https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10146

Cherop v Cheboi & 6 others (Petition E009 of 2024) [2026] KEHC 10146 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 10146 (KLR) Republic of Kenya In the High Court at Kabarnet Petition E009 of 2024 TM Matheka, J July 10, 2026 Between Samson Cherop Petitioner and Benjamin Cheboi 1st Respondent Dennis Kimutai 2nd Respondent Kenneth Rutto 3rd Respondent FKF Electoral Board 4th Respondent Football Kenya Federation 5th Respondent CS Sports 6th Respondent Attorney General 7th Respondent Judgment 1.The Petitioner Samson CheroP has come before this court vide a petition dated 22nd November,2024 seeking for orders:-a.A Declaration that the 1st, 2nd and 3rd Respondents decisions to lock out women football clubs and other clubs men football clubs not affiliated with unregistered FKF Baringo County Branch especially from Koibatek and Mogotio Sub County in the upcoming Baringo County Governors cup 2024 2nd edition is discriminatory, ultra vires, Null and Void and infringes on their rights as enshrined in the Constitution of Kenya 2010.b.A declaration that Baringo County Football Association is a validly registered and legal subordinate/ branch of Football Kenya Federation (national football body).c.A declaration that only Baringo County Football Association (BCFA) designate nominee shall be delegate/Representative of Baringo in any football and other related matters at national level (FKF) or any other forum in and outside Kenya.d.A declaration that unregistered FKF Baringo Branch is an illegal entity hence not recognized as a Sports Organization. 2.The petitioner avers that he is an Accountant by profession, Public interest advocate, football official and treasurer (Chair Leagues and Competitions) of Baringo County Football Association and brings this Petition on behalf of the public and football fraternity in Baringo County. 3.The petitioner contends that the Football Kenya Federation, Baringo County Football Association are both registered by the same Sports Act 2013. 4.That Football Kenya Federation does not recognize BCFA as a member despite summiting a letter seeking admission and being registered by Sports Act 2013 an Act superior than FKF Constitution 2017. 5.That the unregistered FKF Branches including FKF Baringo County Branch has continued to run football activities in contravention of the law. 6.That it has been on this basis that unregistered FKF Baringo County Branch using their longevity in football matters to pass off as the legitimate entity to run football. 7.That the unregistered FKF Baringo County Branch in collaboration with the department of the Sports at Baringo County discriminate anybody or club associated with BCFA for example issuance of football equipment in 2023. 8.The petitioner avers that Clubs affiliated with BCFA are denied a chance to participate in tournaments organized by the department of sports and if allowed it is in places where unregistered FKF Baringo County has no active leagues and competitions. 9.That Public Participation is not a forum where commission of an illegality is allowed. That issues of rights and freedoms are not subject to a vote in a planning meeting. 10.That the unregistered FKF Baringo branch and County Department of Sports cannot convert tournament planning meetings as public participation. 11.That Public Participation for 2024/2025 budget was completed long time ago and the budget and criterion of the Governor’s Cup 2024 competition if any was a closed matter and cannot be reopened in November 2024. 12.That the Sports Act 2013 does not contemplate a situation where two entities run the same discipline at national and county level. 13.That unregistered FKF Baringo County is illegally operating as a sports organization and the women football teams and teams not affiliated with unregistered FKF Baringo County Branch especially in Koibatek Sub County and Mogotio have been discriminated with against the law. 14.That they seek the court intervention to interpret for them the Constitution of Kenya 2010, Sports Act 2013, Sports Registrar regulations 2016 and FKF Constitution 2017 and the position of BCFA and unregistered FKF Baringo County Branch. 15.That the actions of the 1st, 2nd and 3rd respondents have disenfranchised thousands of Baringo football players and stakeholders by their discriminative and illegal actions. 16.In response to the petition, the 1st and 2nd Respondents filed a preliminary objection on points of law raising the following grounds:-a.That this Honourable Court lacks jurisdiction to entertain and determine this Petition in the first instance, the Petitioner having failed to exhaust the mandatory dispute resolution mechanisms provided under the Sports Act, 2013, for determination by the Sports Disputes Tribunal.b.That under Section 58 of the Sports Act, 2013, the Sports Disputes Tribunal has the original jurisdiction to hear and determine disputes relating to sports federations, associations, and related stakeholders, which jurisdiction has not been invoked or exhausted by the Petitioner herein.c.That the Petition offends the doctrine of exhaustion of remedies as pronounced by the courts in decisions in Speaker of the National Assembly v. Njenga Karume [2008] 1 KLR 425, Geoffrey Muthinja Kabiru & 2 Others v.Samuel Munga Henry & 1756 Others [2015]eKLR, among others.d.That the Petition is therefore premature, incompetent, and an abuse of the court process, and ought to be struck out with costs to the Respondent/Applicant. 17.The preliminary objection was canvassed by way of written submissions. Submissions By The 1St And 2Nd Respondents 18.The 1st and 2nd Respondents in support of the Preliminary Objection submit that the law and principles applicable to preliminary objections were set out Mukisa Biscuit Manufacturing Co. Ltd - Vs - West End Distributors Ltd (1969) EA 696. 19.That their Preliminary Objection fits the qualifications set out in the Mukisa Biscuits case (supra) as the Parties do not need the court to ascertain any fact in the case from other documents other than the pleadings on record and the documents in support thereof in determining the Preliminary Objection. 20.Th only issue for determination for them is whether the court has jurisdiction under s. 58 off the Sports Act to hear and determine this matter. 21.Citing Owners of the Motor Vessel `Lillian S" v Caltex Oil (Kenya) Ltd [1989] eKLR they submit that jurisdiction is everything and if the court lacks the requisite jurisdiction, it has no option but to down its tools as was held in. 22.They cite Section 58 of the Sports Act, 2013 which states: The Tribunal shall determinea.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.c.appeals from decisions of the Registrar under this Act.(emphasis theirs) 23.They submit that the issues before court relate to the registration, recognition and the rights of football clubs alleged to have been discriminated against by the respondents; that the matters raised fall directly within the statutory mandate of the Sports Disputes Tribunal and no evidence has been tendered before this Honourable Court to show that the Petitioner has invoked, pursued, or exhausted the dispute resolution procedures under the Sports Act. 24.On the submission that the Petitioner ought to have exhausted the dispute resolution mechanism under the 5th Respondent who is mandated by statute to determine such disputes in the first instance as provided in the Sports Act first they rely on Issack v Issack & 3 others [2025] KEHC 1985 (KLR) where the court held that:`From the pleadings presented before this court, nothing was presented to demonstrate that indeed the internal channels of the FKF had been exhausted to enable recourse before this court. This matter was directly filed before this court without the plaintiff attempting to have the matter settled by the FKF. I say so for the reason that the plaintiff urged that by virtue of article 165(3) of the constitution, this court has original and appellate jurisdiction to hear any matter presented before it. 25.They submit that this matter is premature and urge the court to be guided by, Geoffrey Muthiga Kabiru & 2 others - vs- Samuel Munga Henry & 1756 others [2015j eKLR, where the Court of Appeal held that it is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. 26.They also place reliance on Musaina v Jubilee Party of Kenya & 4 Others [2023] KEHC 1124 (KLR) where the court while upholding the preliminary objection held that:“...this Court undoubtedly arrives at the finding that the institution of the instant proceedings before this Court was premature. As such, the Court's jurisdiction has been improperly invoked. The Court must down its tools." 27.The court is urged to uphold the Preliminary Objection and strike out the petition for being filed prematurely with costs to the Respondents. SUbmissions By The 3Rd, 4Th, 5Th Respondents 28.Arguing that the petitioner ought to have referred the dispute to the Sports Tribunal established under section 55 of the Sports Act, the 3rd 4th and 5th support of preliminary objection on the ground that the petitioner had not exhausted all the dispute resolution mechanisms available before filing this petition. 29.It is the Petitioner’s position that the preliminary objection is misconceived. 30.That it is noteworthy that the preamble of the Sports Act provides that it was enacted to deal with : `:..administration and management of sports in the county, and for connected purposes. " The dispute herein has to do with management and administration of football and thus should have been taken to the Tribunal. 31.They submit that they have shown that this Court lacks jurisdiction to hear and determine this petition by virtue of the doctrine of exhaustion and the existence of the specialized sports court, the Sports Dispute Tribunal and therefore invite the court to strike out the petition for being premature, incompetent and purely an abuse of the court process with costs 32.They rely on Owners of Motor Vessel “Lilian S” –vs- Caltex Oil (Kenya) Ltd [1989] KLR 1 on the submission that without jurisdiction this court must drop its tools as it will have no basis for a continuation of the proceedings. 33.They cite Godfrey Osotsi –vs- Amani National Congress [2019] eKLR for the submission that where the Constitution or Parliament has set out a clear procedure for redress of any particular grievance then the same should be strictly followed as there are good reasons for such procedures. They also rely on the Court of Appeal in Geoffrey Muthinja & Another –vs- Samuel Muguna Henry & 1756 others [2015] eKLR: where the court stated;“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial 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 of courts. These accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.It further added:“We find and hold that the exhaustion doctrine applies even where, as was argued by the appellants herein, what is sought to be challenged is the very authority of the organs before whom the dispute was to be placed. We think there were sufficient safeguards in place for a valid determination of the various plaintiffs’ disputes had they filed them within the church set up. And there was always the right, acknowledged by the learned Judge, of approaching the courts after exhaustion of the church mechanisms. By failing to do so, and quite apart from the force of their apprehensions, the appellants effectively failed to exhaust their remedies and essentially short circuited the process by filing suits prematurely.” Emphasis ours.See also R –vs- National Environment Management Authority Exparte sound Equipment Ltd [2011] eKLR. 34.They also cited Section 58 of the Sports Act, emphasizing the Section 58 (9) and the preamble to the Act.a.Appels 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;” 35.It is noteworthy that the preamble of the Sports Act provides that it was enacted to deal with: “…administration and management of sports in the country, and for connected purposes.” The dispute herein has to do with management and administration of football and thus should have been taken to the Tribunal. Submisions By The Petitioner 36.The petitioner sets out the issues for determination as:-i.Whether the Preliminary Objection raises a pure point of law capable of disposing of the Petition.ii.Whether this Honorable Court has jurisdiction to entertain the Petition.iii.Whether the Court can issue interim conservatory or preservatory orders pending determination of the Preliminary Objection and Petition. 37.On whether the preliminary objection is properly before this court, the Petitioner submits the Respondents’ Preliminary Objection is anchored on the assertion that the dispute falls within the jurisdiction of the Sports Disputes Tribunal (SDT) established under Section 55 of the Sports Act, 2013. 38.That as was established in the case of Mukisa Biscuit Manufacturing Co. v West End Distributors [1969] EA 696, a Preliminary Objection must raise a pure point of law which, if argued successfully, would dispose of the entire suit without recourse to facts. 39.It is the Petitioner’s position that the objection herein calls for factual determination as whether the Respondents, being public entities, fall within the Sports Dispute Tribunal (SDT’s) jurisdiction and whether the issues raised are of a constitutional nature . That by the mere fact of this need , the Preliminary Objection is disqualified as a proper P.O. 40.It is submitted that the Petition challenges administrative conduct of public officers and state organs – namely the County Government of Baringo and the Ministry of Sports – in their dealings with FKF and their alleged disregard of constitutional principles of fairness, equality, and accountability which issues fall squarely within the jurisdiction of this Honourable Court under Article 165(3)(b) and (d) of the Constitution. 41.On whether this honorable court has jurisdiction, the Petitioner submits that the Respondents have argued that the Sports Act vests jurisdiction exclusively in the Sports Disputes Tribunal. The petitioner argues that the Tribunal’s jurisdiction under Section 58 of the Sports Act extends only to disputes between sports organizations, officials, and members registered under the Act. That the 1st and 2nd , 3rd ,6th and 7th Respondents are government entities, not sports organizations registered under the Sports Act 42.It is submitted that the subject matter also concerns enforcement of constitutional rights, and that the the Petitioner’s grievance is not merely about competition results or player/ team or clubs’ registration, but about the Respondents’ unconstitutional conduct in excluding Women ladies teams and duly registered Baringo county Football Association and affiliate football clubs hence undermining the rule of law. That the Petition therefore properly invokes the jurisdiction of this Court. 43.The Petitioner relies on FKF v Sports Registrar & Another [2021] eKLR, where it was affirmed that the High Court retains supervisory and constitutional jurisdiction even in matters relating to sports management where fundamental rights are implicated. 44.The Petitioner argues that it is in the public interest that that the administration of sports within Baringo County be conducted lawfully and inclusively, and that the Respondents be restrained from perpetuating illegality pending final determination. 45.The petitioner submits that the Preliminary Objection lacks merit, and that this Honorable Court has jurisdiction to hear and determine the Petition and that this Honourable Court be pleased to dismiss the Preliminary Objection with costs and grant such further or other orders as this Honourable Court may deem fit in the interest of justice Analysis & Determination: 46.The issue for determination raised by the Preliminary objection is whether this Court lacks Jurisdiction to hear and determine the Petition in view of S. 58 of the Sports Act Cap 223. 47.A Preliminary objection if upheld 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:'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.' 48.Should this court determine that it has no jurisdiction on the matter then it would have to lay its tools down and let go of the Petition, for the Petitioner to pursue the matter before the entity with jurisdiction. 49.It is common ground that the Sports Act establishes the jurisdiction of the Sports Tribunal; 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;b.Other sports-related disputes that all parties to the dispute agree to refer to the tribunal and that the tribunal agrees to hear; andc.Appeals from decisions of the registrar under this Act. 50.The petitioner submits that the subject matter of the Petition is not merely about competition results or player/ team or clubs’ registration but the enforcement of constitutional rights, and the Respondents’ unconstitutional conduct in excluding Women ladies teams and duly registered Baringo county Football Association and affiliate football clubs. 51.The Petitioner sets out the following facts:-1.That Football Kenya Federation, Baringo County Football Association are both registered by the same Sports Act 2013. One as a national football body and the other as a county football body.2.That Football Kenya Federation does not recognize BCFA as a member despite submitting a letter seeking admission and being registered by Sports Act 2013 an Act superior than FKF Constitution 2017.3.That the unregistered FKF Branches including FKF Baringo County Branch has continued to run football activities in contravention of the law. 4.That it has been on this basis that unregistered FKF Baringo County Branch using their longevity in football matters to pass of as the legitimate entity to run football. 5.That unregistered FKF Baringo County Branch in collaboration with the department of the Sports at Baringo County discriminate anybody or club associated with BCFA for example issuance of football equipment in 203.6.That clubs affiliated with BCFA are denied a chance to participate in tournaments organized by the department of sports and if allowed it is in placed where unregistered FKF Baringo County has no active leagues and competitions.7.That public participation is not a forum where commission of an illegality is allowed. Issues of rights and freedoms ae not subject to a vote in a planning meeting.8.That the unregistered FKF Baringo Branch and County Department of Sports cannot convert tournament planning meetings as public participation.9.That public participation for 2024/2025 budget was completed long time ago and the budget and criterion of the Governor’s Cup 2024 competition if any was a closed matter and cannot be re-opened in November, 2024.10.That the Sports Act 2013 does not contemplate a situation where two entities run the same discipline at national and county level.11.That unregistered FKF Baringo County is illegally operating as a sports organization.12.That women football teams and teams not affiliated with unregistered FKF Baringo county branch especially in Koibatek Sub County and Mogotio have been discriminated with is against the law ( emphasis added) 52.From the foregoing it is evident that there is a dispute between FKF and BCFA on the management of sports in the county creating confusion as to who ought to do what 53.Looking at the preamble to the Act, its this must be one of the connected purposes, to deal with such a dispute and give guidance as to what should happen in Sports Administration. This is more so I have emphasized the prayers sought by the Petitioner. 54.The 1st , 2nd ,3rd, 4th, 5th Respondents are in agreement that the proper place for this dispute is the Sports Tribunal. In a away they are submitting themselves to the Jurisdiction of that Tribunal and it is the Petitioner feels that the matter ought to be determined here. 55.Looking at the facts and the prayers sought: the fisrt one has to do with unregistered FKF Baringo Branch dealing denting teams from participating in game; the registration and legal status of Baringo County Football Association vis a vis Football Kenya Federation ;the place of Baringo County Football Association (BCFA) in the national/ international football space and the legality of FKF Baringo Branch as a Sports Organization 56.The 4th and 5th Respondents are at the centre stage of the issues raised by the Petitioner. They are key players in the football issues that the petitioner has raised. These issues are more on the side of the growth, development, and management of sports but largely football in Baringo County. The respondents insist that the Sports Tribunal is the one with the primary jurisdiction to deal with those issues and from the foregoing, I agree. 57.It appears to me that the determination of those issues by the Tribunal will pave way for the determination of all the other issues, including those emanating from the county. 58.In the circumstances it is my considered view that the P.O is merited . It is allowed. 59.The upshot is that the Petition is struck out for want of jurisdiction. 60.Each party to bear its own costs. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT KABARNET HIGH COURT THIS 10TH JULY 2026MUMBUA T MATHEKAJUDGEIn the Presence:The Petitioner( virtually)Court Assistant: MomanyiIn the presence of:Petitioner present.Momanyi - Court Assistant.