[2023] KESDT 295 (KLR)

Ayisi v Gor Mahia Football Club (Appeal E004 of 2023) [2023] KESDT 295 (KLR) (Civ) (23 May 2023) (Decision)

Neutral citation: [2023] KESDT 295 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Civil

Appeal E004 of 2023

E.Sifuna-Shiveka, Chair, E. G. Kiplagat & Peter Ochieng, Members

May 23, 2023

Between

Clifford Miheso Ayisi

Claimant

and

Gor Mahia Football Club

Respondent

Decision

Panel 1. Mrs. Elynah Sifuna-Shiveka – Panel Chairperson

2. Mr. Gichuru Kiplagat - Member

3. Mr. Peter Ochieng – Member

Appearances 1. The Applicant was represented by Weru Advocate from the firm of Weru Munyoro & Co. Advocates.

2. The Respondent was represented by Jemimah Bob Advocate from the firm of Wambilianga Majani & Associates.

The Parties 1. The Applicant is a football player.

2. The Respondent is a football club in Kenya and a member of the Football Kenya Federation.

The Case 3. The Claimant filed a claim dated 02/02/2023 claiming that he was employed by the Respondent club on 09/08/2019 vide a contract as a football player at a gross monthly salary of Kshs. 150,000 exclusive of other allowances.

4. The Claimant avers that upon joining the Respondent Club he carried out his duties as required by the contract and FIFA football laws. In particular, he took part in all games that he was called upon to play and attended training sessions as scheduled.

5. The claimant avers that his salary was payable monthly and he did not consent to his salaries being withheld by the Respondent whose actions is in breach of Clause 8 of the Player Agreement Contract dated 09/08/2019.

6. The claimant further avers that the contract required the Respondent to pay him Kshs. 1,500,000 as signing fee in three equal monthly instalments on 15/08/2019,15/09/2019 and 15/10/2019. The contract also required payment of base allowance of Kshs.300 per day and Kshs. 5,000 allowance for winning a game.

7. The claimant contends that all these dues have not been paid and which makes a cumulatively total of Kshs. 2,225,500 together with interest at the rate of 14. 5% from July 2021. This, he noted was in total breach of Article 12bis of the FIFA football laws, Article 41 of the constitution of Kenya and the Employment Act.

8. The claimant prayed for the following remedies:a.Judgment against the Respondent for a sum of Kshs. 2,225,500. b.Compensation for unfair labour practices.c.Interests on (a) above from July,2021 until payment in full.d.Costs of this suit.e.Any other relief that this tribunal may deem appropriate to grant.

The Response 9. The Respondent filed a memorandum of response and a preliminary objection both dated 17/04/2023 against the claim. The grounds of the preliminary objection are:a.That the Tribunal lacks jurisdiction to hear the entire claim on account of the provisions of section 90 of the Employment Act,2007. b.That the claim for signing bonus is time-barred having been brought before this tribunal after over three years since it became due and payable.c.That the claim for unpaid salaries for October 2020 to July 2021 amount to continuing injuries and are consequently time-barred as they have been brought before this tribunal over one year since the cause of action accrued.d.That the claim for unpaid winning allowances for the 2019/2020 and 2020/2021 seasons amount to continuing injuries and are consequently time-barred as they have been brought before this tribunal over one year since the cause of action accrued.

Hearing 10. The matter was heard on 25/04/2023 and the parties were ordered to file written submissions. The tribunal fixed the matter for mention for 02/05/2023 to confirm compliance. The claimant filed written submissions dated 02/05/2023 while the Respondent filed written submissions dated 04/05/2023.

11. When the matter came up for mention on 02/05/2023 to confirm whether parties had filed written submissions, the Tribunal directed that the ruling shall be reserved for 16/05/2023. However, the written submissions were received by the tribunal on 16/05/2023 and the decision was rescheduled for delivery for 23/05/2023.

Discussion 12. Having taken into account the parties’ pleadings written and oral submissions, the Tribunal states as follows:

13. At the outset the Tribunal has looked at the grounds raised by the preliminary objection dated 17/04/2023 and the tribunal is of the view that they can all be crystalized into one question for determination which is, whether the Tribunal has jurisdiction to hear this case.

Whether the Tribunal has jurisdiction to hear this case. 14. The jurisdiction of this Tribunal stems from Section 58 of the Sports Act which provides 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.”

15. Section 59 of the Sports Act states further that:“The Tribunal may, in determining disputes apply alternative dispute resolution methods for sports disputes and provide expertise and assistance regarding alternative dispute resolution to the parties to a dispute.”

16. The current dispute stems from a contract dated 09/08/2019 entered between the Claimant and the Respondent. This being a claim arising from a football player who had been contracted by a football club we find that the dispute falls within the definition of section 58(b) as “other sports related disputes “as determined by this Tribunal in Dennis Kadito v. Sofapaka FC (SDT Appeal No.23 of 2016 and in Mwinyi Kibwana Shami v KCB FC(SDT No.22 of 2019).

17. The question of jurisdiction was determined in the celebrated case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 where the Court stated that:-“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 downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

18. John Bacroft Saunders in a treatise headed Words and Phrases Legally Defined-Volume 3: I-N the Author states at page 113 the following on the issue of jurisdiction:-“By jurisdiction is meant the authority which the Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the Statute, Charter or Commission under which the Court is constituted, and may be extended or restricted by the like means. If no restrictions or limits is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the nature of actions and matters of which the particular Court has cognizance or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior Court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the Court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the Court or tribunal has been given power to determine conclusively whether the facts exists. Where a Court takes it upon itself to exercise a jurisdiction which it does not possess its decisions amounts to nothing. Jurisdiction must be acquired before Judgment is given.”

19. However, the test on what constitutes a preliminary objection is now settled law. In Mukisa Biscuits Manufacturing Co Ltd v West End Distributors[1969] EA 696 Sir Charles Newbold JA stated that:“…a preliminary objection consists of a point of law which has been pleaded or which raises by clear implication out of the pleadings and which if granted as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or plea of limitation or submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration….it raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” (Emphasis Ours).

20. The Respondent relies on section 90 of the Employment Act to challenge the tribunal’s jurisdiction. This section provides that:“Notwithstanding the provisions of section 4(1) of the Limitations of Actions Act (Cap 22) no civil action or proceedings based or arising out of this Act or contract of services in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in case of continuing injury or damage within twelve months next after the cessation thereof.”

21. The dates when the causes of action arose are deeply contested by both parties. On the one part the claimant states that his employment contract dated 09/08/2019 ended on 09/08/2021 and therefore when he filed his case before the tribunal on 07/2023 he was within the three year period contemplated under section 90 of the Employment Act.Conversely,the Respondent states that the claim became due on or about October 2019 yet the suit was filed on 07/02/2023 outside the three year limitation period.

22. On the issue of continuing injuries the two parties are still at variance as to when time starts running under the above statutory provision. For example, the Respondent states that the claim for unpaid salaries for October 2020 to July 2021 amount to continuing injuries and are consequently time-barred as they have been brought before this tribunal over one year since the cause of action accrued. On the other hand, the claimant disagrees and contends that the unpaid salaries do not constitute continuing injuries as claimed by the Respondent and therefore not barred by the 1 year statutory limitation for continuing injuries as contemplated under section 90 of the Employment Act.

23. In sum, we find that the preliminary objection dated 17/4/2023 does not raise pure points of law. The facts of the claim are highly contested and have to be ascertained. It is therefore our finding that this tribunal has jurisdiction to hear the claim.

Conclusion 24. It is therefore in consideration of this, as well as the parties’ submissions that the Tribunal makes the following orders:a. The preliminary objection dated 17/04/2023 is dismissed;b. The matter will be fixed for hearing;c. Costs in the cause.

DATED AT NAIROBI THIS 23RD DAY OF MAY, 2023. ............................................Mrs. Elynah Sifuna-Shiveka, Panel Chairperson.............................................Mr. Gichuru Kiplagat, Member.............................................Mr. Peter Ochieng, Member