[2023] KESDT 374 (KLR)

Cherop (Suing as Treasurer of Baringo County Football Association) v Mwendwa, FKF President & 2 others; Kayole Starlets & 5 others (Interested Parties) (Petition E016 of 2023) [2023] KESDT 374 (KLR) (Commercial & Admiralty) (11 July 2023) (Ruling)

Neutral citation: [2023] KESDT 374 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Commercial and Admiralty

Petition E016 of 2023

John M Ohaga, Chair

July 11, 2023

Between

Samson Cherop (Suing as Treasurer of Baringo County Football Association)

Petitioner

and

Nick Mwendwa, FKF President

1st Respondent

FKF Leagues And Competitions Committee

2nd Respondent

Barry Otieno, FKF Secretary General & CEO

3rd Respondent

and

Kayole Starlets

Interested Party

AFC Leopards SC

Interested Party

Mofa FC

Interested Party

Mwatate United FC

Interested Party

Kajiado FC

Interested Party

Murang'a Seals FC

Interested Party

Ruling

A. The Parties 1. The Petitioner is the treasurer of Baringo County Football Association, an entity registered as a sports organization by the Office of the Sports Registrar under the Sports Act, 2013.

2. The 1st Respondent is the President of Football Kenya Federation.

3. The 2nd Respondent is the Secretary General of Football Kenya Federation.

4. The 3rd Respondent is a committee established under Article 46 (1) (b) of the Constitution of Football Kenya Federation.

5. The Interested Parties are members of Football Kenya Federation who play in different tiers of leagues managed by Football Kenya Federation.

B. Background 1. The Petitioner filed a Petition dated May 29, 2023 seeking reliefs for; a declaration that the docking of additional points from those accumulated by the respective clubs in 2022/2023 season is null and void; an order directing FKF Leagues and Competition Committee, employees and / or agents to amend the table standings and reinstate the points unlawfully deducted; a declaration that the FKF Rules and Regulations, 2019 are null and void for lack of public participation.

2. Together with the Petition was a Notice of Motion dated May 29, 2023 ('the Application') seeking conservatory orders to stop the Football Kenya Federation, their employees and agents from publishing final table standings for the season 2022/ 2023 until the Petition is determined.

3. In response, the Respondents filed a Notice of Preliminary Objection dated June 19, 2023 challenging the jurisdiction of this Tribunal to hear the Petition which Preliminary Objection is the subject of this ruling.

C. The Respondents' Case 1. It was the Respondents' contention that the Tribunal lacks jurisdiction to determine the matter on the premise that the Petitioner had not exhausted the available internal dispute resolution mechanisms. They argued that the Petitioner ought to have submitted the dispute to the established FKF Appeals Committee before approaching the Tribunal.

2. They relied on Rule 10. 3.1 of the Rules and Regulations governing Kenyan Football which provide that , Save where the right of appeal is restricted in terms of any FKF Statute and/or these Rules, any party directly affected by any decision made or penalties imposed by any employee or official of FKF and/or any FKF Committee shall have the right to appeal to the FKF Appeals Committee.

3. Further, that Rule 10. 3.4 of the FKF Rules and Regulations 2019, provides for the manner and procedure for lodging an appeal by a party aggrieved by the decisions of FKF and that letter writing by the 6th Interested Party are not forms of Appeal.

4. During the hearing of the Preliminary Objection, Counsel for the Respondents Mr. Munyendo invited the Tribunal to its decision in the case, Migori Youth Football Club & 8 others v FKF Transition Committee; Leagues and Competition Committee & 5 others (Interested Party) (Petition E021 of 2021) [20221 KESDT 679 (KLR) (Civ) (23 August 2022) (Decision) highlighting that there exists an Appeals Committee to hear and determine any complaints raised by aggrieved members and raised a scenario where the 1 st Interested Party had exercised their right to appeal and lodged an appeal with FKF Appeals Committee, which appeal was resolved by the Committee.

5. It was their submission that the Petitioner and the 6th Interested Party had failed to exercise their right of appeal or demonstrated any attempt to do so.

D. The Petitioner's Case 6. The Petitioner stated in his submissions that the Tribunal has the jurisdiction to hear and determine the matter as the illegal docking of points from football clubs is a sports related matter.

7. In response to the Respondents' contention that he had not exhausted the internal dispute resolution mechanisms, particularly at the Leagues and Competitions Committee, the Petitioner argued that since he was challenging the leadership of FKF, he was apprehensive that the available avenues could not have afforded him a fair hearing.

8. The Petitioner further argued that the Respondents had already dismissed his efforts in raising his complaint on the illegal docking of points on the basis that he had no standing to raise the complaint as he was not a member of FKF or any of its affiliates. He cited the example of the 6th Interested Party, Murang'a Seals FC, who wrote a letter and the Respondents responded stating that a letter is not a form of an appeal.

9. Additionally, he contested the legality of the Football Kenya Federation Rules and Regulations of 2019 citing that there was no public participation during their enactment and hence null and void. The Petitioner urged the Tribunal to revert to the 1998 Rules since the prevailing Rules and Regulations punish the football clubs three times for the same offence. The Petitioner demonsfrated this position by giving the example of Mwatate FC in computing the points lost stating that the action of docking offends the principle of double jeopardy, causing clubs to have negative points and disadvantaging them from any recovery.

E. The 6Th Interested Party's Case 10. The 6th Interested Party submitted that it had made efforts to have its complaints addressed by the Respondents on two occasions being March 21, 2023 and March 23, 2023. These complaints related to matches with Shabana FC. However, FKF had turned them down failing to afford them an opportunity to be heard.

11. They urged the Tribunal not to uphold the Preliminary Objection as it would be prejudicial to them since the three docked points would determine whether the 6th Interested Party wins or loses the division. They argued at the hearing that had their points not been docked, they would be top of the league standings.

F. Issue For Determination 12. The sole issue for determination in this ruling is whether this Tribunal has jurisdiction to hear and determine this matter.

G. Analysis 13. I have considered the submissions and arguments made by the Respondents, the Petitioner and the 6th Interested Party. The Respondents contend that the Tribunal is not the appropriate forum to adjudicate on this matter on the basis that the Petitioner failed to make attempts to address the raised issues through the established internal dispute resolution mechanisms. On the other hand, the Petitioner and the 6th Interested Party contend that the Respondents did not afford them an opportunity to be heard.

14. The Tribunal derives its jurisdictions from section 58 of the Sports Act which provides that:“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;a.other sports-related disputes that all parties to the dispute agree to refer to the Tribunal and that the Tribunal agrees to hear; andb.appeals from decisions of the Registrar under this Act."

15. The jurisdictional contention arises from whether the Petitioner exhausted available internal despite resolution avenues before approaching the tribunal. The FKF Rules and Regulations governing Kenyan Football of 2019 at Chapter 10 provide for the manner of addressing complaints, protests and appeals. Rule 10. 1 of the Rules provides that;Any team, affiliate, official, player, staff member, or any other person or body in member- ship ofFKF or its affiliates, inclusive ofa club that has not lodged a protest in respect ofa game in which it participated, may lodge a Complaint with FKF, in respect ofany act of misconduct/offence allegedly committed.

16. Under Rules 10. 1.1 and 10. 1.2, a complaint is required to be lodged in writing within seventy-two (72) hours of occurrence of the incident, setting out the full facts on which it is based and making reference to the Rule and/or Rule and Regulation allegedly contravened by the offending party.

17. Further, Rule 10. 3.1 of the Rules and Regulations guide that;Save where the right of appeal is restricted in terms of any FKF Statute and/or these Rules, any party directly affected by any decision made or penalties imposed by any em- ployee or official of FKF and/or any FKF Committee shall have the right to appeal to the FKF Appeals Committee.

18. From the foregoing provisions, it is clear that a person aggrieved by the decision of the FKF may seek redress by lodging a complaint with FKF Appeals Committee.

19. I have seen the PetitioneYs letter dated 16th March 2023, addressed to the Head of Leagues and Competitions Football Kenya Federation, complaining about the alleged illegal docking of points from clubs due to lack of a fully equipped ambulance. In the letter, the Petitioner requested the Committee to look into the issue and rectify the same by reversing the decision and issuing amended table standings accordingly.

20. In response, the Head of Leagues and Competition wrote an email dated April 4, 2023 informing the Petitioner that Baringo Football Association was neither a member of FKF nor was its affiliated to FKF and therefore he had no locus to raise a complaint or demands as an official of the Association.

21. Further, the Head of Leagues and Competition informed the Petitioner that the FKF Constitution and Rules governing Kenyan Football provide sufficient mechanism for parties aggrieved by the decisions of FKF to raise their concerns and to have them resolved.

22. The Petitioner responded to the email stating that they did not agree with the position of the Head of Leagues and Competition and would seek recourse at the Sports Dispute Tribunal.

23. The 6th Interested Party indicated that they had made complaints to FKF through letters dated 21 st and March 23, 2023 upon which they were turned down. In their submissions, it was the position of the Respondents that a letter is not the proper manner of lodging a complaint.

24. In construing the provisions of section 58 of the Sports Act, it must be restated that the jurisdiction of the Tribunal under this provision is of an appellate nature. It follows that the Tribunal can only be seized of a matter upon the dissatisfaction of a party by the decision of a sports organization.

25. The FKF Constitution and the Rules and Regulations governing Kenyan Football 2019 provide avenues for lodging and determination of complaints and protests by aggrieved parties. The FKF Appeals Committee is established as the final channel of internal dispute resolution pursuant to Article 69 of the Constitution of Football Kenya Federation, 2017.

26. This Tribunal has previously upheld the exhaustion doctrine in Shikoki Akaka & others v Kenya Handball Federation [20181 eKLR and held that where there are internal dispute resolution mechanisms existing outside the tribunal, the same should be exhausted before the jurisdiction of the fribunal can be invoked.

27. 1n Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties)(2020) eKLR the Court pronounced itself on the question of exhaustion of administrative remedies stating as follows:The exhaustion doctrine serves the purpose of ensuring that there is a postponement ofjudicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts.

28. After considering the arguments put forward by the Respondents, the Petitioner and 6th Interested Party, the Tribunal finds that while the question of locus standi is subject to determination in separate proceedings and parties elected not to have it determined in these proceedings, the FKF Rules and Regulations of 2019 clearly set out an elaborate manner and procedure of lodging complaints, protests and appeals which the Petitioner was made aware of in the email of April 4, 2023 by the Head of Leagues and Competitions Committee.

29. The complaints raised by the Petitioner and the 6th Interested Party should have been referred to the FKF Appeals Committee for resolution as they directly relate to the interested parties who are members of and are duly bound by the provisions of the FKF Rules and Regulations of 2019 to observe the set out procedures in accordance with the Rules.

30. In the event that the Petitioner and 6th Interested Party are dissatisfied by the decisions of the FKF Appeals Committee, they may the approach this Tribunal under the provisions of Section 58 of the Act.

31. I have also noted that the Petition seeks to impugn the legality of the FKF Rules and Regulations 2019. Notably, this is not a matter envisaged under Section 58 of the Sports Act, 2013 which I have cited in extenso elsewhere in this ruling. The Section outlines matters which this Tribunal should entertain, and they primarily fall as appeals from specified decisions and in specified circumstances. Further the issue has not been pleased in the Petition and is therefore not before the Tribunal for determination. I therefore find that the question of legality or otherwise of the Rules and Regulations is not presently before this Tribunal. As such, the Tribunal declines to equally entertain the Petition in that respect.

H. Disposition 32. Accordingly, the Tribunal consequently Orders as follows:i.The Preliminary Objection is hereby partially upheld.ii.The Petition dated May 29, 2023 and the Application of the same date are struck out for want of jurisdiction.

DATED AT NAIROBI THIS 11TH DAY OF JULY 2023Signed:JOHN M OHAGA SC, CARB, FCIARB