[2022] KEHC 3387 (KLR)

Football Kenya Federation (Fkf & 2 others v Heritage & 5 others; Club & 7 others (Interested Parties) (Petition E473 of 2021) [2022] KEHC 3387 (KLR) (Constitutional and Human Rights) (10 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3387 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Constitutional and Human Rights

Petition E473 of 2021

HI Ong'udi, J

May 10, 2022

Between

Football Kenya Federation (Fkf

1st Petitioner

Nick Mwendwa

2nd Petitioner

Barry Otieno

3rd Petitioner

and

Culture And Heritage

1st Respondent

Sports Registrar

2nd Respondent

Fkf Inspection Committee

3rd Respondent

The Attorney General

4th Respondent

Fkf Caretaker Committee

5th Respondent

Caretaker Committee

6th Respondent

and

Kariobangi Sharks Football Club

Interested Party

Posta Rangers Football Club

Interested Party

Bidco United Football Club

Interested Party

Mombasa County Football Association

Interested Party

Kakamega County Football Association

Interested Party

Mandera County Football Association

Interested Party

Uasin Gishu County Football Association

Interested Party

Migori County Football Association

Interested Party

Judgment

1. The 1st petitioner moved this court through a petition dated November 8, 2021 and supported with the 3rd petitioner’s affidavit sworn on even date.

2. The Petition was subsequently amended vide the amended Petition dated November 22, 2021 bringing on board the 2nd and 3rd Petitioners. It arises from an inspection conducted on the 1st Petitioner at the 1st respondent’s directive and founded on section 52 (1) and (4) of the Sports Act; Regulation 19(6) of the Sports Registrar Regulations, 2016 and sections 4(1), (2), (3), 7(2) (a) of the Fair Administrative Action Act, 2015. The petitioners claim that the respondents contravened Articles 1, 10, 29, 28(3), 47, 50 and 236 of the Constitution.

3. The petitioners therefore pray for the following reliefs:i.A declaration that the inspection of 1st petitioner commenced by the 1st respondent through her directive issued to the 2nd respondent dated October 14, 2021 and all other processes undertaken by the respondents thereafter are irregular, unlawful and a nullity in law;ii.A declaration that an inspection undersection 52 of the Sports Act must be undertaken only after the 2nd respondent has notified a sports organization of such impending action prior and having issued adequate notice of the nature and reasons for the proposed inspection and having accorded the sports organization an opportunity to be heard and to make representations;iii.A declaration that an inspector appointed under section 52 of the Sports Act, 2013 is a singular person whose identity must be made known to the sports organization being inspected and an inspector so appointed must accord the sports organization being inspected a reasonable opportunity to state its case;iv.An order of certiorari directed at the respondents to remove into the court and quash the 1" respondent's directive to the 2nd respondent dated October 14, 2021and all the processes undertaken by the respondents pursuant to that directive including the preliminary report of the 3rd respondent dated November 5, 2021and gazette notice No.12374 dated November 12, 2021;v.An order of injunction against the respondents from undertaking any other or further administrative or legal action against the petitioners on the basis of the preliminary report of the 3rd respondent dated November 5, 2021;vi.An order of permanent injunction against the 5th and 6th respondents from taking over the running of football activities in the Republic of Kenya and issuing any directives in that regard; andvii.Costs of the petition to be borne by the respondents.

The Petitioners’ case 4. The amended petition is supported by the 3rd petitioner’s affidavit sworn on November 22, 2022, 2nd petitioner’s affidavit sworn on even date, further affidavit by the 3rd petitioner sworn on November 25, 2021 and supplementary affidavit by the 3rd petitioner sworn on March 1, 2022. Their case is that on the night of October 15, 2021, they learnt, through a press release on social media of the decision by the 1st respondent directing the 2nd respondent to undertake an inspection of FKF from October 18, 2021 and to thereafter submit the report to her office on or before November 2, 2021.

5. Consequently, on October 16, 2021, FKF wrote to the 1st respondent raising concerns in the manner in which the 1st respondent had decided to disseminate information through the press rather than writing to them on the scope, and terms of reference or underlying objectives of the inspection which were unknown. It elicited no response to date.

6. Subsequently on October 25, 2021 the chairperson of the FKF inspection committee wrote FKF notifying it that the 2nd respondent had on October 18, 2021 appointed some undisclosed inspectors to undertake the exercise on the terms of reference to;i.Identify areas on non-compliance to the Sports Act and any other relevant law including submissions of Annual Returns and other relevant documents to the Ministry;ii.Scrutinize FKF books or records, accounts and expenditure alongside the Constitution, Public Management Finance Act, Public Procurement and Asset Disposal Act, 2015 requirements to establish whether there has been any misappropriation of funds advanced to FKF by the Government, any international or national organization or among others; andiii.Prepare an inspection report and submit to the cabinet secretary within two weeks from the date of appointment.

7. The chairperson further directed FKF to submit certified copies of a list of 34 sets of documents for the period between July 1, 2014and on or before October 28, 2021 contrary to the provisions of sections 52(3) of the Sports Act. It wrote a letter to the 2nd respondent on October 26, 2021 notifying her that it would only engage persons appointed by her in accordance with section 52 of the Sports Act. On October 27, 2021 the 2nd respondent responded indicating the composition of the inspection committee attaching the 1st respondent’s directive directing her to undertake inspection.

8. Pursuant to the said letter, FKF on October 28, 2021 wrote back to the 2nd respondent indicating that it had dedicated a room and personnel who would assist in the inspection with the relevant documentation and/ or clarification that may be needed during inspection. Subsequently, on October 29, 2021 and November 1, 2021, the inspection committee visited FKF’s premises and undertook the inspection for a total period of 10 hours. They also furnished them with the letters appointing them as inspectors by the 2nd respondent and the letter on the terms of reference.

9. It is their case, that they were not averse to the inspection, and their only issue was that the inspection fell short of the bare minimum threshold of the statutory edits and legal principles appurtenant to the conduct of a valid and legitimate inspection envisaged under section 52 of the Sports Act as read with section 4 of the Fair Administrative Action Act and article 47 of the Constitution.

10. According to them, their books of accounts had been separately audited over the last seven years by FIFA, Sports fund, and the Auditor General without any adverse on the management of the financial affairs of the 1st petitioner. There was nothing to warrant a hasty inspection as that conducted by the respondents. Further, that the 2nd respondent was on record in a matter pending for determination at the Sports Disputes Tribunal (STD Petition No. E 006 of 2021- Milton Nyakundi Oriku vs FKF and 16 others) claiming that the current elected officials of FKF were in office illegally and should be subjected to fresh elections yet she was an observer in the elections conducted. Hence the decision to purportedly disband FKF was preconceived and the inspection was not undertaken in good faith. It also raised the issue as to whether the 2nd respondent was suitable to undertake a lawful and objective inspection of FKF under the law.

11. Through gazette notice No. 12374 dated November 12, 2021, the 1st respondent disbanded FKF National Executive Committee and appointed the 5th & 6th respondents to undertake the affairs of FKF and conduct fresh elections of FKF contrary to the 1st petitioner’s constitution. They averred that contrary to section 54 of the Sports Act, the 1st respondent rendered the employees of FKF redundant and jobless.

12. Further, FIFA had cautioned the 1st respondent of her decision to install the 5th respondent contrary to the provisions of the FIFA statutes and had requested the 1st respondent to reconsider it to avoid a ban being imposed upon Kenya which she failed to do. They feared that unless this court intervened FIFA would proceed with the ban which had consequences.

13. It was their case that, during the inspection FKF discovered that the Ministry informed the Sports Culture and Tourism Parliamentary Committee on 27th October 2021, that the government advanced KShs. 433,500,000/- to it while the records indicated that between the periods of 2019 and 2021 it only received and accounted for KShs.355, 512, 205 which it sought to correct as it appeared that the respondents held a belief that the sum at variance had been misappropriated by it.

14. The supporting affidavit by the 2nd and 3rd petitioners more or less reiterated the contents of the amended petition. According to them the inspection report was filled with misconceptions, and took the 2nd respondent’s opinion as the only true opinion yet it was premeditated. To them the report was not conclusive and capable of being relied upon to make decisions such as the ones already made by the respondents.

15. The 3rd petitioner in his further supporting affidavit set out the chronology of events that transpired since the filing of the petition, to wit;i.On November 11, 2021, the court directed that the status quo be maintained and directed parties to appear before it on the October 12, 2021. On the same date, the 1st respondent issued a press statement disbanding the FKF and announced the takeover of the football operations by the FKF caretaker committee and a secretariat to run football in Kenya. She further ordered the closure of the federation’s offices locking all the federations’ employees and compromising the running of the football in the country.ii.Vide gazette notice No. 12374 on November 12, 2021, the 1st respondent disbanded the FKF National Executive Committee and appointed a caretaker committee and a secretariat to the caretaker committee. Subsequently, the 2nd petitioner was arrested by the Directorate of Criminal Investigations, kept in custody till Monday November 15, 2021 when he was arraigned in court, and in a ruling dated 14th November 2021, the court observed that the DPP had not sufficiently proven grounds to hold him without a charge and granted the prosecution 7 days to charge him. Again on the same date, the 5th and 6th respondents immediately suspended all the leagues for 14 days without informing the clubs.iii.On 14th November 2021 FIFA wrote to the 1st respondent about the interference of the government of football in Kenya indicating that it would ban Kenya which was not acceded to.iv.The caretaker committee has continued to discharge their mandate and met with the football clubs and referees on 24th November 2021.

16. He averred that the said chronology of events put Kenya in a precarious position as FIFA was monitoring the happenings and could ban it as intimated in their letter dated 14th November 2021. He deposed that despite the 1st respondent being summoned by the Senate on 11th November 2021 and 12th November 2021 to answer to her grievances and adverse actions against the petitioners she failed to appear. That the issues herein could have been resolved if the 1st respondent had approached the issue in good faith and engaged the petitioners and the Senate.

17. Regarding the issue of the 2nd petitioner, the court closed the file and the 2nd petitioner was released after the prosecution informed the court that it had no charges against him. According to them this absolves the petitioners of any criminal wrong doing in regard to any purported mismanagement and misappropriation of funds which was the crux of the 1st respondent’s grievance against the petitioners.

18. In the supplementary affidavit, the 3rd petitioner deposed that on February 24, 2022, FIFA council determined that the circumstances of the Kenyan situation amounted to a clear case of undue interference by a third party; voted for the suspension of Kenya with immediate effect subject to; the repeal of the Cabinet Secretary’s decision of appointing the caretaker committee and a confirmation for FKF and its management that it had taken unconditional control.

19. Subsequently, FIFA sent out a circular No. 1784 to all member associations notifying them of the suspension and reminding them that having lost all its membership rights, FKF and its clubs were no longer entitled to participate in international competitions until the suspension was lifted. FKF and its members or officials could not also benefit from the development programmes, courses or trainings.

The 1st – 3rd Respondents’ response 20. The 1st – 3rd respondents filed a response by Rose M. N. Wasike (2nd respondent) sworn on November 18, 2021. She averred that the 2nd respondent is empowered under section 52(1) of the Sports Act No. 25 of 2013 to inspect a sports organization. This can either be at her own will or as directed by the Cabinet Secretary responsible for matters relating to sports. Upon such action she can cause an inspection of any sports organization to be made by any person authorized by herself in writing.

21. She deposed that it is in view of the power bestowed upon the Cabinet Secretary under section 52(1) of the Sports Act that the 1st respondent on October 14, 2021 directed the 2nd respondent to inspect the 1st petitioner through an internal memo of October 14, 2021 before the issuing of the press release on 15th October 2021. Further, that section 52(1) of the Sports Act did not obligate the Cabinet Secretary to disclose reasons for directing the sports registrar to undertake an inspection of any sports organization nor notify a sports organization on the same.

22. She averred that contrary to the 3rd petitioner’s assertion, the sports registrar appointed the inspectors in writing on October 18, 2021 to inspect FKF in accordance with section 52(1) of the Sports Act. Further, being a regulator, she needed persons of multiple agencies with various expertise to tackle different areas of accusations and allegations against FKF hence the appointment of persons from different organizations to work collectively on the issue.

23. She deposed that after the appointment of the inspectors on 1October 8, 2021 the committee wrote to the CEO of FKF on October 25, 2021 requesting for various documents to enable it analyze the documents and prepare a report. The CEO responded on 26th October requesting for the list of names of appointed inspectors which was sent to him on October 27, 2021.

24. She deposed that subsequently, the CEO on 28th October 2021, wrote requesting for a data presentation schedule to aid in expediting the inspection process; a request that was made on a Thursday which led to the delayed analyzing of documents and late submissions of the report to the 1st respondent on November 9, 2021 instead on November 2, 2021. She averred that despite the CEO accepting to avail documents, only a few of the required documents were availed to the committee. The CEO further requested vide a WhatsApp message on October 30, 2021 that the inspection Committee provide FKF with copies of National Identification Cards from all appointed inspectors before being shown bank accounts and statements; an issue the chair of the inspection committee clarified stating that the identification for inspectors was production of their appointment letters.

25. She deponed that when the inspectors went to retrieve the requested documents, FKF reservedly availed requested documents; i.e. bank accounts, bank statements, bank withdrawals and transfers which were only shown to the inspectors vide computers and laptop screen without being in hard or soft copies. Subsequently, the inspection committee submitted the report to the sports registrar on 5th November 2021 and the same was forwarded together with recommendations to the 1st respondent for implementation on November 9, 2021.

26. She further averred that the committee made a serious findings which included but not limited to the following: Opening of many unauthorized FKF bank accounts;

Unauthorised and fictitious withdrawals and transfer of money for FKF bank accounts to individual accounts of the outgoing officials of FKF and unknown persons.

Abuse of office by the removed officials of FKF.

Written confessions by the FKF CEO that FKF was a private entity and was only subject to FIFA statutes and not Kenyan Laws, regulations and procedures.

27. She averred that she found the confession to be an indication that even if given a chance to adhere to Kenyan law FKF would not accept. She was unable to implement section 53 which required her to make recommendations of the inspection committee as highlighted in the committee’s preliminary report.

28. She averred that the FKF in its operations was flouting the constitution of Kenya, the Sports Act, the Sports Registrar Regulations of September 3, 2016 and other relevant laws. To wit, failure to transit under section 50 of the Sports Act; failure to amend the FKF constitution of 2017 in line with the Constitution of Kenya, the Sports Act, the Sports Registrar Regulations; holding of illegal elections 2016 with full knowledge that it failed to transit under section 50 of the Sports Act and before registration under the Sports Act and also held elections in 2020 using international sports organizations that were not registered by the sports registrar under section 46 and 47 of the Sports Act; refusal to amend the FKF constitution of 2016 and 2017 in line with the Constitution, Sports Act and its Regulations; refusal to initiate registration of county football associations as required under paragraph 4(3) (c) of theSports Registrar Regulations; refusal to distribute the 47 application forms picked from the sports registrar’s office to county sports associations nor return the forms; elevation of former branches of the FKF to County Football Sports Association through writing instead of initiating or advising the counties to register under section 46 and 47 of the Sports Act; refusal to admit and accept football county sports associations and sports club; refusal to submit yearly annual returns to the sports registrar; persistence argument that it is governed by FIFA statutes and not national laws; and refusal to implement sports registrar’s advice.

29. She deposed that she had warned FKF vide letters of June 22, 2017, October 25, 2018, November 15, 2019 etc that failure to comply with the areas of violation of the law would lead to cancellation of the FKF registration Certificate in accordance with section 51(1) of the Sports Act. Therefore, if the 1st respondent had not directed her to undertake inspection of FKF, she would have ended up cancelling the FKF certificate of registration for violating terms attached on the certificate of registration and breaching the provisions of the Sports Act.

30. She further deposed that the interim certificate of registration issued to FKF on July 29, 2016 automatically became invalid on gazettement of the Sports Registrar Regulations of September 2, 2016. Thus FKF was issued with another certificate of registration No. 45 of May 24, 2018 after submitting an amended constitution which after going through the registrar noted that it was not aligned to the Kenya constitution, the Sports Act and FIFA statutes hence issued the certificate under conditions that; FKF complies with the Sports Act and any other relevant law; FKF reviews its constitution in line with the Kenya Constitution, the Sports Act and any other relevant law and FKF holds elections within 90 days from the date of registration.

31. She averred that on June 22, 2017, the sports registrar wrote to FKF highlighting the violations and requested FKF to amend the Constitution with a caution of cancelling the certificate hence the two letters referred to in the petition are not the first warning letters to FKF. According to her, FKF’s predicament was not caused by the 1st respondent’s directive to the Sports Registrar or the FKF Inspection Committee and its preliminary Report but by FKF’s flouting of provisions of the Sports Act, Second schedule to the Sports Act and the Sports Registrar Regulations and failure to fully implement the terms and conditions attached to the certificate of registration issued on May 24, 2018.

32. She deponed that the FKF violated paragraphs 4 and 6 of the Sports Registrar Regulations of September 2, 2016. Further, that the FIFA rules were not part of international legal instruments that Kenya was expected to ratify under article 2 of the Constitution and Kenya was not a signatory to the FIFA rules which FKF often call FIFA statutes. Thus they were subject to the Constitution and the Sports Act and any other relevant laws.

33. She further averred that the reinstatement of the removed officials of FKF would hamper the further investigations that need to be undertaken by various government agencies to establish the level and incidence of misappropriation of funds which might lead to prosecution or non-prosecution of the removed officials. Further that Article 13 of the FIFA Code of Ethics conformed to the requirements of chapter 6 of the Constitution of Kenya 2010 which requires all officials of the sports discipline of football globally while managing the sports organizations to maintain professionalism and ethics. Thus, it is ironic for FKF officials to hide behind FIFA statutes while violating National Laws.

34. She urged the court to uphold the appointment of the caretaker committee by the 1st respondent and allow her to implement the recommendations of the preliminary report of the FKF inspection committee.

The 5th & 6th respondents’ response 35. The 5th & 6th respondents filed a response dated December 20, 2021. They denied most of the averments by the petitioners and asserted that the 1st respondent had power pursuant to section 52(1) of the Sports Act to direct the Sports Registrar to conduct an inspection at any time without giving reasons. Accordingly, the 1st respondent authorized the inspection in writing on October 14, 2021 before releasing the information to the press on October 16, 2021. She then appointed an inspection committee on 1October 8, 2021 to undertake the said inspection on specific areas as per the terms of reference.

36. They admitted the fact that the FKF National Executive Committee was disbanded and a caretaker committee appointed by the 1st respondent under section 54 of the Sports Act. The petitioners were also removed under the said provisions, which was lawful. According to them the petitioners reliance on the FIFA statute should not be entertained as the FIFA statute is not jus cogens as provided for under article 2(5) of the Constitution of Kenya 2010. The said statute did not form part of the laws of Kenya pursuant to article 2(6) of the Constitution. Hence the petitioners could be disbanded by the 1st respondent without consulting the FIFA statute.

37. They claimed that, the 1st respondent’s actions to authorize an inspection was within the powers vested in her to run her department to ensure accountability of the misappropriated funds; the inspection was not done in haste as alleged; and the 1st respondent followed the requisite procedure which led to the decision of disbanding the FKF. They claim that contrary to the petitioners’ allegations, they submitted the report to the 2nd respondent after the inspection. She acted on the findings in the report and within the powers provided for under the Sports Act to disband FKF and relieved its officials from duty. Hence the said actions of disbanding the federation and appointing a committee was in accordance with the national values and principles of governance outlined in article 10 of the Constitution and in accordance with article 232(1) (b) and (c) of the Constitution.

38. They stated that FKF was receiving huge funds from the Exchequer for its expenditure which could not be accounted for by it and its officials. This is what informed the disbandment of FKF. They asserted that the petitioners were informed of the nature and reasons for the inspection exercise through a letter dated October 25, 2021 from the inspection committee whose receipt was acknowledged. They were therefore given sufficient reasons pursuant to section 4(2) of the Fair Administrative Action Act, 2015 and the 1st respondent’s action was procedurally fair.

39. According to them, the inspection was conducted in a regular and fair manner and thus justifiable with a lawful outcome; the 1st respondent followed the requisite procedure provided for by the Sports Act, and in accordance with the Constitution before coming up with the decision for disbandment; all the relevant bodies were involved in the decision making. They maintained that the inspection committee’s report and recommendations would not fall within the ambits of articles 14(1) (i), 16 and 19(1) of the FIFA statutesince it was not ratified by Kenya and could not form part of the Law of Kenya under articles 2(5) and (6) of the Constitution.

40. It is their argument that the petitioners have not placed material facts before this court in respect of the rights allegedly violated or evidence of violation of any provisions of the Constitution. They urge the court to dismiss the petition.

1st – 3rd interested parties’ response 41. The 1st - 3rd interested parties filed a replying affidavit by Robert Maoga sworn on November 25, 2021. He deposed that the respondents’ actions in appointing a caretaker committee to run football activities in Kenya was an attempt to remove FKF’s officials without due process and involvement of the principal stakeholders in football, as prescribed under its Constitution.

42. He avers that the respondents’ actions were most prejudicial to the interested parties for the reasons that, the caretaker committee had since stopped all leagues and competitions with the effect that clubs were no longer active and would have to offload their players, coaching staff and other staff. That the clubs cannot access sponsorship from team sponsors and support from the federation by way of grants. They cannot participate in organized football activities as described in the FKF constitution and the FIFA statutes, and may consequently be constrained to wind up and close.

43. He deposed that FIFA had already written to the respondents informing them that they did not recognize the caretaker committee and the consequence would be a ban from all its activities by way of suspension or expulsion under Article 17 of the FIFA statute. This would have the effect on all clubs, all players, referees and coaches being ineligible to take part in international competitions, transfer to other clubs, associate with other countries and participate in any way or benefit from FIFA.

44. He further deposed that the respondents’ actions were made in bad faith for the reasons that, professional sport lay in association with other member countries through the umbrella of FIFA; the sports registrar in her replying affidavit admitted that the law was not complied with specifically section 53 of the Sports Act in the process of the inspection and the appointment of the caretaker committee; the sports registrar had already in her affidavit filed in SDT NO. E006 of 2021 advised that disbanding FKF would be an improper action for the sport; the sports registrar’s actions were premeditated and the inspection was just used as an excuse for an action she had already decided upon and communicated by her letter dated March 30, 2021 sent to the FKF Board.

4th – 8th interested parties’ response 45. The 4th -8th interested parties filed a replying affidavit by Alliy Goshi Juma sworn on November 17, 2021. He deposed that for the almost two years, the chairmen of the country’s County Football Association sought to have the officials of FKF removed and replaced with other new officials. They wanted to address the inequalities faced by football teams and the issue of funds released to FKF by the government to support the football and nurture talent in the country.

46. He deponed that as officials, they had severally pleaded with the Ministry of Sports, Culture and Heritage to release the funds to enable the management and promotion of football at County Level. The 1st respondent responded and indicated that the funds had been released and that the problem was not with the Government. This was what informed the 1st respondent’s action.

47. He further deposed that the Management of the FKF always dismissed /refused to release funds to the counties despite their entitlement. Accordingly, on October 25, 2021, 5 counties joined in petition E 006 of 2021 that sought to have the elections of the officials of the FKF nullified for being unlawful. Hence the inspection was necessary and the exercise carried out by the 1st respondent was timely, legal, justifiable and necessary.

The Petitioners’ submissions 48. The petitioners filed submissions dated December 14, 2021 by Litoro & Omwebu advocates. Counsel submitted that the intervention by the 1st respondent under section 54 of the Sports Act through Gazette Notice No. 12374 of November 12, 2021 was fundamentally flawed, irregular and premised upon an illegal process that rendered the whole process unlawful, null and void for want of statutory and constitutional compliance.

49. He submitted that the inspection report was to be prepared and submitted to the Cabinet Secretary within two weeks from the date of appointment, which was contrary to Regulation 19 paragraph 6 of the Sports Registrar Regulations, 2016 which provides for three (3) months. He contends that the impugned inspection was undertaken within two days and not more than 12 hours. Further, the appointment of the 15 inspectors by the 2nd respondent was without legal foundation/known premise/rule/regulation/criteria and/or policy.

50. He argued that contrary to section 52 (4) of the Sports Act that envisages two outcomes in an inspection report; remedial action or further action, the recommendations of the preliminary report of the FKF inspection Committee dated 5th November 2021 were interim, inconclusive, speculative and founded upon presumptions and therefore insufficient for the purposes of invoking section 54 of the Sports Act. He further argued that the 1st respondent’s action of appointing the caretaker committee and a secretariat of the caretaker committee was in contravention of the FKF Constitution and the Laws of Kenya. That the 1st respondent constructively dismissed the entire general secretariat of FKF as established under Article 62 and 63 of the FKF Constitution contrary to the powers donated to the 1st respondent by section 54 of the Sports Act.

51. Further, that pursuant to section 52(1) of the Sports Act, Fair Administrative Action Act and the Constitution, inspection of the sports organizations was to be undertaken solely by the sports registrar. Upon compliance with sections 52 and 53 of the Sports Act as read with Rule 19 paragraph 8 of the Sports Registrar Regulations, 2016 an entity under inspection was to be granted an opportunity to respond to the findings and recommendations of an inspection report within 14 days from issuance of a notice by the 2nd respondent. Therefore section 54 of the Sports Act could only be invoked after compliance with sections 52 and 53 of the Sports Act hence the 1st respondent contravened section 54 of the Sports Act and the decision was ultravires.

52. Counsel raised concerns about the 2nd respondents’ suitability to undertake a lawful action and objective inspection of the FKF under the law being that she challenged the current elected leaders of the FKF despite being an observer in the said elections and further made numerous allegations that were settled by the Sports Disputes Tribunal in SDT Case No. 3 of 2020. It is counsel’s submission that the inspection and subsequent intervention by the respondents suffered from procedural impropriety since the procedures prescribed by sections 52, 53 & 54 of the Sports Act as read with sections 4(1), (2), (3) and 4(4) (b) of the Fair Administrative Action Act were not adhered to. Consequently, the rules of natural justice were breached, and the petitioners have therefore satisfied all the grounds for review as set out in section 4(3) of the Fair Administrative action Act.

53. Counsel submits that the 2nd respondent acted ultra vires the power donated to her by the Sports Act since, she was not authorized to undertake an inspection of a sports organization in the manner she did; acted in excess of power conferred to her by the Sports Act; acted in contravention of sections 52, 53 and 54 of the Sports Act, Sports Regulations, 2016, Constitution of Kenya and the Fair Administrative Action Act; and was biased or may reasonably be suspected of bias, bad faith and the decision to inspect FKF was taken with an ulterior motive.

54. Relying of section 4 of the Fair Administrative Action Act, article 47 of the Constitution, and on De Smith’s Judicial Review of Administrative Action, they submitted that the said provisions guarantee every Kenyan administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair and argued that all the actions complained of contravened section 7 of the Fair Administrative Action Act.

55. Inviting this court’s attention to the preliminary report counsel submits that the first 54 pages comprised of only the respondents’ skewed interpretation of the law and its disputes with the 1st petitioner on the interpretation of the law together with complaints lodged by election losers who lost to the 2nd petitioner. The same was presented as factual ignoring the fact that some matters had been determined by other judicial bodies. Additionally, the financial queries from page 55 showed lack of appreciation of procedures and banking practice by the 3rd respondent. The report ignored the fact that the petitioners provided the banking transaction records from all accounts; it suggested that not sighting documents in the very short time it spent in the petitioners offices equaled lack of documents; it failed to list any complaint from the Sports and Art Development Fund on the petitioners in handling funds from them; and it lastly lay blame on the Banks, on the Sports and Arts Development Fund and demonstrated the bias of the 2nd respondent.

56. Counsel further submits that the inspection having been conducted in an irregular, and unfair manner could not have a justifiable or lawful outcome. For their submissions they relied on the following cases among others: Republic v Cabinet Secretary for Interior & Co-ordination of National Government & another; Ex parte Applicant; Peter Adiele Mmegwa & another [2020] eKLR; Republic v Public Procurement Administrative Review Board & 2 others [2019] eKLR; and Raila Amolo Odinga & another v Independent Electoral and Boundaries Commissions & 2 others [2017] eKLR.

The 1st – 4th Respondent’s submissions 57. The 1st – 4th respondents submissions dated February 10, 2022, were filed by Learned counsel Thande Kuria for the Attorney General. He substantively reiterated the contents of their replying affidavit sworn by Rose Wasike, submitting that the petitioners were not challenging the constitutionality of sections 52, 53, 54 of the Sports Act and Regulation 19; but they had an issue with the manner in which the 1st & 2nd respondents exercised their statutory mandate. Counsel maintains that by dint of section 52(1) of the Sports Act the 1st respondent was mandated to direct the Sports Registrar any time to cause an inspection of any sports organization without giving reasons for carrying out the said inspection. Further that the genesis of the 1st respondent invoking the powers under section 52(1) of the Sports Act were many complaints lodged at the Cabinet Secretary’s Office, Principal Secretary’s office, the Sports Registrar’s office and the Directorate of Criminal Investigation.

58. Counsel contends that the terms of reference for the FKF inspectors were guided by the provisions of section 52(2), (3) and (4) and section 53 of the Sports Act. He dismissed the allegation that the inspection was arbitrary as the petitioners admitted to correspondences between them and the respondents in their notice of motion seeking conservatory orders and secondly, the allegations were serious and numerous, as outlined at paragraph 9 of the submissions.

59. He submits that the petition had no merit since the FKF and its officials in their operations had been flaunting the Constitution of Kenya 2010, the Sports Act, the Sports Registrar Regulations of 2nd September 2016 and other relevant Laws in many ways as stated in their replying affidavit. He further contends that the there was a deliberate action by the officials of FKF to fail to comply with the Sports Act, the Sports Registrar Regulations and the ideals of the Constitution 2010. Despite having received over half a billion Shillings from the 1st respondent, which is unrebutted, the petitioners insisted that it was a private entity regulated by FIFA and CAF and CECAFA statutes thus could not account for the funds or comply with the provisions for the Sports Act and other relevant Kenyan Laws.

60. Counsel contends that, that position is baseless as the said rules did not form part of international Legal instruments that Kenya was expected to apply after adoption and ratification under article 2 of theConstitution since they were neither treaties nor conventions. Kenya was also not a signatory to the FIFA rules. Hence they were subjective to the Constitution, the Sports Act and other relevant laws.

61. It is counsel’s submission that FKF flouted various provisions of the Sports Act, Second Schedule to the Sports Act and the Sports Registrar Regulations and failed to fully implement the terms and conditions attached to the certificate of registration issued on May 24, 2018. Hence it was good to have the caretaker committee in place to ensure the future administration of FKF adhered to the rule of law.

62. Dismissing the petitioners’ assertions, on the interim report, counsel argues that the efforts by the inspection committee to carry out a thorough inspection of FKF was derailed by the actions of the FKF officials leading up to the committee preparing a preliminary report rather than a final report hence the recommendations made by the Sports Registrar to the Cabinet Secretary in her letter dated November 9, 2021under section 54 of the Sports Act. In any case, the report was interim in nature since further action needed to be undertaken by specialized government agencies. He has urged the court to uphold the appointment of the caretaker committee by the 1st respondent and to allow the 1st respondent implement the recommendations of the preliminary report.

The 5th & 6th respondents’ submissions 63. The 5th & 6th respondents’ submissions dated December 20, 2021 were filed by Muchemi & Co. Advocates. Counsel raises one issue which is whether the 5th and 6th respondents’ appointment was in violation of the Constitution and sections 52 and 53 of the Sports Act, 2013. He submits that the petitioners brought a wide range of issues couched as Sports Act and constitutional violations which did not qualify as such. Further a party who alleges violation of his or her rights must plead with reasonable precision in regard to the manner in which there has been such alleged violation as envisaged inAnarita Karimi Njeru v The Republic (1976 - 1980) KLR 1272.

64. Relying on Joseph Kimani Gathungu v Attorney General & 5 othersConstitutional Reference No. 12 of 2010, he submits that the Constitution of Kenya is value oriented and not just structurally based. Hence the interpretation must be mechanical and guided by the spirit and soul of the Constitution itself. It is counsel’s contention that the petitions fell afoul of article 10 (2) (c) of the Constitution as there were many complaints from different stakeholders ranging from misappropriation of funds by the 1st petitioner, continuous refusal to adhere to the Sports Act and Sports Regulations, holding of illegal elections, refusal to initiate registration of Sports Associations under section 46 of the Sports Act among other complaints.

65. Counsel argues that contrary to the petitioners’ assertion and pursuant to article 24(1) of theConstitution and Regulation 19(4) of the Sports Act, the petitioners’ rights under article 38 (c) of the Constitution were not absolute. Regarding article 47 of the Constitution, he relied on Kenya Revenue Authority vs. Meginya Salim Murgani(Civil Appeal No 108 of 2009) and argues that sections 52 and 53 of the Sports Act and Regulation 19 of the Sports Regulations lay down the procedure for inspection of sports organizations and the intervention of the 1st respondent in Management.

66. Further he submits that there could not be a caretaker committee without the recommendations of an inspection and there could not be an inspection without the issuance of a directive to the Sports Registrar by the 1st respondent. Similarly there could not be an inspection conducted if there was no reason to believe that the Sports organization was in breach of the Sports Act or an irregularity in the manner and conduct of affairs of the Sports organization. It is the deterioration of football in the country and the numerous complaints and allegations against FKF that informed the inspection. Thus the 1st respondent’s act of appointing the 5th and 6th respondents was procedural and legal.

67. Counsel dismissed the petitioners’ assertion on breach of article 47 of the Constitution and submits that before section 54 of the Sports Act is invoked, there has to be an inspection and a report. The said report must have reasonable grounds believed by the inspection committee for the disbandment of the organization. He further submits that the assertion that article 236 had been violated was absurd as FKF was not a State organ within the interpretation of article 260 and neither were the 2nd and 3rd petitioners public officers within the meaning of the said Articles.

68. Counsel relied on Godfrey Paul Okutoyi & others v Habil Olaka & another (2018) eKLR for the issue of there being an alternative remedy in lieu of constitutional remedies and urged the court to hold that the appointment of the 5th and 6th respondents was not in breach of the provisions of the Constitution and the Sports Act. He prayed for dismissal of the petition with costs.

The 1st to 3rd interested parties’ submissions 69. They did not file any submissions ( they are not in the file or in the CTS)

4th to 8th interested parties’ submissions 70. The 4th – 8th interested parties filed submissions dated January 10, 2022 by M M & Mabeya co. advocates. Counsel submits that the inspection of FKF was regular and pursuant to section 52(1) of the Sports Act. Further that the 1st respondent was authorized pursuant to section 52(1) to direct the Sports Registrar to cause for inspection of FKF without giving reasons hence the petitioners claim is unwarranted.

71. Counsel submits that the appointment of FKF Inspection Committee members by the Sports Registrar, was regular and in line with the statutory provisions. He contends that contrary to the petitioners’ assertion, an inspection could take place for any period of time within the three months. Hence two weeks was sufficient as it was not a single inspector undertaking the exercise.

72. He agrees with the 1st respondent’s actions in appointing the 5th and 6th respondents and submits that since the inspection process was regular and lawful, there was urgent need for the 1st respondent’s intervention. While agreeing with the petitioners submission on the two outcomes contemplated out of an inspection report, counsel submits that to be the reason why a caretaker committee had been appointed. It’s mandate was to conduct all affairs of FKF temporarily as further investigations were being conducted into the misappropriation of funds by the FKF officials. This would have been impossible to do with the FKF officials still in office.

73. Regarding natural justice, counsel submits that the petitioners had the opportunity to be heard on the findings and recommendations of the inspection report within fourteen days from the date of the notice but they instead rushed to court claiming that their rights had been infringed. Further thatarticle 10 of the Constitution requires public officers to be bound by the national values and principles of good governance and in this case, good governance, integrity, transparency and accountability. Counsel has argued that the petitioners had not shown whether they tried to comply with the recommendations of the inspection and whether they were constrained on time, asked for an extension and were denied. They had notice of the inspection report and yet they let the 14 days within which they could have been heard lapse without causing to be heard as provided for in regulation 19(8) of the Sports Registrar Regulations.

74. It is counsel’s submission that the inspection and subsequent intervention by the 1st respondent vide the caretaker committee would pave way for open dialogue and a roadmap to the normalization on how football activities in Kenya can be formulated. Further that since the management and running of the FKF was marred with embezzlement of funds and lack of integrity as uncovered by the inspection committee, the FKF officials should comply with the recommendations of the inspection report.

75. He urged that the caretaker committee remains in place and executes its mandate of management, control and conduct of the FKF and ultimately cause for an election of the officials of FKF as this would be in the best interest of the game of football in the country.

Analysis and determination 76. Having carefully read and considered the parties pleadings and submissions, I find the following issues to arise for determination;i.What is the status of the FIFA statutes and its applicability to football in Kenyaii.Whether the 5th & 6th respondents appointment was in violation of the Constitution and the Sports Actiii.Whether the petitioner’s rights were violatediv.Whether the reliefs sought should be grantedi.What is the status of the FIFA statutes and its applicability to football in Kenya

77. The petitioners have insisted that FKF is a private entity regulated by the FIFA, CAF and CECAFA and that it is not subject to the Sports Act. That further, the same form part of the Laws of Kenya and need not be ratified. This came out in their argument while seeking for conservatory orders.

78. The 1st to 4th respondents on the other hand, submitted that it is that position that made it impossible for it to act in accordance with section 53 of the Sports Act making the 2nd respondent invoke section 54 of the Sports Act. They further argued that the FIFA statutes did not form part of the laws of Kenya, are not treaties or convention and are not ratified as envisaged under articles 2(5) and (2 (6) of the Constitution. A position that was echoed by the 5th & 6th respondents and the 4th to 8th interested parties.

79. This issue was well tackled in the case of Robert Macharia v Sports Dispute Tribunal; Football Kenya Federation & 60 others ( Interested Parties) [2020] eKLR, where Nyamweya J, stated;“33. Going by these definitions, the FIFA statutes certainly do not qualify as a treaty or a general rule of international law. The said statutes describe FIFA as a registered association and define its objectives, membership and activities, which while of a global nature and effect, are interventions by FIFA itself, and limited to the organization and regulation of football. FIFA is therefore neither a state or international organization capable of entering into a treaty, and has not entered into any agreement with Kenya for its statutes to qualify as a treaty. Furthermore, its rules have not been created and sustained by the constant and uniform practice of states to assume the character of general principles of international law, but are as a result of FIFA’s and its members and stakeholders deliberate enactment.”

80. One is left to ask then whether the FKF is subject to the Sports Act, the Constitution of Kenya and the other relevant laws as submitted by the respondents and the 4th to 8th interested parties. In their submissions, the 1st to 3rd respondents submitted that the FKF is a sports organization registered under section 47 of the Sports Act. The petitioners have themselves described it in the amended petition as a private organization of an associate nature and a Football Federation recognized by FIFA, CAF and CECAFA, duly registered as a National Sports Organization under the Sports Act, 2013 … The 1st petitioner has also come to court on the basis that the 1st and 2nd respondents contravened their mandate under section 52 of the Sports Act and as a result breached their constitutional rights. This is a clear indication that they are subject to the Sports Act and the Constitution of Kenya and the national laws governing the Nation of Kenya, a fact they admitted in their oral arguments. The other assertions are untenable. FKF is first and foremost subject to the constitution of Kenya and the Laws of Kenya. It receives funding of activities from the National Treasury.ii.Whether the 5th & 6th respondents appointment was in violation of the Constitution and the Sports Act

81. The main argument by the petitioners in this amended petition is that the appointment of the 5th and 6th respondents was done in contravention of the law in the Sports Act and as a result their constitutional rights were violated. All that they cited is captured under paragraph 50 of this judgment. Their position was countered by the respondents and 4th – 8th Interested parties who argued that the 1st respondent adhered to the provisions of section 52 (1), (2), (3) and (4) and section 53 of the Sports Act and Regulation 19 of the Sports Regulations.

82. Section 52 of the Sports Act, 2013 on the inspection of sports organizations provides as follows;52. Inspection of sports organizations(1)The Registrar may, at any time, or if so directed by the Cabinet Secretary, cause an inspection to be made by any person authorized by the Registrar, in writing, of any sports organization, branch, sub-branch, organ, or any person associated with any sports organization, and of its or his books, accounts and records.(2)When an inspection is made under subsection (1), the sports organization, branch, sub-branch, organ or person concerned, and every official and employee thereof shall produce and make available to the person making the inspection all the books, accounts, records and other documents of the sports organization, branch, sub-branch, sub-branch organ or person, its or his affairs and conduct, as the person making the inspection may require, and within seven days or such longer period as he may direct, in writing.(3)A person who fails to produce any books, accounts, records, document, correspondence, statements, returns or other information within the period specified in the direction under subsection (2) contravenes this Act:Provided that:(a)the books, accounts and other documents required to be produced shall not, in the course of inspection, be removed from the premises of the sports organization, branch, sub-branch, organ or person, or other premises at which they are produced;(b)the person making the inspection may make copies of any books, accounts and other documents required for the purposes of his report; and(c)all information obtained in the course of the inspection shall be treated as confidential and used solely for the purposes of this Act.(4)The person conducting an inspection shall submit a report to the Registrar, and the report shall specify any breach or non-compliance with the requirements of this Act and any regulations made thereunder, any irregularity in the manner of conduct of affairs of the sports organization, branch, sub-branch, discovered in the course of the inspection that warrants, in the opinion of the person making the inspection, remedial action or further investigation.

83. Section 53 on sports direction after inspection provides53. Directions to sports organization after inspectionThe Registrar may, by notice in writing, and after giving the sports organization, branch, sub-branch or person, reasonable opportunity of being heard, require the sports organization, branch, sub-branch, organ or person to comply, within such period as may be specified, with such directions as he considers necessary in relation to any matter arising out of a report made under section 52(4).

84. Section 54 on the intervention by the Cabinet Secretary provides:54. Intervention by Cabinet Secretary in management(1)Where a sports organization fails to comply with the recommendations of an inspection, the Cabinet Secretary may—(a)appoint any person or committee to assume the management, control and conduct of the affairs of a sports organization, to exercise the powers and functions of the sports organization to the exclusion of its officials, including the use of its corporate seal, where the sports organization concerned has been unable to conduct its affairs in a proper manner; or(b)remove any official of a sports organization who, in the opinion of the Cabinet Secretary, has caused or contributed to any contravention of any provision of this Act, or any regulations or directions made thereunder or to any deterioration in the financial stability of the sports organization or has conducted himself in a manner which is detrimental to the interest of the relevant sporting discipline, or which has brought the sporting discipline into disrepute.(2)The appointment of a person or committee under this section shall be for such period as the Cabinet Secretary shall specify in the instrument of appointment, but shall not exceed six months.(3)A person or committee shall, upon assuming the management, control and conduct of the affairs of a sports organization, discharge his or its duties with diligence and in accordance with sound management and financial principles.

85. The Sports Registrar Regulations, 2016 under Part V provides for inspection. Regulation 19 provides as follows:19. (1)The Registrar shall appoint an inspector to carry out inspections of sport organizations pursuant to section 52 of the Act.(2)An inspector appointed under paragraph (1), shall produce the appointment letter prior to entering the premises of the sport organization which the inspector is required to inspect.(3)Upon production of the appointment letter under paragraph (2), the officials or employees of the concerned sport organization shall not hinder, block or prevent the inspector from entering the premises.(4)Where the inspector considers it necessary to investigate the conduct of an official or employee of the sports organization, the inspector may require such officer or employee to step aside in order to allow investigations to be done.(5)The Registrar may at any time remove a person as an inspector if that person is unfit to act as an investigation officer or is unable to discharge the function of such an inspection.(6)An inspection shall not exceed a period of three months from the date of appointment of an inspector but in exceptional circumstances the Registrar may extend the inspection period.(7)The Registrar shall, within thirty days of receipt of the inspection report under section 52 (4) of the Act, notify the concerned sport organization of the findings of the inspection in writing.(8)Upon receipt of the report under paragraph (7), the sports organization shall have an opportunity to be heard on the findings and recommendations of the inspection report within fourteen days from the date of the notice.

86. It is explicit from the provisions of the law cited above that sections 52 , 53 and 54 of the Sports Act and Regulation 19 of the Sports Registrar Regulations, 2016 are applicable in these circumstances. What is clear is that the Sports Registrar may at any time, or if directed by the Cabinet Secretary cause an inspection on any sports organization. After conducting the inspection, the inspection report is submitted to the Registrar.

87. Section 53 of the Sports Act is clear that after the inspection, the Sports Registrar may by notice in writing, and after giving the concerned sports organization a reasonable opportunity of being heard, require the said organization to comply within a period as may be specified, with such directions as he/she considers necessary in relation to any matters arising out of the report. Closely related to that section is section 54 of the Sports Act which is invoked when the sports organization fails to comply with the recommendations issued by the sports registrar after an inspection. That is particularly when, the Cabinet Secretary may intervene and appoint any person or committee to run the affairs of a sports organization.

88. The functions of the Sports Registrar are also echoed in Regulation 19 of the Sports Registrar Regulations, 2016 as set out above. Based on the above analogy of the law, it is undisputed that the Cabinet Secretary may direct the Sports registrar to cause an inspection on a sports organization. It is also undisputed that the said directive was issued vide internal memo on October 14, 2021to the sports registrar by the 1st respondent, a fact also pleaded by the respondents and as evidenced in their annexures attached to their replying affidavit. It is pursuant to the said directive from the 1st respondent, that the 2nd respondent appointed inspectors to undertake the inspection on the 1st petitioner on October 18, 2021. The said appointed committee (3rd respondent) further informed the petitioners of the impending inspection vide letter dated October 25, 2021 whose receipt was acknowledged and as admitted in their amended petition. They also presented their appointment letters to them before carrying out the inspection together with the terms of reference. I find this to have been procedurally correct.

89. After the inspection the 3rd respondent submitted its report on November 5, 2021. The 2nd respondent in turn submitted the report and recommendations to the 1st respondent on November 9, 2021. This is also confirmed by the 5th and 6th respondents. What is clear is that the report and findings of the inspection were submitted to the 2nd respondent before being submitted to the 1st respondent contrary to the assertion by the petitioners. It is not disputed that the 2nd respondent submitted the report and made recommendations to the 1st respondent without giving the 1st petitioner and its officials a chance to be heard as envisaged in the law. She further, did not submit any recommendations to the petitioners requiring them to remedy anything but instead invoked section 54 of the Sports Act.

90. This has also been acknowledged in the 1st to 3rd respondents’ replying affidavit, where it is admitted that the 2nd respondent was unable to implement section 53 as required due to the petitioners’ conduct and that the only recourse was to request the 1st respondent to intervene under section 54 of the Sports Act. In normal circumstances the said section could only be invoked once the petitioners had failed to comply with the recommendations of the 2nd respondent after the inspection and this was after being heard. That was not the case herein.

91. Another issue I would like to address is the issue of the petitioners being given reasons and prior notice before the commencement of the inspection. The said notice was given and this has been acknowledged in their amended petition. Reasons were however not given. Upon reading the provisions of the law cited herein above, I do not find any provision mandating either the 1st respondent or the 2nd respondent to give reasons for doing the inspection and giving them sufficient time to respond. The said argument is therefore baseless and not founded on the Law.

92. A look at the petitioners’ amended petition and submissions shows an argument raising an issue on Regulation 19(6) of the Registrar Sports Regulations, 2016 that the inspection was done in a hastened manner and not for a period of three months as stipulated therein. In my view, the said argument cannot stand. The reason being that the said Regulation provides that the inspection shall not exceed a period of three months from the date of appointment but which may be extended in exceptional circumstances. This in my interpretation means that the inspection can be done in any number of days, even hours provided that it does not exceed three months subject to of course the exceptional circumstances. I do not find fault in the inspectors conducting the inspection in 12 hours as alleged. The critical thing is for them to undertake the exercise professionally.

93. Another issue and a prayer being sought is that it was contrary to the law for the 2nd respondent to appoint more than one inspector. The argument by the 1st to the 3rd respondents in their replying affidavit is that the 2nd respondent being a regulator needed persons of multiple agencies with various expertise to tackle different areas of accusations and allegations against FKF hence the appointment of persons from different organizations to work collectively because of the different allegations that had been raised against FKF. Mativo J. had this to say in the case of Republic v Fazul Mohamed & 3 othersex-parte Okiya Omtatah Okoiti [2018] eKLR“24. Decisions by public bodies must conform to the Constitution and be interpreted and applied within its normative framework.[38] Account must be paid to the structure and design of the Constitution, the role that different organs of government and law enforcement must play and the value system articulated in article 10 of the Constitution and the Bill of Rights. The action or decision complained of must conform to the statutory provisions and must pass the Constitutional muster.25. In John Wachiuri T/A Githakwa Graceland & Wandumbi Bar & 50 others v The County Government of Nyeri & ano[39] the court emphasized that there are three categories of public law wrongs which are commonly used in cases of this nature. These are:-a.Illegality- Decision makers must understand the law that regulates them. If they fail to follow the law properly, their decision, action or failure to act will be "illegal". Thus, an action or decision may be illegal on the basis that the public body has no power to take that action or decision, or has acted beyond its powers.b.Fairness- Fairness demands that a public body should never act so unfairly that it amounts to abuse of power. This means that if there are express procedures laid down by legislation that it must follow in order to reach a decision, it must follow them and it must not be in breach of the rules of natural justice. The body must act impartially, there must be fair hearing before a decision is reached.c.Irrationality and proportionality- The courts must intervene to quash a decision if they consider it to be demonstrably unreasonable as to constitute 'irrationality" or 'perversity' on the part of the decision maker. The benchmark decision on this principle of judicial review was made as long ago as 1948 in the celebrated decision of Lord Green in Associated Provincial Picture Houses Ltd v Wednesbury Corporation[40]:-"If decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere...but to prove a case of that kind would require something overwhelming..."Also see: (i) Republic v Non- Governmental Organizations Co-ordination Board ex-parte Okiya Omtatah Okoiti & 2 others[2017] eKLR

94. In this case the 2nd respondent was directed by the 1st respondent in line with section 52(1) of the Sports Act, to conduct an inspection. The inspection is to be conducted by any authorized person. The 1st and 3rd respondents have explained why more than one person was appointed. What does the word “person” mean? Under article 260 of the Constitution, it is defined as: “Person” includes a company, association or other body of persons whether incorporated or unincorporated.The Interpretation and General Provisions Act (cap 2 Laws of Kenya) gives a similar meaning. The Sports Act does not refer to the word inspector for the court to restrict itself to the plural of “inspectors”. It refers to the words “any person.” Regulation 19 (1) states that the Registrar shall appoint an inspector. The Petitioners have submitted that only one inspector had to be appointed and not several.

95. Section 72 of the Sports Act makes provision for Regulations. It states:Section 72 – RegulationsThe cabinet secretary may make regulationsa.Generally for the better carrying into effect the provisions of this Act.b.Prescribing anything that be prescribed under this Act. These regulations are meant to give support to the implementation of the Act and not to sabotage it.

96. Going by the explanation given by the respondents and 4th – 8th Interested parties in the replying affidavits which were never rebutted by the petitioners nor 1st – 3rd Interested parties, I am satisfied that there was a lot to be inspected at the 1st petitioner’s organization. One person could not have managed that exercise. In the instructions of the 1st respondent of October 15, 2021 she indicated that the Ministry would assign the required technical officers and any other support to perform the exercise. It goes far to show that even the 1st respondent felt the weight of the exercise. One person alone in the name of an inspector would not have managed.

97. Further the definitions of the word “person” given above at paragraph 94 is not confined to one person as the petitioners would like this court to believe. Secondly, the Regulations are meant to give support to the implementation of the Act and not to sabotage it. The Act talks of “person” while the regulations confine the word “person” to an inspector which is not proper.

98. My interpretation therefore is that the word “person” should not be given the ordinary meaning. It must be given the meaning assigned to it by Constitution of Kenya 2010 and the the Interpretation and General Provisions Act (cap 2 Laws of Kenya). Contrary to the petitioners assertion, the inspectors were identified vide a list sent to the CEO FKF on 27th October, 2021 upon a request being made. The Inspectors also presented their appointment letters and informed the petitioners their reason for inspection and the terms of reference. It was an open exercise. The petitioners then availed space for them to work from.(iii)Whether the Petitioners rights were violated.

99. The next issue is whether the petitioners were served with the report and recommendations and given an opportunity to be heard or not. Regulation 19(7) and (8) of the Act provide:(7)The Registrar shall within thirty (30) days of receipt of the inspection report under section 52(4) of the Act, notify the concerned sport organization of the findings of the inspection in writing.(8)Upon receipt of the report under paragraph (7) the sports organization shall have an opportunity to be heard on the finding and recommendations of the inspection report within fourteen days from the date of the notice.The Petitioners also challenge the appointment of the 5th and 6th respondents.

100. The petitioners argued that their rights under articles 47 and 50 of the Constitution were contravened by reason of the aforesaid actions of the respondents. This applied to sections 52, 53 and 54 of the Sports Act as read with sections 4(1), (2), (3), (4) (b) of the Fair Administrative Action Act.

101. The 1st–6th respondents countered this by stating that the 1st and 2nd respondents acted in accordance with the law. They referred to Article 24(1), Regulation 19(4) of the Sports Act and argued that the petitioners rights under article 38 of the Constitution were not absolute. They dismissed the assertion that article 236 had been violated. The 4th - 8th Interested parties echoed the submissions by the respondents on this. The 1st – 3rd Interested parties complained of non involvement as stakeholders in the respondents’ actions. It is not clear how they ought to have been involved.

102. Article 47 of the Constitution, provides for the right to fair administrative action. Sub- Article (1) provides “Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.”

103. In Governmental Organizations Co-ordination Board & another [2018] eKLR, the Court observed that;“35. The Constitution is the Supreme law of the Republic and decrees as such in article 2(1). It binds all persons and all state organs in the course of performing their duties. The provisions in Article 47 to the extent that they require that an administrative action to be expeditious, fair, lawful and reasonable, and that where such an action adversely affects a person’s right or fundamental freedom, the affected person is entitled to be given written reasons for the action, is a constitutional control over administrative bodies to ensure that they do not abuse their power and that individuals concerned receive fair treatment when actions are taken against them. Failure to observe this constitutional decree, for all intent and purposes, undermines the rule of law and the value of article 19(1) of the Constitution which states that the Bill of Rights is an integral part of Kenya’s democratic state as the framework for social, economic and cultural policies..”Also see the cases of:(i).Judicial Service Commission v Mbalu Mutava & another [2014] eKLR.ii.Rigal Mohammed Osman v Inspector General of Police & 3 others [2015] eKLR.iii.Onyango Oloo v Republic[1986 – 1989] EA 456. In Republic v Chief Justice of Kenya & 6 others ex-parte Moijo Mataiya Ole Keiwua [2010] eKLR the 3- judge bench cited with approval the case of Tellis v Bombay Municipal Corporation[1987] LRC (Constitution) 351 where Chandrachand C.J. stated;“The right to be heard has two facts, intrinsic and instrumental. The intrinsic value of that right consists in the opportunity which it gives to individuals or groups, against whom decisions taken by public authorities operate, to participate in the proceedings by which those decisions are made, an opportunity to express their dignity as persons.”At page 375 he said;“The ordinary rule which regulates all procedures is that persons who are likely to be affected by the proposed/likely action must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given individually or collectively, depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in circumstances which warrant it. Such circumstances must be shown to exist, when so required, the burden being upon those who affirm their existence.”I have equally referred to section 4 of the Fair Administrative Action Act, 2015.

104. From the replying affidavit by the 1st respondent it has been shown that there were too many complaints (annexture No.5) against the petitioners I the offices of the 1st and 2nd respondents, the Principal Secretary and the Director Criminal Investigations. I have outlined this at paragraph 28 of this judgment. The 2nd respondent was instructed by the 1st respondent to carry out the inspection on October 14, 2021 (Annexture No.15). This was an internal Memo. The inspection exercise commenced on October 25, 2021. The report from the chair of the Inspection Committee was handed to the 2nd respondent on November 5, 2021. She submitted it with her recommendations to the 1st respondent, on November 9, 2021.

105. There is evidence that these findings and recommendations were never brought to the attention of the petitioners before the appointment of the caretaker committee which was appointed on 12th November vide gazette notice no.12374. It is therefore true that petitioners were not given an opportunity to be heard which goes against the tenets of natural Justice and the Fair Administrative Action Act. Were there good reasons given to explain such drastic actions? Before the appointment of the committee the 1st petitioner on November 9, 2021 filed a petition herein dated November 8, 2021 seeking conservatory orders to stay the inspection that was allegedly ongoing. By that time the inspection committee had already finished its assignment and its report handed over to the 2nd and 1st respondents respectively. Instead of engaging the respondents the 1st petitioner rushed to court to stop the inspection which was complete.

106. Under section 53(4) of the Sports Act “the Registrar may, by notice in writing…” The word used here is ‘May’ and not ‘shall’ which is not obligatory. Are there instances when the 2nd respondent may not issue the notice in writing as was the case here? From the averments in the 2nd respondents replying affidavit (which were never rebutted) the petitioners are accused of so many breaches of the Law, involvement in unethical activities, misappropriation of public funds and defiance of directives by the 2nd respondent.

107. The 2nd respondent avers that she did not therefore see the need of informing them of the inspection report and her recommendations because they had confessed to not being subject to the Sports Act. The petitioners were accused of ignoring warnings by the 2nd respondent following their defiance of the written law and claiming to be only subject to FIFA, CAF and CECAFA statutes. The petitioners never rebutted this serious accusations. The 2nd respondent also averred that if the inspection had not come up, she would have cancelled FKF’s certificate of registration No.45 of 24th May, 2018. The reason being non-compliance with the Constitution and the Sports Act and clear conditions given to them. Again the petitioners never rebutted this. The inspection was therefore not just about finances alone. It is about the entire management of the FKF as an organization.

108. The replying affidavit by the 4th- 8th Interested parties and their submissions which were never rebutted bring to light the fact that a number of things happening at FKF required urgent interrogation and intervention. It is all about Finances and Management and the officials of FKF, some of whom are the 2nd and 3rd petitioners. Why were the petitioners not complying with the instructions of the 2nd respondent on things like amendment of the Constitution, Complying with section 50 of the Sports Act, registration of County football associations, submission of yearly annual returns, giving funds to other football clubs and associations like the 4th – 8th Interested parties among others?

109. All these things and others formed the complaints that led to the 1st respondent taking the action she took through the 2nd respondent to save the face of the Football Kenya Federation. As explained by the 2nd respondent even conducting the inspection was a real struggle making her submit the report on November 9, 2021 instead of November 2, 2021. This coupled with the petitioners’ attitude whenever she issued instructions for compliance by them made her see no reason for serving them with the report before presenting it to the 1st respondent. This infringed on their rights to being heard yes, but they contributed to it by themselves. They have no one but themselves to blame.

110. It must also be noted that the caretaker committee appointed to run the affairs of FKF was gazetted on November 12, 2021. Its term of six (6) months ran from November 11, 2021. This court not being privy to the Recommendations and the outcome of any investigations carried out cannot reinstate the National Executive Committee of FKF which was disbanded by the 1st respondent vide the gazette notice that appointed the Caretaker Committee. The reason is that the 1st Respondent acted within her powers owing to the dire situation at FKF.

111. After all the above deliberations I find that save for the issue of the petitioners not being served with the report/recommendations for their reaction and which has been well explained, I find that the respondents acted within their mandate under the Sports Act to save FKF. As a result, I find the petition lacking merit and I decline to grant the declarations sought and make the following orders:(i)The 2nd respondent to serve the petitioners with the inspection report plus her recommendations within 14 days.(ii).Save for that the petition is dismissed.(iii).I have considered the issue of costs which generally follow the event and are at the sole discretion of the court. In the circumstances of this case I find it raises a lot of public interest since it touches on Football in Kenya. I therefore order each party to bear its own costs.

DELIVERED VIRTUALLY, SIGNED AND DATED THIS 10THDAY OF MAY, 2022 IN OPEN COURT AT MILIMANI, NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURTPage 12 of 12