Club’s Patron was confirmed. 2. The Claimant pleads that the Club adopted a written Constitution in 2019, which he annexes and relies upon as the foundational instrument governing all organs and offices of the Club. He specifically cites the provisions dealing with the Board of Trustees and the office of Patron and pleads that under that Club’s Constitution, the Patron is not an informal or *ad hoc* figure but a constitutionally recognized office whose appointment is expressly vested in the Board of Trustees. 1. The Claimant avers that despite the clarity of the constitutional text, the Board of Trustees has never been constituted since the adoption of the 2019 Constitution. It is his case that the Executive Committee has failed and/or refused to convene an Annual General Meeting for the purpose of nominating and approving trustees and has instead continued to operate without this key oversight organ. He characterizes this omission as a continuing breach of the Club’s Constitution and a deliberate avoidance of accountability. 2. Against that background, the Claimant pleads that on or about 9th November 2025, the Executive Committee issued a press release purporting to confirm Hon. Eliud Owalo as the substantive Patron of Gor Mahia Football Club, effective 1st November 2025. He annexes the press release as part of his Bundle of Documents and states that the communication was made publicly, in the name of the Club and presented as a formal decision of the Executive Committee yet the press release did not refer to any meeting of the Board of Trustees, any resolution of that Board, or any Annual General Meeting at which trustees were nominated and approved. In his view, the press release is clear evidence that the Executive Committee arrogated to itself a power that the Constitution reserves exclusively to the Board of Trustees. 3. The Claimant further pleads that he reacted promptly to this development and that on 12th November 2025, he wrote to the Executive Committee demanding rescission of the appointment, pointing out that the Club had no Board of Trustees and that the appointment of the Patron was therefore unconstitutional. He produces this letter and avers that it was received but not acted upon. 4. He then instructed his advocates, who issued a demand letter dated 5 th December 2025, reiterating that the appointment was contrary to Articles 5.4, 7 and 8(1) of the Club’s Constitution and warning that failure to rectify the situation would compel escalation to the Sports Registrar and, if necessary, to this Tribunal. The Claimant pleads that these letters demonstrate his attempt to resolve the matter internally and his insistence on constitutional compliance before resorting to litigation. 5. The Claimant places considerable reliance on the letter from the Sports Registrar dated 23rd March 2026, which he annexes to his List of Documents. He pleads that the Registrar, having considered the material placed before her, expressly confirmed that Gor Mahia Football Club has no Board of Trustees yet the Respondents proceeded to appoint a Patron contrary to Article 5.4 of the Club’s Constitution. 1. He further pleads that the Registrar noted other governance concerns, including failure to comply with statutory election timelines and failure to convene the Annual General Meeting and advised that while she would continue to exercise her regulatory mandate, the Claimant retained the right to seek relief from the Sports Disputes Tribunal. In the Claimant’s view, this letter is an authoritative regulatory finding that the appointment of the Patron was unconstitutional and that the Executive Committee’s conduct warranted Tribunal scrutiny. 2. In his Grounds of Opposition to the 1st Respondent’s Notice of Motion dated 20th May 2026, the Claimant addresses the Respondents’ reliance on the doctrine of exhaustion and internal mechanisms. He pleads that while he did sign a petition dated 4th May 2026 requisitioning a Special General Meeting, that petition was itself an attempt to trigger constitutional processes and does not negate his right to approach the Tribunal. He avers that internal mechanisms have been ineffective, selectively applied and controlled by the very organ whose actions are impugned—the Executive Committee. 3. He contends that the Special General Meeting cannot retrospectively validate an appointment made contrary to mandatory constitutional provisions and that the Tribunal, as a specialized body under the Sports Act, is the proper forum for determining the legality of the appointment and enforcing compliance with the Club’s Constitution. 4. In his Response to the 1 st Respondent’s Response, the Claimant further refines his legal position. He rejects the characterization of the Patron’s office as purely ceremonial and asserts that once the Club’s Constitution creates an office and prescribes a process for appointing the officeholder, that process must be followed. He pleads that the Patron is part of the Club’s governance architecture, sits on the Board of Trustees and symbolizes continuity and oversight. 5. He argues that treating the office as informal or discretionary undermines the Club’s Constitution and opens the door to arbitrary appointments. He also challenges the Respondents’ reliance on Articles 11 and 12(7), arguing that general managerial powers cannot override express provisions that allocate specific functions to specific organs. He pleads that a harmonious interpretation of the Club’s Constitution requires that Articles 5.4, 7, 8(1), 11 and 12(7) be read together in a manner that preserves the distinct roles of the Executive Committee and the Board of Trustees, rather than allowing general clauses to swallow specific ones. The Claimant’s witness statement reinforces these themes. 1. In summary, the Claimant’s case is that the Club’s 2019 Constitution establishes a clear governance architecture in which the Board of Trustees is the oversight organ and the only body empowered to appoint the Patron; that the Board of Trustees has never been constituted due to the Executive Committee’s failure to convene the AGM and nominate trustees; that in this context, the Executive Committee’s decision to confirm Hon. Owalo as Patron through a press release dated 9th November 2025 was an act taken without constitutional authority and in direct contravention of Articles 5.4, 7 and 8(1) of the Club’s Constitution; that attempts to resolve the matter internally were ignored; that the Sports Registrar has already confirmed the unconstitutionality of the appointment; and that internal mechanisms are incapable of curing a decision that is void *ab initio.* 2. In conclusion, the Claimant seeks to have the Tribunal declare that the confirmation of Hon. Eliud Owalo as Patron of Gor Mahia Football Club was unconstitutional, unlawful and therefore null and void *ab initio*, on the basis that it was undertaken by an organ lacking the constitutional mandate to do so. He prays that the Tribunal formally sets aside the said appointment and issues structural, timebound directions compelling the Executive Committee to convene an Annual General Meeting for the nomination and approval of trustees, the constitution of the Board of Trustees and the subsequent appointment of a Patron strictly in accordance with Articles 5.4, 7 and 8(1) of the Club’s Constitution. The Claimant also asks for costs of the suit. # RESPONDENTS’ CASE 1. The Respondents’ case is drawn exclusively from the pleadings filed by the 1st Respondent. The record shows that only the 1st Respondent entered appearance and defended the suit. # C1. The Memorandum of Response 1. The Memorandum of Response filed by the 1 st Respondent begins with a general traverse of all averments in the Claim, expressly denying each allegation unless specifically admitted. It affirms that the 1st Respondent is the duly elected Chairperson of Gor Mahia Football Club and a member of the Executive Committee, which he describes as the democratically constituted and operational governing organ responsible for the management and administration of the Club’s affairs. He states that all actions complained of were undertaken in the course of discharging this constitutional mandate and were done *bona fide* and in the best interests of the Club. 1. The Response acknowledges the existence of the Club’s 2019 Constitution and its provisions regarding the establishment and functions of a Board of Trustees. However, it asserts that the Board of Trustees has never been operationalized in practice and that, over several years, the Club has developed and consistently applied a governance framework in which the Executive Committee has exercised incidental and necessary functions to preserve continuity, stability and orderly administration. The Respondent emphasizes that this operational reality has long characterized the Club’s governance, including during the Claimant’s tenure as Secretary General, during which the Claimant participated in and acquiesced to this governance structure. 2. The 1 st Respondent relies on specific constitutional provisions—particularly Articles 9, 12(7) and 12(11)—which he states vest the Executive Committee with both express and residual authority to fill vacancies arising from death and to perform all acts necessary or desirable for the proper management of the Club. He contends that these provisions clothe the Executive Committee with lawful authority to act in circumstances requiring continuity, including the appointment of a Patron following the demise of the previous office holder. He argues that the Claimant is estopped from challenging a governance practice he previously endorsed and implemented. 3. The Response further invokes universally recognized principles of sports governance, including the autonomy of sporting organizations, the preservation of institutional continuity and the doctrine of necessity. The Respondent submits that the law does not contemplate paralysis of a sports organization due to structural omissions such as the absence of a Board of Trustees and that existing lawful organs are permitted to act to sustain the institution. He also relies on the doctrine of substantial compliance, arguing that actions undertaken in good faith and within the spirit of the Club’s Constitution should not be invalidated merely due to procedural imperfections. 4. The 1st Respondent states that the threshold for external intervention in the internal affairs of sports organizations is deliberately high and is only triggered by serious illegality, misconduct, or governance breakdown. He asserts that no such circumstances have been demonstrated in this case. He characterizes the office of Patron as purely honorary, ceremonial and symbolic, without executive authority or decisionmaking power and submits that the Claimant has not demonstrated any prejudice, injury, or violation of rights arising from the appointment. 1. The Response also raises several procedural objections. It states that the proceedings have been improperly instituted against the 1st Respondent in his personal capacity, despite the fact that the impugned actions were undertaken within the governance of a duly registered sports organization with its own legal capacity to sue and be sued. It further states that the Applicant failed to enjoin the Registrar of Sports, whose regulatory mandate would be directly implicated by the orders sought, thereby rendering the proceedings materially defective. 2. The 1st Respondent also contends that other necessary and affected parties were not joined, including stakeholders whose rights and interests would be impacted by the reliefs sought and that this omission offends principles of natural justice. 3. The Respondent additionally addresses the Claimant’s assertion regarding the tenure of the Executive Committee. He states that following the registration of the revised Constitution in 2019, the Club has consistently conducted elections in accordance with that Constitution, including elections held on 8th August 2020 and 13th April 2025. He asserts that the current Executive Committee was duly elected for a fixed term of four years and remains lawfully in office and that any claim suggesting imminent expiry of their tenure is erroneous and without factual or legal basis. He submits that there is no governance vacuum or institutional crisis warranting the drastic intervention sought. 4. The Response concludes by asserting that any perceived gaps in the Club’s constitutional framework are matters to be addressed internally through democratic processes such as annual general meetings and constitutional reform, rather than through external invalidation of actions undertaken in good faith. It reiterates that all actions complained of were undertaken *bona fide*, in accordance with longstanding governance practice and without any allegation or evidence of bad faith, fraud, or malice. The Respondent therefore prays that the Claim be dismissed with costs. # C2. The Notice of Motion dated 20th May 2026 1. The Notice of Motion dated 20th May 2026, supported by the affidavit of the 1st Respondent sworn on the same date, is also placed before the Tribunal. The Motion seeks substantive preliminary relief aimed at striking out the Claim for being premature, incompetent and an abuse of the Tribunal’s process. It further seeks a finding that the Claim offends the doctrine of exhaustion of internal dispute resolution mechanisms and is therefore improperly before the Tribunal. The 1st Respondent also prays for costs of the Application. 1. It identifies several grounds upon which this position is advanced. The Motion states that the Claimant did not exhaust internal dispute resolution mechanisms. It refers to Article 16 of the Club’s Constitution, which designates the General Meeting as the supreme organ of the Club. It states that a Petition dated 4th May 2026 requesting a Special General Meeting was already in circulation and that the Claimant was among its signatories. 2. The Motion and affidavit in support thereof jointly contend that the Claimant’s own evidence demonstrates that the issues raised in the Claim are properly suited for determination through the Club’s internal constitutional processes and are actively under consideration within those structures. The 1st Respondent argues that the simultaneous pursuit of internal processes and Tribunal proceedings renders the Claim premature, unripe and an abuse of process. He contends that the matters raised in the petition, namely, constitutional review, amendment and implementation, substantially mirror and are capable of fully resolving the grievances now placed before this Honourable Tribunal. 3. The 1 st Respondent relies on the doctrine of exhaustion, asserting that internal mechanisms must be invoked, pursued and exhausted before recourse to the Tribunal, save in exceptional circumstances. They state that international sports jurisprudence similarly affirms the primacy of internal remedies where they are available, active and capable of granting effective relief. In the present case, they assert that the internal mechanisms have not only been invoked but are actively underway and that there is no evidence that they are ineffective, biased, or incapable of resolving the dispute. 4. He further contends that the Claimant cannot approbate and reprobate by invoking internal constitutional mechanisms while simultaneously pursuing parallel proceedings before the Tribunal and that such conduct amounts to multiplicity of proceedings, is vexatious and constitutes an abuse of process. It is his view that the dispute is not ripe for determination because it is actively under consideration by the Club’s supreme organ, whose deliberations, including the proposed constitutional review and amendment initiated by the Claimant, may conclusively resolve or materially affect the matters before the Tribunal. 1. The 1st Respondent further states that the Tribunal has previously entertained disputes relating to the Club’s elections and governance, citing Tribunal Case E022 of 2024, Tribunal Case E015 of 2025 and Petition No. 56 of 2016. He invites the Tribunal to take judicial notice of these matters. The affidavit annexes an acknowledgment letter from the Sports Registrar dated 14th May 2025, marked *“Exhibit AR‑1,”* confirming entry of the current officials into the Registrar’s records following elections held on 13th April 2025. He therefore asserts that the officials’ four‑year term is lawfully running and any assertions to the contrary are misplaced. 2. The 1 st Respondent reiterates that the issues raised in the Claim are best addressed through ongoing internal democratic processes rather than premature external adjudication. He avers that no exceptional circumstances have been demonstrated to justify bypassing internal mechanisms. He further asserts that the office of Patron is ceremonial, honorary and non‑executive and therefore no prejudice arises if the issues are determined internally. He contends that the current Patron previously served as Deputy Patron during the Claimant’s tenure without objection, demonstrating that the Claimant has suffered no prejudice. 3. The Motion and affidavit in support conclude that it is in the best interest of justice for the Application to be allowed so that Gor Mahia Football Club may exercise autonomy over its affairs and rectify the situation internally before any external intervention. The 1st Respondent states that the suit is misconceived, bad in law and an abuse of process and invites the Tribunal to strike out the Claim or, in the alternative, stay the proceedings pending exhaustion of internal remedies. # INTERESTED PARTY’S CASE 1. The Interested Party’s case is contained solely in his Memorandum of Response filed in these proceedings. In his Response, the Interested Party identifies himself as a longstanding supporter and stakeholder of Gor Mahia Football Club. He states that he has been associated with the Club for over two decades and that he previously served as Deputy Patron. He further states that he was appointed Acting Patron on 16th October 2025 and subsequently confirmed as Patron on 1st November 2025. The Response presents this history as the factual background to his current position within the Club. 2. The Interested Party denies the allegations set out in the Claimant’s Statement of Claim. He describes the averments in paragraphs 6, 7, 8, 9 and 10 of the Claim as completely misplaced. He asserts that the Claimant has not demonstrated any wrongdoing on his part and has not shown how the confirmation of his appointment as Patron has harmed the Club or any of its members. He states that the Claimant’s challenge is not grounded in any factual prejudice. 1. The Response further contends that the Claimant failed to utilize the Club’s internal dispute resolution mechanisms before approaching the Tribunal. It notes that the Claimant was among the signatories to a petition dated 4th May 2026 requesting a Special General Meeting. It states that the Claimant ought to have pursued that process to its conclusion. The Interested Party therefore presents the Claimant’s approach to the Tribunal as premature in light of the ongoing internal process. 2. The Response also states that the Claimant has not demonstrated a *prima facie* case. It asserts that the Claimant has not shown how the reliefs sought would assist the Club or promote its governance. It further states that the Claimant has not demonstrated how the confirmation of the Patron has violated the Constitution or caused any prejudice. The Interested Party therefore deems the Claim as lacking substance. 3. The Interested Party describes the office of Patron as honorary and ceremonial. He contends that the position does not confer executive authority or decisionmaking power. He further states that the Claimant has not demonstrated how the appointment has affected the governance or administration of the Club. The Interested Party therefore deems the Claim as disproportionate to the nature of the office in question. The Interested Party concludes with a prayer that the Claim be dismissed with costs. # PARTIES’ SUBMISSIONS E1. Claimant’s submissions 1. The Claimant filed written submissions addressing both the Notice of Motion dated 20th May 2026 and the main Claim. In the submissions opposing the Motion, the Claimant begins by stating that the Respondent’s application does not meet the legal threshold for striking out a suit. He submits that striking out is a drastic remedy reserved for the clearest of cases and that the Respondent has not demonstrated that the Claim is frivolous, vexatious, scandalous or an abuse of the process of the Tribunal. He states that the issues raised in the Claim are substantive, constitutional and central to the governance of the Club and that they require full ventilation at a hearing rather than summary disposal. 1. The Claimant submits that the doctrine of exhaustion does not apply in the circumstances of this case. He states that the internal mechanisms relied upon by the Respondent are ineffective, controlled by the same organ whose actions are impugned and incapable of addressing the constitutional questions raised. He submits that the Special General Meeting process referenced by the 1st Respondent is not an internal dispute resolution mechanism capable of determining the legality of the appointment of the Patron. He states that the petition dated 4th May 2026 was itself an attempt to trigger constitutional processes and does not bar him from approaching the Tribunal. He further submits that a Special General Meeting cannot retrospectively validate an appointment made contrary to mandatory constitutional provisions. 2. The Claimant submits that the Registrar of Sports is not a necessary party to the proceedings. He states that the Registrar’s regulatory role does not require her joinder for the Tribunal to determine the legality of the appointment. He submits that the Respondent’s argument on nonjoinder is misplaced and does not affect the competence of the Claim. He further submits that the Respondent’s argument on misjoinder is equally misplaced, stating that the Respondent is properly sued in his capacity as Chairman of the Club and as the person who issued the press release confirming the appointment. 3. In the submissions on the main Claim, the Claimant reiterates that the Club’s 2019 Constitution vests the power to appoint the Patron exclusively in the Board of Trustees. He submits that the Board of Trustees has never been constituted and that the Executive Committee therefore lacked authority to confirm the Patron. He states that the Club’s Constitution is clear and unambiguous on this point and that reliance on operational realities cannot override express constitutional provisions. 4. The Claimant relies on the letter from the Sports Registrar dated 23rd March 2026. He submits that the Registrar confirmed that the Club has no Board of Trustees and that the appointment of the Patron was contrary to Article 5.4 of the Club’s Constitution. He states that the Registrar’s letter is an authoritative regulatory communication that supports his position. He further submits that the Respondent’s attempt to characterize the office of Patron as purely honorary and ceremonial is inconsistent with the Club’s Constitution, which places the Patron within the governance architecture of the Club. 5. The Claimant further submits that the appointment of the Patron is a constitutional act that must follow the procedure prescribed. He states that the Respondent’s confirmation of the Patron through a press release dated 9th November 2025 was unconstitutional, *ultra vires* and null and void *ab initio*. He submits that the Tribunal should declare the appointment invalid and should issue structural directions compelling compliance with the Club’s Constitution, including the convening of an Annual General Meeting for the nomination and approval of trustees and the constitution of the Board of Trustees. 6. The Claimant concludes his submissions by urging the Tribunal to dismiss the 1st Respondent’s Notice of Motion, uphold the Claim, declare the appointment unconstitutional and grant the reliefs sought. # E2. 1st Respondent’s Submissions 1. The 1st Respondent filed written submissions opposing both the Claim and the Claimant’s position on his Notice of Motion. He begins by stating that the dispute arises from the appointment of the Interested Party as Patron following a vacancy in that office. He submits that the Claimant’s challenge is misplaced because the Executive Committee acted within the practical governance circumstances prevailing at the Club since the adoption of the 2019 Constitution. 2. The 1st Respondent submits that although the 2019 Constitution introduced new governance structures, including the Board of Trustees, the evidence shows that the Board has never been constituted since the Constitution came into force. He states that the Club has nonetheless continued to operate under the Constitution, conducting elections, managing competitions, entering sponsorship arrangements and making administrative decisions through the Executive Committee, which has remained the only democratically elected and functional organ of the Club. 3. He relies heavily on the Claimant’s testimony during crossexamination, submitting that the Claimant made material admissions that undermine his own case. He states that the Claimant admitted that the Board of Trustees was never constituted during his tenure as Secretary General; that no steps were taken to operationalize it; and that numerous governance decisions, including appointments to constitutional offices, were made without the Board of Trustees. The 1st Respondent submits that these admissions demonstrate that the absence of the Board is a historical reality that predates the current Executive Committee and was accepted by successive administrations, including the Claimant’s. 4. The 1st Respondent submits that the Claimant’s own conduct shows that he participated in the governance of the Club under the same constitutional circumstances he now challenges. He argues that the Claimant cannot approbate and reprobate by accepting the governance framework during his tenure and later seeking to invalidate decisions made under identical circumstances. 5. The Respondent further submits that constitutional interpretation must take into account the practical realities of institutional governance. He argues that a constitution is intended to facilitate governance, not paralyze an institution and that the absence of one constitutional organ cannot be interpreted to invalidate every act of the Club since 2019. He states that such an interpretation would produce absurd consequences, including rendering unlawful every election, appointment, administrative decision and contractual obligation undertaken since the Constitution was adopted. 6. He submits that the Executive Committee acted out of constitutional necessity, as the only operational organ capable of ensuring continuity of the Club’s affairs. He relies on the doctrine of necessity and cites decisions of the High Court and the Sports Disputes Tribunal, including *Margaret Kisingo Muga & 21 Others v County Government of Mombasa*, *Kenya Fencing Federation v National Olympic Committee of Kenya* and *Nyawate v Gymnastics Federation of Kenya*, to argue that institutions may lawfully take necessary actions to preserve continuity where strict adherence to constitutional form is impracticable. 7. The 1 st Respondent further submits that the appointment of the Interested Party as Patron was made in good faith, to fill an honorary office and to ensure continuity during an ongoing constitutional transition. He argues that the appointment did not prejudice any member, did not displace any constitutional organ and was consistent with the manner in which the Club has operated since 2019. 8. On the doctrine of exhaustion, the 1st Respondent submits that the Claim is premature. He states that the Claimant himself initiated the process for convening a Special General Meeting to address the implementation of the Constitution and related governance issues. He argues that the Claimant cannot simultaneously invoke the Tribunal’s jurisdiction while bypassing the internal democratic processes he set in motion. He submits that the Special General Meeting is the appropriate forum for resolving both the appointment of the Patron and the broader constitutional questions affecting the Club. 1. The 1st Respondent relies on *Geoffrey Muthinja & Others v Samuel Muguna Henry & Others* to argue that members who voluntarily join an association must exhaust internal mechanisms before approaching judicial bodies. He submits that the Claimant’s failure to await the outcome of the Special General Meeting renders the Claim premature and contrary to the doctrine of exhaustion. 2. The 1 st Respondent concludes by submitting that the Claimant failed to discharge the burden of proof under Section 107 of the Evidence Act. He argues that the Claimant produced no evidence of bad faith, fraud, ulterior motive or deliberate constitutional avoidance by the Executive Committee. He submits that the Claimant’s admissions during crossexamination contradict his pleadings and demonstrate that the impugned appointment was made within a legitimate constitutional transition. He therefore urges the Tribunal to dismiss the Claim with costs. # E3. Interested Party’s submissions 1. The Interested Party begins by outlining his longstanding association with Gor Mahia Football Club, stating that he has been involved with the Club for over two decades, previously served as Deputy Patron, was appointed Acting Patron on 16th October 2025 following the demise of the late Rt. Hon. Raila Odinga and was subsequently confirmed as Patron on 1st November 2025. He presents this history as the factual background to his involvement and as evidence of continuity in the Club’s leadership. 2. The Interested Party submits that his confirmation as Patron was lawful, proper and consistent with the Club’s Constitution and governance practice. He states that the Executive Committee acted within its mandate under Articles 11 and 12(7) of the 2019 Constitution, which empower it to perform acts necessary for the sound management of the Club. He argues that the Club could not function without a Patron, particularly given the leadership vacuum created by the passing of the previous Patron and that the Executive Committee was therefore justified in confirming him to ensure continuity. 3. The Interested Party places significant emphasis on his contributions to the Club over the years. He submits that he has provided substantial financial and material support, including purchasing at least 40 tracksuits for players, acquiring a bus for the Club at a personal cost of Kshs. 23,000,000 and providing financial assistance exceeding Kshs. 50,000,000 over two decades. He states that these contributions demonstrate his commitment to the Club and justify his elevation to the office of Patron. 1. He further submits that since his appointment, he has played a pivotal role in stabilizing the Club both financially and competitively. He states that he secured a Kshs. 30,000,000 sponsorship from Plascon Paints and is currently leading negotiations with approximately ten corporate entities to secure additional sponsorship ahead of the Club’s participation in the CAF Champions League. He argues that any interference with his position at this stage would be detrimental to the Club’s preparations and financial stability. 2. The Interested Party also attributes recent improvements in the Club’s performance to his intervention. He submits that when he assumed office, the Club was struggling: languishing in 8th position, facing injuries, internal wrangles, inadequate squad depth and financial instability. He states that his leadership injected renewed confidence, improved squad morale, strengthened team spirit and contributed to Gor Mahia’s rise from 8th position in September to league leaders by February 2026. He further claims that his patronage played a role in the Club’s eventual capture of its historic 22nd league title. 3. He submits that his appointment facilitated squad strengthening, including recruitment of key players such as Lewis Bandi, Byrne Omondi, Mike Kibwage and Siraj Mohamed. He argues that these interventions demonstrate that his role as Patron is not merely ceremonial but practically beneficial to the Club’s competitive and administrative success. 4. The Interested Party contends that the Claimant has not demonstrated any wrongdoing on his part, nor any prejudice suffered by the Club or its members as a result of his appointment. He submits that the Claimant has failed to show how the confirmation of the Patron has harmed the Club or violated any member’s rights. He characterizes the Claim as disproportionate, misguided and lacking in good faith. 5. He further submits that the Claimant failed to exhaust internal dispute resolution mechanisms. He refers to the petition dated 4th May 2026 requesting a Special General Meeting and argues that the Claimant ought to have pursued that process to its conclusion. He states that the Claimant’s approach to the Tribunal was premature and in disregard of the Club’s internal procedures. 6. The Interested Party submits that the Claim is filed in bad faith, is an afterthought and constitutes an abuse of the Tribunal’s process. He alleges that the Claimant’s motives are personal rather than grounded in genuine governance concerns and that the Claimant has not acted with utmost good faith as required in matters touching on the governance of the Club. 7. He reiterates that the office of Patron is honorary and ceremonial, does not confer executive authority and does not interfere with the governance or administration of the Club. He submits that the Claimant has not demonstrated how the appointment has affected the Club’s constitutional structure or decisionmaking processes. 8. The Interested Party concludes his submissions by urging the Tribunal to dismiss the Claim with costs, stating that the Claimant has failed to establish a *prima facie* case, has not demonstrated any constitutional violation attributable to him and has not shown any prejudice warranting the Tribunal’s intervention. # ISSUES FOR DETERMINATION 1. Having considered the pleadings, evidence and submissions of the parties and having reviewed the Club’s Constitution and the applicable provisions of the Sports Act, the Tribunal is of the view that the following issues arise for determination: 1. *Whether the Claim is premature for failure to exhaust the Club’s internal dispute resolution mechanisms.* 2. *Whether the Executive Committee possessed constitutional authority to confirm the Interested Party as Patron of Gor Mahia Football Club on 1st November 2025, or at all.* 3. *Whether the absence of a constituted Board of Trustees rendered the impugned appointment unconstitutional, ultra vires, or void ab initio.* 4. *Whether the doctrine of constitutional necessity applies to validate the Executive Committee’s actions in the prevailing governance circumstances of the Club.* 5. *Whether the Claimant has demonstrated any prejudice, illegality, or violation of the Club’s Constitution arising from the impugned appointment.* 6. *Whether the Sports Registrar has any constitutional or statutory role in the appointment or election of the Club’s Board of Trustees.* 7. *Whether the reliefs sought are merited.* # ANALYSIS **Issue i: Whether the Claim is premature for failure to exhaust internal mechanisms** 1. The 1st Respondent and the Interested Party submit that the Claimant failed to exhaust internal mechanisms, relying principally on the Petition dated 4th May 2026 requesting a Special General Meeting (“SGM”). They argue that the Claimant ought to have pursued that process to its conclusion and that the Claim is therefore premature. 2. In opposition thereto, the Claimant submits that the doctrine of exhaustion does not apply in this case. He states that the internal mechanisms relied upon by the Respondents are ineffective, controlled by the same organ whose actions are impugned and incapable of determining the legality of the appointment. He further submits that the SGM is not a dispute‑resolution mechanism but a governance forum and that it cannot retrospectively address or cure the constitutional concerns he raised. 3. Internal mechanisms, for purposes of exhaustion, must be available, accessible and capable of providing a remedy for the grievance at hand. The Tribunal notes that the doctrine of exhaustion is not absolute. The Court of Appeal in **Geoffrey** # Muthinja & Another v Samuel Muguna Henry & 1756 Others held that exhaustion does not apply where internal mechanisms are unavailable, ineffective, or incapable of granting an appropriate remedy. The doctrine is intended to preserve the autonomy of internal governance structures, not to shield contested conduct from scrutiny where no functional internal remedy exists. 1. In this case, the Claimant wrote to the Executive Committee on 12 th November 2025 and again through counsel on 5th December 2025, formally challenging the appointment and requesting action. No response was issued. No internal committee was convened. No determination was made. No minutes, notices, resolutions, or other documentary records have been produced to demonstrate that the Respondents acted upon, considered, or deliberated on the Claimant’s complaints challenging the appointment or confirmation of the Patron. 2. The Tribunal further observes that the Petition for a Special General Meeting dated 4th May 2026 was initiated several months after the impugned appointment and long after the Claimant’s unanswered letters of 12th November 2025 and 5th December 2025. Its stated purpose, as evidenced in the record, was to facilitate constitutional review, amendment and implementation, including the development of timelines for future governance reforms. Crucially, the Petition is general in scope: it does not mention the appointment or confirmation of the Interested Party as Patron, does not refer to the press release of 9th November 2025 and does not request any inquiry, deliberation, or determination on the legality of that appointment. It was not framed as a dispute‑resolution mechanism, nor was it constitutionally empowered to adjudicate the Executive Committee’s decision to confirm the Interested Party as the Club’s Patron. 3. In any event, the Club’s Constitution prescribes the organs responsible for appointments and governance decisions and does not assign any role to a memberdriven petition or a Special General Meeting in initiating, reviewing, or addressing the confirmation of a Patron. The Petition dated 4th May 2026, being directed at general constitutional review and amendment, could not; either procedurally or constitutionally; provide a forum for addressing the Claimant’s concerns regarding the Executive Committee’s decision to confirm the Interested Party as Patron. 4. A process directed at prospective general constitutional reform cannot be said to provide a forum for addressing whether an earlier appointment complied with the Club’s Constitution as it stood at the time. The Tribunal therefore finds that the Petition for an SGM did not constitute an active or effective internal dispute‑resolution mechanism capable of addressing the Claimant’s complaint. Accordingly, the Tribunal finds that internal mechanisms were either unavailable, ineffective, or incapable of addressing the constitutional question raised. The Claim is properly before the Tribunal. # Issue ii: Whether the Executive Committee possessed constitutional authority to confirm the Patron 1. The Club’s Constitution is explicit. Article 5.4 provides: *“The Patron of the Club shall be appointed by the Board of Trustees…”* 1. Article 7 establishes the Board of Trustees as the top oversight governing organ of the Club. Article 8(1) reiterates that the Board of Trustees shall appoint the Patron. 1. The Club’s Constitution therefore vests the power to appoint the Patron exclusively in the Board of Trustees. The Executive Committee is not granted this power. Its functions are set out in Articles 9, 10, 11 and 12, none of which include the appointment of the Patron. 2. The 1 st Respondent argues that the Executive Committee acted within its mandate under Articles 11 and 12(7), which empower it to perform acts necessary for the sound management of the Club. He takes the view that the Club could not function without a Patron and that the Executive Committee therefore acted out of necessity. 3. The Tribunal finds that Articles 11 and 12(7) of the Club’s Constitution are general managerial provisions. They cannot override express constitutional provisions that allocate specific functions to specific organs. The doctrine of harmonious construction requires that general clauses be read in a manner that preserves the distinct roles of constitutional organs. The Club’s Constitution is clear. That the Patron must be appointed by the Board of Trustees. The Executive Committee does not possess that authority. 4. The Tribunal also notes that the Club’s Constitution does not contemplate the offices of “Acting Patron” or “Deputy Patron.” These titles do not appear anywhere in the constitutional text and have no foundation in the governance structure established therein. Their creation was therefore administrative rather than constitutional and they cannot be relied upon to infer, imply, or expand constitutional authority where none exists. 5. Most critically, the existence of such administrativelycreated roles cannot be used to justify, support, or bootstrap any process relating to the appointment or confirmation of a Patron, nor can they cure or regularize any procedural concerns raised by the Claimant. The Tribunal therefore treats these offices as constitutionally irrelevant for purposes of determining whether an internal mechanism existed to address the Claimant’s complaint. 6. The Tribunal also considers the legal effect of an appointment undertaken by an organ lacking constitutional mandate. The Claimant’s pleadings and submissions consistently frame the impugned confirmation as an act taken in direct contravention of Articles 5.4, 7 and 8(1) of the Club’s Constitution. In such circumstances, the doctrine articulated in **McFoy v United Africa Co. Ltd [1961] 3 All ER 1169** becomes relevant. Lord Denning’s well‑known formulation that: *”… If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay here. It will collapse.”* emphasizes that an act undertaken without legal foundation is void *ab initio* and incapable of producing lawful consequences. 1. Applying that principle here, the step taken by the Executive Committee in purporting to confirm the Interested Party as Patron is a fundamental flaw that goes to the root of constitutional authority. It is not a defect that can be cured, mitigated, or retrospectively regularized through administrative practice, historical precedent, or subsequent memberinitiated processes such as petitions or Special General Meetings. The Club’s Constitution does not assign any role to the Executive Committee in the appointment or confirmation of the Patron and therefore any act undertaken outside the constitutional framework is void and incapable of producing lawful effects. 2. The 1st Respondent and the Interested Party placed considerable emphasis on the Interested Party’s contributions to the Club, the operational realities under the 2019 Constitution and the ongoing petition for a Special General Meeting. However, none of these matters can retrospectively confer legality upon an act that was constitutionally impermissible at inception. The absence of the Board of Trustees which is an omission attributable to the Executive Committee’s own failure to convene the Annual General Meeting in that regard, cannot be invoked to justify the assumption of powers expressly reserved for that Board. In line with the McFoy doctrine, the impugned appointment must therefore be treated as a nullity incapable of producing legal rights or obligations and must be set aside accordingly. 3. The Tribunal therefore finds that the purported confirmation of the Patron by the Executive Committee was undertaken without constitutional mandate and is null and of no legal effect. # Issue iii: Whether the absence of a Board of Trustees rendered the appointment unconstitutional 1. It is a common and conceded position that the Board of Trustees has never been constituted since the adoption of the 2019 Constitution. The parties are in agreement that no nominations have ever been presented to an Annual General Meeting for approval, no Trustees have been appointed and no organ capable of exercising the constitutional functions assigned under Articles 7 and 8 has ever come into existence. The absence of a constituted Board of Trustees is therefore an undisputed structural governance gap that forms a critical part of the factual matrix against which the Executive Committee’s impugned actions must be assessed. 2. However, the absence of a constitutional organ does not permit another organ to assume its functions. Constitutional architecture is not optional and the nonoperationalization of a mandated organ does not create a vacuum that may be filled by administrative improvisation or institutional convenience. The Club’s Constitution establishes distinct organs with distinct mandates and those mandates cannot be transferred, appropriated, or exercised by another body merely because the proper organ has not been constituted. To hold otherwise would invert the hierarchy of governance, undermine the supremacy of the constitutional text and allow constitutional design to be displaced by expediency. The Executive Committee therefore cannot rely on the absence of the Board of Trustees as justification for exercising powers that the Constitution does not assign to it. 3. Even if the Tribunal were to disregard the blackletter text and consider the spirit of the Constitution, the conclusion would not change. The constitutional framework reflects a deliberate and coherent allocation of authority to distinct organs and its underlying spirit does not permit an organ to assume powers simply because the organ vested with those powers has not been operationalized. The Constitution demands fidelity both to its express provisions and to its structural design; neither allows the Executive Committee to step into the shoes of the Board of Trustees or to exercise functions that the Constitution does not confer upon it. 4. The Club’s Constitution does not contemplate a scenario in which the Executive Committee may appoint the Patron in the absence of the Board of Trustees. The absence of the Board does not create a vacuum that the Executive Committee may fill. The Club’s Constitution must be read as a whole and its structural safeguards must be respected. The Tribunal therefore finds that the absence of the Board of Trustees rendered the appointment *ultra vires*, unconstitutional and void *ab initio.* # Issue iv: Whether the doctrine of constitutional necessity applies 1. The 1 st Respondent relies heavily on the doctrine of necessity, **citing Margaret Kisingo Muga, Kenya Fencing Federation and Nyawate v Gymnastics Federation of Kenya.** He argues that the Executive Committee acted to preserve continuity during a constitutional transition. Both the 1st Respondent and the Interested Party further submit that the office of Patron is merely honorary or ceremonial and that the Executive Committee’s intervention was therefore benign and undertaken to maintain institutional stability. 1. The Tribunal accepts that the doctrine of necessity may apply in exceptional circumstances to prevent institutional paralysis. However, necessity is a narrow and exceptional doctrine. It cannot be invoked to override express constitutional provisions, nor can it validate actions taken in direct contravention of the Constitution. Necessity operates only where failure to act would stifle the institution or render it incapable of functioning. 2. The doctrine applies only where all the following conditions are met: strict adherence to constitutional form is impossible; the action taken is indispensable to preserve the institution; the action does not usurp powers expressly reserved for another organ; the action is temporary, exceptional and directed at restoring constitutional order. 3. None of these conditions are satisfied in the present case. The Club’s Constitution expressly reserves the appointment and confirmation of the Patron to the Board of Trustees but the Executive Committee assumed that power permanently, not temporarily. More importantly, the action did not restore constitutional order; it entrenched constitutional non-compliance. Indeed, the Executive Committee has, for several years, failed to convene an Annual General Meeting to constitute the Board of Trustees, thereby perpetuating the very constitutional vacuum it now seeks to rely upon. 4. Crucially, the 1st Respondent’s own submissions undermine the invocation of necessity. If, as he contends, the office of Patron is purely honorary and ceremonial, then the absence of a Patron or a delay in appointing one pending the lawful constitution of the Board of Trustees cannot render the Club inoperative, paralyze its governance, or create any urgency warranting exceptional intervention. The Club cannot be said to face constitutional or operational paralysis merely because an honorary office remains vacant. 1. The 1 st Respondent cannot simultaneously argue that the office is ceremonial and yet claim that its immediate confirmation was necessary to avert institutional collapse. 2. The Tribunal also observes that the Club’s Constitution was adopted in 2019 and it is now 2026, which is more than seven years later. The Respondents and the Interested Party cannot plausibly be heard to claim that the Club remains in a state of constitutional transition. Even though the Constitution does not prescribe a specific duration for transition, a period of seven years is inordinately long and points not to unavoidable delay but to a sustained reluctance by the Respondents to initiate the steps necessary to constitute the Board of Trustees. A constitutional transition cannot be stretched indefinitely to justify actions taken outside the constitutional framework. 3. Necessity cannot be invoked to justify a constitutional breach that the Executive Committee itself contributed to and perpetuated by failing to convene an AGM to constitute the Board of Trustees. The doctrine is one of last resort. It cannot be relied upon where lawful alternatives exist. In this case, a lawful alternative did exist. That is, convene the AGM and constitute the Board of Trustees. The Executive Committee chose not to do so. 4. The Tribunal therefore finds that the doctrine of constitutional necessity does not apply. # Issue v: Whether the Claimant has demonstrated any prejudice, illegality, or violation of the Club’s Constitution arising from the impugned appointment 1. The 1st Respondent and Interested Party submit that the Claimant has not demonstrated any prejudice arising from the confirmation of the Patron, arguing that the office is honorary and ceremonial and does not confer executive authority. They contend that the Claimant has not shown how the confirmation has harmed the Club or any of its members and that the Claim is therefore disproportionate to the nature of the office. 2. The Tribunal does not accept this submission. Prejudice, in the context of constitutional governance, is not confined to personal injury or financial loss. Prejudice arises where a constitutional organ acts outside its mandate, thereby undermining the governance architecture established by the Constitution. Articles 5.4, 7 and 8(1) of the Club’s Constitution expressly reserve the appointment of the Patron to the Board of Trustees. The Executive Committee’s unilateral confirmation of the Patron, in the absence of a constituted Board of Trustees, constitutes a violation of the Club’s Constitution. 1. Further, the characterization of the Patron’s office as honorary and ceremonial reinforces the Claimant’s position. If the office is ceremonial, then its vacancy cannot cause operational paralysis and there is no urgency that would justify bypassing the constitutional process. The prejudice lies in the Executive Committee’s assumption of powers expressly reserved for another organ, thereby entrenching constitutional non-compliance and perpetuating a governance vacuum that has existed since 2019. 2. The Tribunal therefore finds that the Claimant has demonstrated both illegality and constitutional prejudice arising from the impugned appointment. # Issue vi: Whether the Sports Registrar has any constitutional or statutory role in the appointment or election of the Board of Trustees 1. The Claimant seeks, in prayer (d) of the Statement of Claim, an order directing the Registrar of Sports to assist by inviting a credible body that will oversee the elections and/or appointment of the Board of Trustees. The Tribunal must determine whether the Registrar has any constitutional or statutory mandate to participate in, supervise, or facilitate the appointment of trustees. 2. The Tribunal has examined the Club’s 2019 Constitution. Articles 7 and 8 provide that the Board of Trustees shall consist of seven members, five of whom shall be nominated for approval by the AGM and that the Board of Trustees shall appoint the Patron. These provisions are clear and self-executing. The nomination, approval and constitution of the Board of Trustees is an internal function of the Club’s membership acting through the Annual General Meeting. The Club’s Constitution does not assign any role to the Sports Registrar in this process. 3. The Tribunal has also considered the Sports Act, 2013 and the Sports Registrar Regulations, 2016. The Registrar’s mandate is regulatory, including registration of sports organizations, maintenance of records, monitoring compliance and issuing compliance notices. The Registrar is not sanctioned to convene AGMs, supervise internal elections, invite external bodies to oversee appointments, or participate in the constitution of governance organs created by a club’s internal constitution. 1. The Registrar’s letter dated 23rd March 2026 refers to several issues raised by the Claimant through his legal counsel, one of them being the question of the absence of a constituted Board of Trustees and the appointment of the Interested Party contrary to Article 5.4 of the Club’s Constitution. The Registrar indicates that she will need to conduct due diligence on those matters. However, the letter does not and cannot, assign to the Registrar any role in appointing trustees. It is merely a regulatory communication responding to concerns raised by the Claimant, not a directive to participate in internal governance. 2. To grant the Claimant’s prayer would be to confer powers on the Registrar that neither the Sports Act nor the Club’s Constitution contemplate. The Tribunal can neither direct the Registrar to invite a credible body to oversee trustee appointments, nor can it assign the Registrar supervisory authority over the Club’s AGM or the constitution of the Board of Trustees. 3. The Tribunal therefore finds that the Registrar of Sports has no constitutional or statutory role in the appointment or election of the Board of Trustees of Gor Mahia Football Club. The Claimant’s prayer (d) seeking such involvement is declined. 4. For avoidance of doubt, the Registrar’s role is limited to receiving and recording the Club’s post AGM filings in accordance with the Sports Act and updating the Club’s records once the Board of Trustees is lawfully constituted. # Issue vii: Whether the reliefs sought are merited 1. The Claimant seeks declaratory relief, structural orders compelling the constitution of the Board of Trustees and the setting aside of the impugned confirmation. The Tribunal has already found that the Executive Committee lacked constitutional authority to confirm the Patron; that the confirmation was undertaken in direct contravention of Articles 5.4, 7 and 8(1); and that the doctrine of necessity does not apply. 2. Reliefs aimed at restoring constitutional order are therefore merited. The Tribunal is empowered under section 58 of the Sports Act to issue structural orders to ensure compliance with the Constitution of a sports organization. The orders sought by the Claimant are appropriate, proportionate and necessary to restore lawful governance within the Club. However, as determined under Issue vi, the Tribunal cannot grant reliefs that assign to the Sports Registrar powers she does not possess under the Sports Act or the Club’s Constitution. The Tribunal therefore finds that the reliefs sought; save for the prayer seeking the Registrar’s involvement, are merited. # DISPOSITION 1. For the reasons set out in the foregoing analysis and having found that the Executive Committee lacked constitutional authority to confirm the Patron; that the confirmation of Hon. Eliud Owalo was undertaken in direct contravention of Articles 5.4, 7 and 8(1) of the Club’s Constitution; that the impugned act is void ab initio and incapable of producing lawful consequences; and that the doctrine of constitutional necessity does not apply, the Tribunal hereby issues the following final orders: 2. A declaration is hereby issued that the confirmation of Hon. Eliud Owalo as Patron of Gor Mahia Football Club, communicated through the press release dated 9th November 2025, was unconstitutional, *ultra vires* and undertaken by an organ lacking the constitutional mandate to do so. 3. Consequently, the said confirmation is hereby declared null and void *ab initio and* of no legal effect whatsoever. For avoidance of doubt, the Interested Party shall not hold or exercise the office of Patron unless and until lawfully appointed in accordance with the Club’s Constitution. 4. An order is hereby issued directing the Executive Committee of Gor Mahia Football Club to convene an Annual General Meeting within sixty (60) days of the date of this Judgment, for the sole purpose of receiving nominations for trustees, presenting those nominations to the membership and constituting the Board of Trustees strictly in accordance with Articles 7 and 8 of the Club’s Constitution. 5. Upon constitution of the Board of Trustees, the appointment of the Patron shall be undertaken strictly in accordance with Article 5.4 of the Club’s Constitution. No other organ of the Club shall purport to exercise this function. 6. Costs of the proceedings are awarded to the Claimant payable by the Respondents jointly and severally. 1. This file is hereby marked as closed. # IT IS SO ORDERED. **Dated, Signed and Delivered virtually at Nairobi this 4th day of August 2026.** 2 SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. PERIS MUKOKO HON. EDDIE OMONDI HON. VICTOR OMWEBU** Sports Disputes Tribunal Sports Disputes Tribunal Date: 2026-08-04 17:40:43