[2025] KESDT 52 (KLR)

Galaxy United FC v Korir & another; Seka FC (Homabay County) & 2 others (Interested Parties) (Petition E048 of 2024) [2025] KESDT 52 (KLR) (5 February 2025) (Ruling)

Neutral citation: [2025] KESDT 52 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Petition E048 of 2024

Gabriel Ouko, Chair, MN Kimani & Benard Murunga Wafula, Members

February 5, 2025

Between

Galaxy United Fc

Applicant

and

Patrick Korir

1st Respondent

Collins Opiyo

2nd Respondent

and

Seka Fc (Homabay County)

Interested Party

Kisui Inter Lions (Homabay County

Interested Party

Gachuba All Star Fc

Interested Party

Ruling

Background 1. The Applicant, Galaxy United FC, participated in the Football Kenya Federation (FKF) elections in Nyamira County held on 14th November, 2024. Following these elections, a dispute arose regarding the legitimacy of certain elected officials and subsequent administrative decisions made by the FKF leadership.

2. On 19th November, 2024, the 1st Respondent, in his capacity as the acting General Secretary/CEO of FKF, made a decision that the Applicant contends was illegal and ultra vires. This decision involved the reinstatement of Luthers Mokua as the chairman of Nyamira FKF County Executive, which the Applicant claims was done in contravention of proper electoral procedures and FKF regulations.

3. The Applicant, seeking to resolve this dispute through internal mechanisms, filed FKF Appeal Petition No. 16 of 2024 dated 20th November, 2024. They complied with all procedural requirements, including payment of the requisite appeal fee of Kshs. 100,000/-. Further, an appeal hearing was scheduled for 22nd November, 2024, but this hearing never materialized.

4. Subsequently, on 17th December, 2024, the Applicant forwarded another complaint to the CEO of FKF, but received no response. A further appeal was filed on 18th December, 2024, which also remained unactioned.

5. Faced with continued inaction and what they perceived as systemic obstruction of their right to be heard, the Applicant filed a Statement of Claim and Notice of Motion Application before this Tribunal both dated 20th December, 2024. The application sought, among other things, orders declaring the 1st Respondent’s decision of 19th November, 2024, illegal, unlawful, incompetent, defective, and null and void ab initio. The Applicant also sought orders compelling the recognition of the properly elected officials of Nyamira County as per the election results of 14th November, 2024.

6. The Respondents filed a Preliminary Objection dated 8th January, 2025 challenging the jurisdiction of this Tribunal. Their objection was premised on two main grounds:i.first, that the application offends the doctrine of exhaustion of internal judicial forums as provided under Articles 59, 65, and 67 as read together with Article 70 of the FKF Constitution; andii.second, that the Tribunal lacks jurisdiction to determine the matter by virtue of section 58 of the Sports Act.The Respondents argue that the Applicant should have first exhausted the Internal Dispute Resolution Mechanisms available within the FKF structure, specifically through the Arbitration Committee and the Appeals Committee, before approaching this Tribunal.

The Respondents’ Case 7. In their Preliminary Objection, the Respondents’ primary argument rests on the doctrine of exhaustion of internal dispute resolution mechanisms as established under the FKF Constitution. They specifically point to Article 70 of the FKF Constitution, which mandates that recourse may only be made to an Arbitration Tribunal once all internal channels of FKF have been exhausted.

8. The Respondents further cite the recent High Court decision in Republic vs the Sports Disputes Tribunal & Others Ex Parte Style Industries Limited 2019 Miscellaneous Application No. 45 OF 2019 eKLR, where the court emphasized that the need to exhaust internal dispute resolution mechanisms applies to tribunals as much as it applies to courts. They also draw attention to Articles 46 and 59 of the FKF Constitution, which establish the Arbitration Committee and grant it power to arbitrate conflicts arising between FKF members.

9. The Respondents maintain that as the Applicant is indisputably a member of FKF by virtue of Article 11 of the FKF Constitution, they are bound by these internal dispute resolution procedures.

10. The Respondents further argue that the Application raises significant disciplinary complaints against them, which should properly be heard first by the FKF Disciplinary Committee established under Article 65 of the FKF Constitution. They emphasize that the allegations of illegal actions, ultra-vires conduct, and abuse of the FKF Constitution are matters that fall squarely within the purview of the Disciplinary Committee.

11. The Respondents point to previous decisions of this Tribunal, particularly in Samson Cherop vs Nick Mwendwa and 3 Others, SDTSC Petition No. E017 of 2023 where the Tribunal upheld the exhaustion doctrine. They argue that the present case presents no exceptional circumstances that would warrant bypassing these established internal mechanisms. Additionally, they contend that any dissatisfaction with the decisions of these committees could still be appealed to the FKF Appeals Committee under Article 69 of the FKF Constitution.

12. On the question of jurisdiction under Section 58 of the Sports Act, the Respondents advance a narrow interpretation of the Tribunal’s mandate. They argue that the Tribunal’s jurisdiction under Section 58 is primarily appellate in nature.

13. Further, the Respondents emphasize that Section 58(b) requires all parties to agree to refer the matter to the Tribunal, which they have not done. They maintain that their objection to the Tribunal’s jurisdiction on grounds of non-exhaustion of internal mechanisms constitutes a lack of agreement under Section 58(b). Furthermore, they contend that allowing the Application to proceed would effectively render the internal dispute resolution mechanisms under the FKF Constitution redundant.

14. The Respondents also raise concerns about the precedential impact of allowing the Application to proceed without exhaustion of internal remedies. They argue that such a decision would open floodgates for similar applications, undermining the authority and effectiveness of sports organizations’ internal governance structures.

15. The Respondents cite the case of Migori Youth FC v Football Kenya Federation, SDTSC No. E043 of 2023, to emphasize the importance of following proper procedural channels in sports disputes. They contend that the Applicant’s claim of ineffectiveness of internal mechanisms is speculative and premature, as these mechanisms have not been fully tested. Additionally, they argue that maintaining the integrity of sports organizations’ internal dispute resolution mechanisms is crucial for the efficient administration of sports in Kenya.

The Applicant’s Case 16. The Applicant argues that while they did attempt to utilize FKF’s internal dispute resolution mechanisms, their efforts were thwarted by the Respondents’ inaction and failure to dispose of their appeal. They note that they paid the required Kshs. 100,000 appeal fee and had an appeal hearing scheduled for 22nd November, 2024, which never materialized. They filed complaints with both the ad hoc committee and the CEO of FKF, but received no response. Through these actions, the Applicant contends they sufficiently exhausted the available internal mechanisms before approaching the Tribunal.

17. The Applicant maintains that even in circumstances where internal mechanisms are not exhausted, a party can still approach the Tribunal for recourse in accordance with constitutional provisions guaranteeing access to justice. They argue that the existence of an internal dispute resolution mechanism does not bar the Tribunal’s jurisdiction to decide matters. They contend that requiring mandatory internal resolution would effectively deny justice, especially when challenging the very body whose illegal acts are in question.

18. On the issue of jurisdiction under Section 58 of the Sports Act, the Applicant argues that their case clearly qualifies as a sports-related dispute since it concerns FKF elections in Nyamira County. They note that while the Sports Act does not explicitly define sports-related disputes, these generally include any matters directly or indirectly linked to sports administration and development. They cite international precedent from the Court of Arbitration for Sport supporting a broad interpretation of what constitutes a sports dispute

19. The Applicant challenges the Respondents’ assertion that all parties must agree for the Tribunal to have jurisdiction, citing case law stating that jurisdiction either exists or it doesn’t and cannot be granted by consent of parties. They point out that the Tribunal has already demonstrated its jurisdiction by reviewing their claim and issuing interim orders on 23rd December, 2024. They argue this makes the preliminary objection merely an academic exercise.

20. The Applicant emphasizes that the Tribunal is a specialized body whose primary purpose is hearing sports-related disputes, and should not deny its mandate to provide aggrieved parties with a forum for their issues. They argue that the Respondents' preliminary objection was made in bad faith to derail the hearing of their matter. They note that the Tribunal has previously stated it is competent to determine its own jurisdiction based on the facts of each case. They conclude that forcing them to return to internal mechanisms would be futile given the demonstrated lack of response from FKF.

Issues For Determination 21. Based on the foregoing, the issues to be determined by the Tribunal are;i)Whether the Preliminary Objection raised by the Respondents was confined to matters of law.ii)Whether the Sports Disputes Tribunal has jurisdiction to hear this matter.iii)Whether the Applicant has offended the doctrine of exhaustion by filing the present suit

Analysis Whether the Preliminary Objection raised by the Respondents was confined to matters of law. 22. The parameters for evaluating a preliminary objection are well-established in legal precedent, particularly the landmark Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd case. A preliminary objection must strictly raise pure points of law, without requiring the ascertainment of any factual disputes. The fundamental test is whether the objection, if successful, would dispose of the entire suit without necessitating further evidentiary proceedings. The same provides that:“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. Examples are an objection to the Jurisdiction of the Court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

23. Therefore, for a preliminary objection to succeed the following tests ought to be satisfied: Firstly, it should raise a pure point of law; secondly, it is argued on the assumption that all the facts pleaded by the other side are correct; and finally, it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. A valid preliminary objection should, if successful, dispose of the suit.

24. The threshold for preliminary objections is critically high, demanding that the objection be purely based on a point of law. This means the objection must be arguable solely on the basis of existing legal provisions, constitutional interpretations, or established legal principles. The objection cannot rely on contested facts or require the tribunal to delve into evidentiary investigations to determine its merit.

25. In the current case, the Respondents’ preliminary objection appears to straddle the line between legal principle and factual complexity. While they cite legal provisions like Article 70 of the FKF Constitution and Section 58 of the Sports Act, which are clearly points of law, their arguments increasingly touch on the practical implementation and effectiveness of these provisions, which introduces factual considerations.

26. The doctrine of exhaustion of internal remedies, while a legal principle, cannot be evaluated in absolute isolation from its practical application. The Applicant’s submissions highlight critical factual nuances: they paid the required appeal fee, had a hearing scheduled that never materialized, and received no substantive response to their complaints. These factual elements challenge the theoretical legal framework of internal dispute resolution of the Federation.

27. This Tribunal must therefore carefully distinguish between the legal framework’s existence and its actual functionality. A legal provision mandating internal dispute resolution becomes problematic if those mechanisms are demonstrably ineffective, biased, or systematically unresponsive. The question then becomes not just whether internal mechanisms exist, but whether they genuinely provide a meaningful path to justice.

28. Judicial systems including Courts and Tribunals have consistently recognized that rigid adherence to internal dispute resolution can sometimes become a procedural barrier rather than a justice-facilitating mechanism. The constitutional right to access justice must be balanced against procedural technicalities. When internal mechanisms appear more performative than substantive, tribunals must retain the discretion to intervene.

29. The Respondents’ objection relies heavily on procedural arguments about jurisdiction and exhaustion of internal remedies. However, their submissions do not convincingly demonstrate that the Applicant’s internal remedy attempts were inadequate or that the available mechanisms were genuinely designed to provide fair resolution. This suggests the objection moves beyond a pure point of law into a more nuanced territory.

30. This Tribunal is mandated to provide access to justice to sports related matters, which sometimes requires a flexible interpretation of procedural requirements. The core objective is resolving disputes effectively, not creating insurmountable procedural obstacles. The Sports Act and the Tribunal’s mandate suggest a broad, purposive approach to jurisdiction that prioritizes dispute resolution over technical procedural barriers.

31. Critically, the Respondents have not definitively proven that the internal mechanisms they reference were functioning, impartial, or genuinely accessible at the time of the Applicant’s complaint. Their objection seems to rely more on the theoretical existence of these mechanisms rather than their practical efficacy. This introduces factual considerations that complicate a purely legal assessment.

32. Ultimately, while the preliminary objection contains legal arguments, its reliance on contested factual assertions about the effectiveness of internal dispute resolution mechanisms means it cannot be considered a pure point of law. The Tribunal should therefore be inclined to look beyond procedural technicalities and focus on the substantive issues of dispute resolution and access to justice.

Whether the Sports Disputes Tribunal has jurisdiction to hear this matter. 33. The jurisdiction of the Sports Disputes Tribunal (SDT) is a critical matter that requires comprehensive interpretation noting that jurisdiction should be conferred by law and appreciating that this should ordinarily be beyond a narrow reading of the law including Section 58 of the Sports Act.

34. The legislative intent behind the provisions of the Sports Act were to create a comprehensive, accessible, and specialized dispute resolution mechanism for sports-related matters. The Tribunal’s jurisdiction is not merely a matter of explicit consent but a function of the broader regulatory framework governing sports organizations.

35. Section 46 of the Sports Act mandates that all sports organizations must register and submit a constitution that includes dispute resolution mechanisms. This requirement is not a mere procedural formality but a substantive condition that integrates sports organizations into a comprehensive dispute resolution ecosystem. The Second Schedule further elaborates on the constitutional requirements, emphasizing the need for clear, accessible internal dispute resolution processes. By mandating these provisions, the legislature intended to create a structured approach to sports dispute resolution that goes beyond traditional jurisdictional limitations. The registration process itself implies a tacit agreement to submit to the Sports Disputes Tribunal’s jurisdiction for sports-related matters.

36. The interpretation of Section 58 must be understood in light of the broader legislative framework and constitutional principles of access to justice. While the section initially appears to require mutual consent for the Tribunal to hear a matter, a holistic reading suggests a more expansive jurisdictional mandate. The phrase “sports-related disputes” in Section 58(b) is deliberately broad, indicating legislative intent to provide a comprehensive dispute resolution mechanism.

37. The present case involves a dispute directly related to FKF elections in Nyamira County, which falls squarely within the definition of a sports-related dispute. The Applicant’s claims concern the electoral process, administrative decisions, and governance issues within a sports organization, precisely the type of matter the Sports Act intended the Tribunal to address. The dispute’s direct connection to sports administration and organizational governance demonstrates the alignment with Section 58’s broad jurisdictional mandate. The Tribunal is uniquely positioned to understand and resolve such complex intra-organizational conflicts that require specialized knowledge of sports governance.

38. Rule 6 of the Sports Disputes Tribunal Rules provides additional substantive support, allowing claims to be instituted through a statement of claim that concisely outlines the nature and grounds of the dispute. This procedural provision reflects the legislative intent to create an accessible, flexible mechanism for resolving sports-related conflicts. It militates against overly restrictive interpretations of jurisdictional boundaries.

39. The Tribunal’s jurisdiction is further supported by the principle of “generalia specialibus non derogant,” which holds that a specific law overrides a general one as held in the case of Maqbull Abdi Karim v. Gor Mahia Football Club [insert citation of case]. In the context of sports disputes, the Sports Act represents a specialized legal framework that takes precedence over general dispute resolution mechanisms. This principle ensures that sports-related disputes are addressed through a specialized forum that understands the unique dynamics of sporting organizations and competitions.

40. The Tribunal is not just an alternative dispute resolution mechanism but a specialized judicial body with expertise in sports-related legal issues. Its jurisdiction extends beyond traditional judicial constraints, reflecting the unique nature of sports governance and competition.

41. The registration of sports organizations under Section 46 implies a comprehensive framework of rights and obligations that inherently includes dispute resolution mechanisms. When a sports organization registers, it implicitly agrees to the jurisdictional framework established by the Sports Act, including the Sports Disputes Tribunal’s authority. This approach transforms the consent requirement from an explicit, bilateral agreement to an implicit, systemic understanding embedded in the sports organizational framework. The registration process itself becomes a form of constructive consent, acknowledging the Tribunal’s role in maintaining the integrity of sports governance.

42. Further, the constitutional right to access justice further supports a broad interpretation of the Tribunal’s jurisdiction. The Sports Disputes Tribunal is not merely an administrative body but a specialized judicial mechanism designed to provide effective, timely, and expertise-driven resolution of sports-related disputes. By creating a dedicated forum for sports disputes, the legislature intended to remove barriers to justice that might exist in traditional court systems. Therefore, the Tribunal’s jurisdiction should be interpreted as a constitutional imperative to provide accessible, specialized dispute resolution for sports stakeholders.

43. Ultimately, the determination of jurisdiction should be guided by the substantive nature of the dispute, the parties involved, and the broader objectives of sports governance. Technical procedural constraints should not impede the fundamental purpose of the Sports Disputes Tribunal to provide a specialized, accessible, and effective mechanism for resolving conflicts within the sports ecosystem. The legislative framework provides ample support for a broad, inclusive interpretation of the Tribunal's jurisdictional competence.

44. In light of the foregoing, the Sports Disputes Tribunal has jurisdiction to hear this matter based on a comprehensive interpretation of Section 58, read in conjunction with Section 46 and the constitutional right to access to justice.

Whether the Applicant has offended the doctrine of exhaustion by filing the present suit 45. The doctrine of exhaustion of internal dispute resolution mechanisms is a fundamental principle in administrative and sports law that requires parties to utilize established internal channels before seeking external judicial intervention.

46. In the present case, the Applicant has demonstrated significant efforts to engage with the Football Kenya Federation’s (FKF) internal dispute resolution mechanisms. The Applicant filed FKF Appeal Petition No. 16 of 2024 on 20th November 2024, complying with procedural requirements including payment of the requisite appeal fee of Ksh. 100,000. Despite scheduling an appeal hearing for 22nd November 2024, this hearing never materialized, highlighting the first instance of potential systemic obstruction.

47. The Respondents argue that the Applicant should have pursued alternative internal dispute resolution avenues, specifically the Leagues and Competitions Committee and the Appeals Committee as prescribed by the FKF Constitution. However, the Applicant contends that these internal mechanisms were ineffective and potentially compromised, citing the expiration of the leagues and competitions committee’s term on 20th October 2024.

48. Moreover, the Applicant argues that the individuals tasked with adjudicating internal disputes were the same individuals involved in the governance issues forming the basis of the present suit, invoking the legal principle nemo judex in causa sua (no one should be a judge in their own cause).

49. In this context, the Applicant’s assertion that the internal mechanisms lack clear operational parameters and demonstrated effectiveness becomes particularly significant. The Respondents have not provided concrete evidence demonstrating the existence, practicality, or efficacy of the internal dispute resolution process they argue should have been exhausted.

50. As previously stated in Alfred Koilege vs Boaz Kaino and 4 others, Petition No. E054 OF 2023, that;“Mere claims that there is an internal dispute resolution mechanism is not always a bar to a superior remedy especially where the alternate remedy that is touted by a person claiming non exhaustion of the remedy has no evidence to support the same. There are certain reliefs that a Petitioner may wish to obtain such as Injunctive Relief as demonstrated under paragraph 5(2) of this Decision where the Petitioner sought such orders that haven’t been demonstrated to have been a remedy under the Football Kenya Federation constitution or the Rules Governing Kenyan football.”

51. The principle of access to justice, enshrined in Article 48 of the Constitution requires a balanced approach that does not render dispute resolution mechanisms purely theoretical or ineffectual. The Tribunal is mindful of Lord Hewart’s famous maxim in R vs. Sussex Justices, ex parte McCarthy [1924] 1 KB 256, [1923] ALL ER Rep 233 that “Justice should not only be done but also be seen to be done.” This principle demands a substantive examination of the internal mechanisms’ capacity to provide meaningful resolution. The Applicant’s repeated attempts to engage with FKF’s internal processes is a clear demonstration of genuine efforts to utilize internal channels before approaching this Tribunal.

52. In the case of Daglas Mokaya (Supra) , this Tribunal Cited Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR, where it was held;-“...while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it.” (Underlining ours)

53. The Tribunal recognized several compelling and exceptional circumstances that warranted bypassing the internal dispute resolution mechanisms in this case. Most critically, the matter involved election disputes within the Football Kenya Federation (FKF), which by their nature require expeditious resolution as established under Regulation 20 of the Sports Registrar Regulations. The time-sensitive nature of electoral disputes means that prolonged uncertainty through extended internal mechanisms could significantly undermine the functional governance of sports organizations and effectively disenfranchise legitimate electoral outcomes. The Tribunal noted that delaying the hearing of election-related disputes would potentially paralyze organizational operations and prevent the timely constitution of necessary leadership structures. Furthermore, the constitutional right to just and expeditious dispute resolution, as enshrined in Article 48 of the Constitution, demands that technical procedural barriers not be used to frustrate substantive justice.

54. Additionally, the Applicant has sufficiently demonstrated genuine attempts to utilize the internal dispute resolution mechanisms, but these efforts were consistently thwarted. First, the Applicant had filed FKF Appeal Petition No. 16 of 2024 on 20th November, 2024, and dutifully paid the substantial appeal fee of Ksh. 100,000, showing their commitment to following proper procedures. Despite having an appeal hearing scheduled for 22nd November, 2024, this hearing never materialized, marking the first instance of systemic obstruction. Second, the Applicant then made additional attempts by forwarding complaints to the CEO of FKF on 17th December, 2024, and filing another appeal on December 18, 2024, both of which remained unactioned. Finally, and most importantly, the Applicant raised valid concerns about the impartiality of the internal mechanisms, noting that the individuals tasked with adjudicating the disputes were the same ones involved in the governance issues being challenged, potentially violating the legal principle of nemo judex in causa sua.

55. The Tribunal has consistently upheld the importance of exhausting internal dispute resolution mechanisms, as demonstrated in previous ruling in SDTSC Petition No. E016 of 2023, Samson Cherop vs. Nick Mwendwa and 3 Others where the Tribunal stated that:“This Tribunal has previously upheld the exhaustion doctrine in Shikoki Akaka & Others v Kenya Handball Federation [2018] eKLR and held that where there are internal dispute resolution mechanisms existing outside the tribunal, the same should be exhausted before the jurisdiction of the tribunal can be invoked.”

56. However, the Tribunal also emphasizes that these mechanisms must not become procedural mazes that obstruct rather than facilitate access to justice. The Tribunal noted that where internal remedies would be ineffective or their pursuit would be futile, direct access to the Tribunal should be permitted. Importantly, the Respondents failed to provide concrete evidence demonstrating the existence, practicality, or efficacy of the internal dispute resolution process they argued should have been exhausted.

57. To further reinforce the above provisions, in the case of Maqbull Abdi Karim -vs Gor Mahia Football Club (supra) the Sports Disputes Tribunal held that:‘Where a remedy provided to an athlete is ineffective or ineffectual or involves a resort to a municipal court, the Tribunal will accept jurisdiction in order not to leave an athlete or sportsman without a remedy or otherwise offend the principles which most international sporting organizations have put in place...’

58. The above position was taken by the Supreme court in Petition E007 of 2023, Abidha Nicholus vs Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) [2023] KESC 113 (KLR)Where it was stated;“Section 9(2) of the Fair Administrative Action Act, we must add, provides that where there exist internal mechanisms for the resolution of a dispute, the court will not review the administrative action until the internal dispute mechanism has been exhausted. As we had earlier stated, in our view, that fact notwithstanding, there is nothing that precludes the adoption of a nuanced approach that safeguards a litigant’s right to access justice while also recognizing the efficiency and specificity that established alternative dispute resolution mechanisms can offer. That is also why Section 9(4) of the Fair Administrative Action Act creates the exception that exhaustion of administrative remedies may be exempted by a court in the interest of justice upon application by an aggrieved party.’’

59. Furthermore, the High Court in the case of Republic v Kenya Revenue Authority Ex Parte Style Industries Limited 2019] eKLR held and properly so, that: -“Where an internal remedy would not be effective and/or where its pursuit would be futile, a court may permit a litigant to approach the court directly.”

60. The above case explicitly states that where an internal remedy would not be effective or its pursuit would be futile, a court may permit a litigant to approach it directly. The Applicant has presented compelling arguments suggesting that the internal FKF dispute resolution mechanisms in this case are more procedural than substantive. The lack of response to multiple communications, the alleged involvement of the same individuals in both the dispute and its potential resolution, and the failure to conduct scheduled hearings all support the Applicant’s position.

61. Furthermore, the Tribunal is guided by the constitutional imperative of access to justice and the need to provide meaningful dispute resolution mechanisms. The principle of exhaustion of internal remedies should not be applied mechanically in a manner that would effectively deny justice or render sports dispute resolution forums ineffective. The Respondents have not satisfactorily demonstrated that the internal mechanisms they propose would provide a fair, impartial, and timely resolution to the Applicant’s grievances. The burden remains on the Respondents to prove the existence and effectiveness of the internal dispute resolution process they argue should have been exhausted.

62. Additionally, Regulation 20 of the Sports Registrar Regulations specifically addresses the time-sensitive nature of election disputes in sports organizations, mandating expeditious resolution of such matters to preserve the integrity of democratic processes. The regulation establishes clear timelines for challenging and resolving electoral disputes, recognizing that prolonged uncertainty can significantly undermine the functional governance of sports organizations. Delaying the hearing of election-related disputes through extended internal dispute resolution mechanisms would effectively neutralize the protective intent of these regulations.

63. In conclusion, this Tribunal finds that the Applicant has sufficiently demonstrated attempts to engage with internal dispute resolution mechanisms and has provided substantive reasons why these mechanisms would not provide an effective remedy. The doctrine of exhaustion of internal remedies is not an absolute bar but a principle to be applied flexibly, with due consideration to the specific circumstances of each case. The Applicant’s approach is consistent with principles of justice, fairness, and the constitutional right of access to judicial and administrative justice. Therefore, the Tribunal determines that the Applicant has not offended the doctrine of exhaustion by filing the present suit.

64. Having arrived at the conclusion that it has, the Tribunal ordersi.The Preliminary Objection is hereby dismissed.ii.The matter to be listed for the hearing of the other pending applications.iii.No orders as to cost

DATED AND DELIVERED AT NAIROBI THIS 5TH DAY OF FEBRUARY, 2025GABRIEL OUKO - (PANEL CHAIR)MARY KIMANI - (MEMBER)BENARD WAFULA MURUNGA- (MEMBER)