[2022] KEHC 15208 (KLR)

Awino - Sectretary of Kajiado County Cricket Association v Cabinet Secretary for Ministry of Sports, Culture & Heritage & 4 others; Cricket Kenya (Interested Party) (Judicial Review Application E002 of 2022) [2022] KEHC 15208 (KLR) (20 July 2022) (Ruling)

Neutral citation: [2022] KEHC 15208 (KLR)

Republic of Kenya

In the High Court at Kajiado

Judicial Review Application E002 of 2022

SN Mutuku, J

July 20, 2022

IN THE MATTER OF AN APPLICATION FOR LEAVE BY LEONE DE LOVE, TO APPLY FOR JUDICIAL REVIEW ORDERS OF CERTIORARI MANDAMUS AND PROHIBITION AND IN THE MATTER OF ARTICLE 23 OF THE CONSTITUTION OF KENYA AND IN THE MATTER SECTION 7 OF THE FAIR ADMINISTRATIVE ACTION NO 4 OF 2015

Between

Joseph Awino Sectretary of Kajiado County Cricket Association

Applicant

and

Cabinet Secretary for Ministry of Sports, Culture & Heritage

1st Respondent

Joyce Oluoch - Chairperson of the Kenya Cricket Normalization Committee

2nd Respondent

Dr. Kenneth Wayne Mutuma The Chairperson Of The Independent Election Panel for Cricket Kenya

3rd Respondent

Attorney General

4th Respondent

Sports Registrar

5th Respondent

and

Cricket Kenya

Interested Party

Ruling

The preliminary objection 1. The ex parte applicant filed notice of motion dated March 30, 2022 seeking judicial review orders of certiorari, prohibition and mandamus against the 1st to 5th respondents. To that notice of motion, the 1st to 5th respondents raised a preliminary objection (PO) dated June 6, 2022 on the following grounds:i.That the application dated March 30, 2022 offends section 58 of the sports Act, 2013. ii.That the suit herein is res subjudice as the same issues are being litigated in the Sports Dispute Tribunal SDTSC Cause No E015 OF 2022. iii.That the application is therefore fatally defective and is liable to be struck off in limine.

2. This court directed the parties to argue the PO first through oral submissions. Mr Kariuki appeared for the 1st to 5th respondents. Mr Kirimi appeared for the ex parte applicant. The matter came up for oral arguments on June 28, 2022. Mr Obwogi for the interested party did not attend the court session.

Submissions 3. It was Mr Kariuki’s arguments that the judicial review proceedings offend section 58 of the Sports Act, No 25 of 2013. He submitted that there are similar proceedings before the sports tribunal in Cause No E015 of 2022 and that the applicant herein has not exhausted his claim before the tribunal before coming to this court. He relied on the Fair Administrative Actions Act section 9(2) to emphasize that point. He submitted that this instant suit offends the doctrine of exhaustion by other organs before moving to court. He citedSpeaker of National Assembly vs Njenga Karume [2008] 1KLR 425 to the effect that that a party must first exhaust the other processes availed by other statutory dispute resolution organs, which are by law established, before moving to the High court.

4. It is his submission that the claimant is challenging the elections held on February 26, 2022 and assumption of office of the officials while before the tribunal the orders sought included orders declaring the elections as unlawful and that the officials should not be registered. He argued that this matter is therefore sub judice as the issues in this matter are under active consideration by the tribunal. Counsel relied on section 6 of the Civil Procedure Act and asked the court to uphold the preliminary objection.

5. Mr Kirimi counsel for the applicants opposed the preliminary objection. He argued that section 58 of the Sports Act does not apply in this case; that there was no agreement between parties to refer the matter to the tribunal; that the application is not an appeal from the decision of the sports registrar; that powers of the sports registrar are found on section 45 and rule 5 of the Sports Act; that the sports registrar is not empowered to do any act complained of in this matter.

6. It was further submitted that the exparte application seeks orders against the decision of the Cabinet Secretary Sports and that this is not a person listed under section 58 of the Sports Act from whose decision is appealable to the tribunal. He submitted that this court has jurisdiction to entertain this matter under section 8 of the Fair Administrative Actions Act because it is a matter emanating from decisions of the Cabinet Secretary who is a person capable of making administrative decisions. He cited Moses Tanui & 10 others v Athletics Kenya & 4 others [2019] eKLR.

7. Counsel submitted that no material has been presented before court to enable this court determine whether this matter is sub judice or not and that the prayers sought in this judicial review are different from the matter before the tribunal and hence sub judice rule does not apply.

Determination 8. My concern in this PO is whether judicial review proceedings herein offend section 58 of the Sports Act, and secondly, whether sub judice rule applies in this matter.

9. A preliminary objection has the effect of disposing of the suit at the preliminary stage. In Mukhisa Biscuit Manufacturing Co Ltd vs West End Distributors Ltd 1969 EA 696; the court stated as follows in respect of a preliminary objection:'So far as I’m aware, 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.'

10. Section 58 of the Sports Act establishes the jurisdiction of the Sports Tribunal as follows: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; and(c)Appeals from decisions of the registrar under this Act.

11. This matter is not an appeal from decisions of the registrar; it is not an appeal from decisions made by national sports organizations or umbrella national sports organization, whose rules specifically allow for appeals to the tribunal and parties herein have not agreed to refer their disputes to the tribunal, at least I have no evidence to that effect. It is therefore clear that this matter does not fall under that section.

12. Section 9(1) (2), (3) and (4) of the Fair Administrative Action Act, No 4 of 2015 allows any persons who is aggrieved by an administrative action to apply for judicial review to this court. This section does not allow this court to review an administrative action or decision under the Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any written law are first exhausted. Having found that the proceedings herein do not fall under section 58 of the Sports Act, then this instance suit does not offend the doctrine of exhaustion.

13. After due consideration of this matter, it is my view that the applicant did not have any other remedy against the administrative actions of the 1st respondent other than to seek orders from this honourable court, as section 58 of the Sports Act does not provide for such remedy.

14. Turning on the issue of sub judice, section 6 of the Civil Procedure Act provides as hereunder:'No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.'

15. This provisions is echoed in Republic v Registrar of Societies - Kenya & 2 Othesr Ex-Parte Moses Kirima & 2 Others [2017] eKLR where the court held that:'Therefore for the principle to apply certain conditions precedent must be shown to exist: First, the matter in issue in the subsequent suit must also be directly and substantially in issue in the previously instituted suit; proceedings must be between the same parties, or between parties under whom they or any of them claim, litigating under the same title; and such suit or proceeding must be pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed'

16. Further in Kampala High Court Civil Suit No 450 Of 1993 - Nyanza Garage vs Attorney General, the court found that:'In the interest of parties and the system of administration of justice, multiplicity of suits between the same parties and over the same subject matter is to be avoided. It is in the interest of the parties because the parties are kept at a minimum both in terms of time and money spent on a matter that could be resolved in one suit. Secondly, a multiplicity of suits clogs the wheels of justice, holding up resources that would be available to fresh matters, and creating and or adding to the backlog of cases courts have to deal with. Parties would be well advised to avoid a multiplicity of suits.'

17. I have read the pleadings instituted in the tribunal under Appeal No E015 of 2022. The claimant in that case is different from the one in the instant suit. Some of the parties are similar but, in this matter, the 1st respondent and the 2nd respondent are the Cabinet Secretary for Ministry of sports, Culture and Heritage and the chairperson of the cricket Kenya normalization committee.

18. Further, the main issues being addressed in the suit before the tribunal are: that the 2nd to 8th respondents had no mandate to conduct the elections held on February 26, 2022, that the elections were unlawful and an order barring the recognition of the elected officials. In this instant suit, the prayers sought are quashing the decision made on September 15, 2021 to extend the mandate of the 2nd respondent (chairperson of cricket Kenya); the order for January 19, 2022 to call for elections of the 1st interested party and to establish the 3rd respondent for purpose of conducting the said elections and to prohibit the respondents from managing the affairs of 1st interested party including carrying out elections.

19. After considering submissions by both counsel and the applicable law as well as authorities, it is my view that the tribunal does not have jurisdiction to deal with the administrative decision of the Cabinet Secretary. This is not one of the matters that fall under the jurisdiction of that tribunal. I conclude by stating that this matter is not sub judice for the reasons I have given.

20. This brings me to the conclusion that this PO is not merited and must fail. I hereby dismiss it and order that costs be in the cause.

21. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 20TH JULY 2022. S. N. MUTUKUJUDGE