[2022] KESDT 689 (KLR)

Gor Mahia Football Club v Football Kenya Federation & 3 others (Appeal E014 of 2022) [2022] KESDT 689 (KLR) (Civ) (6 September 2022) (Decision)

Neutral citation: [2022] KESDT 689 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Civil

Appeal E014 of 2022

J Njeri Onyango, Chair, E. G. Kiplagat & Peter Ochieng, Members

September 6, 2022

Between

Gor Mahia Football Club

Petitioner

and

Football Kenya Federation

1st Respondent

Football Kenya Federation Caretaker Committee

2nd Respondent

Football Kenya Federation Transition Committee

3rd Respondent

Vihiga Bullets Fc

4th Respondent

Decision

HearingJuly 26, 2022

PanelNjeri Onyango - Panel chairpersonE Gichuru Kiplagat - MemberPeter Ochieng - Member AppearancesMr Weru instructed by Obura Mbeche & Co Advocates for the petitionerN/A for the 2nd and 3rd respondentsMr Ndung'u instructed by Muchemi & Co Advocates for the 3rd respondentsN/A by the 4th respondent.

The Parties 1. The petitioner is Gor Mahia Football Club (‘the club’) which is a football club participating in the Kenyan premier league and is based in Nairobi, Kenya.

2. The 1st respondent is mandated to run the sport of football in Kenya and is affiliated to FIFAandCAF while the 2nd and 3rd respondents are offices established under the 1st respondent’s constitution and pursuant to gazette notice No 162 of August 15, 2022 by the cabinet secretary for sports, culture and heritage.

3. The 4th respondent is a football club registered as such under the Sports Act and a member of the 1st respondent.

Petitioner’s Case 4. The petitioner filed a petition dated March 11, 2022, an amended petition dated May 30, 2022 and a further amended petition dated June 6, 2022. The petitioner noted that on February 13, 2022 they were scheduled to play match No 180 of 2021-22 FKF premier league at the Moi International Sports Centre, Kasarani against Vihiga BulletsFC in which it was the home team.

5. They noted that pursuant to regulations 3. 6.1 of the rules and regulations governing football a pre-match meeting was conducted on February 13, 2022 at 10:10am which meeting was chaired by the match commissioner Haji O. Adede and also in attendance were the match officials, club representatives from the home team and the visiting team and a representative of the officer commanding the Kasarani police station Peter Okello and at which meeting all arrangements were agreed upon including the deployment of 20 police officers at the venue of the match 180 for security purposes.

6. The match commissioner being satisfied with the arrangements including security, the match kicked off as scheduled at 1500 hrs and the petitioner team was 1-0 up at the end of the first half having scored in the added minutes of the first half.

7. During the half time break there was a security breach which began when a fan attempted to enter the playing field without authority and the said fan was apprehended by the petitioner’s head of security Lawi Odhiambo and in the course of the said apprehension a commotion ensued pitting some fans against the security personnel at the stadium leading to injury of the said head of security but calm was restored by security personnel and complemented by police reinforcement from Kasarani police station.

8. They further aver that none of the match officials were involved in any way in the security incident

9. They noted that after the half time break and return to normalcy the match officials summoned both teams back to the playing field to finish the match as scheduled and the petitioner’s team took to the playing field as instructed however the vising team Vihiga BulletsFCdeclined to continue the match citing security reasons.

10. They further noted that the match officials and the petitioner’s team waited on the playing field for approximately thirty minutes but the visiting team declined to return to the field despite the instruction from the match officials and the match was called off by the center referee.

11. The match commissioner prepared and submitted a match report to the respondents as required by regulation 7. 1.3 as read with 7. 3 of the rules and regulations governing football. They also note that the referee similarly prepared and submitted his match report to the respondents as required by regulation 7. 2.5 as read with 7. 3 of the rules and regulations governing football.

12. They claim that on March 10, 2022 they received a letter addressed to its chairman by the 2nd respondent stating as follows:a.That the 2nd respondent had reviewed the match officials’ reports of match 180 which was abandoned at half time.b.That the petitioner forfeits the match in accordance with rule 3. 5.6 of the rules and regulations governing football, 2019. c.The match is forfeited on 2-0 basis as per rule 3. 3.3. d.The petitioner is given two-match empty stadium ban as per rule 9. 3.1 and should play the next two home league matches behind closed doors.e.The matter has also been referred to the disciplinary committee for further action.

13. They contend that the letter of March 10, 2022 is voidab initio and violates rules and regulations governing football and in particular that the 2nd respondent failed to comply with clause 3. 1.7 of the rules which states that a team that fails to honor a match shall submit a written explanation within 48 hours from the date of the match. The petitioner was not given this opportunity and this violated their right to a fair hearing under the constitution of Kenya.

14. They also aver that chapter 3 of the rules and regulations governing football vests with the FKFleagues and competitions committee with the power to sanction teams for failure to honor matches and therefore the sanctions by the 2nd respondent in as far as they were the product of theFKF Caretaker Committee are an illegality.

15. They also note that the act of sanctioning the petitioner by the 2nd respondent without a decision on whether to accept or refuse an explanation is a direct violation of clause 3. 1.10 of the rules and regulations and the decision to impose additional sanction is not procedural.

16. They further note that the application of regulation 3. 5.6 of the rules and regulations governing football by the 2nd respondent in making a finding that match 180 was abandoned because of the misconduct by members and or supporters of the petitioner is without any basis as confirmed by the various match reports of match officials.

17. They further note that they provided adequate security as per regulation 3. 5 of the rules for the safety of the teams and match officials and prevented encroachment onto the field as noted that the referee was ready to resume the match after the half time break.

18. They note that the match was not abandoned on account of misconduct but due to the fact that the visiting team refused to honor the match without any basis whatsoever.

19. They also note that the decision to sanction them was not in compliance with rules 9. 2.1,9. 2.2 and 9. 2.3 of the regulations in so far as the same were made by theFKF disciplinary committee and no hearing with an opportunity to call witnesses or evidence was conducted and that it is the visiting team that violated regulation 9. 1.2. 14.

20. They further note that the sanction is disproportionate and unreasonable and the said decision is illegal.

21. The petitioners prayed for judgment be entered against the respondents in the following terms:a.A declaration do issue that the decision to sanction the petitioner as contained in the 2nd respondents letter dated March 10, 2022 is a nullity as it is based on procedural impropriety and violates the rules of natural justice.b.A declaration do issue that the decision to sanction the petitioner as contained in the 2nd respondents letter dated March 10, 2022 is irrational and unreasonable.c.A declaration do issue that the decision to issue a two match empty ban is illegal and unprocedural.d.A permanent injunction do issue against the 2nd respondent from sustaining or proceeding with any action against the petitioner over the same subject matter.e.A declaration do issue that the 4th respondents are responsible for abandoning of match 180 material to this suit and they ought to forfeit the match as per the rules and regulations governing football 2019. f.A declaration do issue that match No 180 of the 2021-22 FKF premier league ought to be awarded to the petitioner on a 2-0 basis as per the rules and regulations governing football.g.An order do issue compelling the 1st – 3rd respondents to award match 180 to the petitioner and to consider the said match 180 win in their total tally of points for the Kenya Premier League 2021/22 season.h.Costs of the suit.i.Any other order that the honorable tribunal may deem fit and just to grant.

The Response 22. The 3rd respondent filed a preliminary objection dated March 15, 2022 challenging the jurisdiction of the tribunal to hear the matter.

23. The 3rd respondent also put in a replying affidavit sworn by one Lindah Oguttu, head of secretariat of FKF Transition Committee dated July 12, 2022 stating that on May 18, 2022 pursuant to article 30 of theFKFConstitution the 2nd respondent appointed the independent disciplinary standing committee made up of: Bob Oyugi, Josephat Murila, Bernard Murunga, Asha Pili Ramadhan and Gilbert Moore Titus Otieno.

24. Miss Oguttu noted that the term of the appointed members of the independent disciplinary standing committee runs concurrently with the term of the FKF committee and as such the term of the FKFhas since been extended for a further two (2) months from June 16, 2022.

25. Miss Oguttu averred that there exist currently a functional independent disciplinary standing committee of the FKF Transition Committee that is capable of effectively dealing with the issues raised by the petitioner and making a viable determination.

26. She further noted that the tribunal has the powers to refer such disputes as currently raised by the petitioner herein to be dealt with internally by the mechanisms set up by the committee to adjudicate such disputes.

27. She prayed that the tribunal do refer this dispute to the independent disciplinary committee of the FKF Transition Committee for adjudication and expedite disposal of the same.

Hearing 28. The matter came up for mention and hearing on diverse dates. On May 11, 2022 the tribunal issued conservatory orders suspending the implementation of the sanctions in the letter of March 10, 2022 against the petitioner. The tribunal also issued the same orders suspending the implementation of the two match empty stadium ban imposed on the petitioner asper the letter of March 10, 2022 pending the hearing and determination of the matter.

29. However, the tribunal also dispensed with the preliminary objection pursuant to the directions of the tribunal issued on April 12, 2022. After hearing all the parties the tribunal delivered its decision on May 10, 2022 and dismissed the objection. The matter was set down for hearing on various subsequent dates.

30. On July 12, 2022 the tribunal granted leave to the petitioner to amend its petition and enjoin Vihiga BulletsFC. However, despite service neither did Vihiga BulletsFC file any response nor did they participate in the instant proceedings.

31. On July 19, 2022 the matter came up for mention. The tribunal noted that a very small limb of this matter remained unresolved. The petitioner agreed and stated that the only stumbling block was deciding which of the two teams should take the points which is the additional issue introduced in the amended petition.

32. The petitioner further stated that the tribunal should handle the matter as the independent standing committee was not the appropriate body to deal with the issue because it was not disciplinary in nature. The tribunal directed that this matter be limited to questions concerning the fate of the points and the petitioner was further directed to serve a hearing notice on Vihiga Bullets FC and the matter was fixed for hearing on July 26, 2022.

33. During the hearing of July 26, 2022 the parties made submissions on the question for determination; which of the two teams between Gor MahiaFC and Vihiga Bullets FCshould be awarded the three (3) points.

34. Mr Weru for the petitioner submitted that on February 13, 2022 Gor Mahia FC was 1-0 up and during half time there was a security breach which was later controlled. He noted that Gor Mahia players and match officials returned to the field after half time but Vihiga Bullets refused to return to the field.

35. Mr Weru noted further that the match was called off after 30 minutes of waiting for Vihiga Bullets players to come back from half time. Mr Weru asked the tribunal to award a score of 2-0 in favour of the petitioner and also three (3) points.

36. Mr Ndung’u countered and submitted on behalf of the first three respondents that Gor Mahia fans had caused a lot of panic and actions by Vihiga Bullets were justified. He further noted that there was reinforcement of police officers from Kasarani police station but that the petitioner’s fans overwhelmed the officers. In conclusion Mr Ndung’u urged the tribunal to uphold the sanctions meted to the petitioner by the 3rd respondent and dismiss the petitioner’s prayers.

37. The tribunal directed the parties to put in written skeleton submissions and the matter was fixed for mention for directions for August 2, 2022.

38. The petitioner filed its submissions dated August 1, 2022 on the same day while the 3rd respondent filed his submissions dated July 29, 2022 on July 29, 2022. The matter was fixed for delivery of the tribunal’s decision for August 30, 2022.

Discussion 39. Having taken into account the parties’ pleadings written and oral submissions, the tribunal states as follows:

40. The jurisdiction of this tribunal stems from section 58 of the Sports Act which provides as follows:“The tribunal shall determine—(a)appeals against decisions made by national sports organizations or umbrella national sports organizations, whose rules specifically allow for appeals to be made to the tribunal in relation to that issue including —(i)appeals against disciplinary decisions;(ii)appeals against not being selected for a Kenyan team or squad;(b)other sports-related disputes that all parties to the dispute agree to refer to the tribunal and that the tribunal agrees to hear; and(c)appeals from decisions of the registrar under this Act.”

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

42. On the issue of jurisdiction, we find that this matter is properly before us and at any rate the tribunal dealt with the issue at the onset of this trial with our decision delivered on May 10, 2022.

43. We will proceed to determine the issue of deduction of points. Article 3 of the FKF Constitution provides that:“FKF is committed to respecting all internationally recognised human rights and shall strive to promote the protection of these rights.”

44. Article 50 of the constitution of Kenya provides that:“Every person has the right to have any dispute that can be resolved by the application of the law decided in a fair and public hearing before a court or if appropriate another independent and impartial tribunal or body.”

45. The right to a fair trial is also non derogable as outlined in article 25(c) of the constitution of Kenya as confirmed by the case of John Florence Maritime Limited & Anor v Cabinet, Secretary Transport and Infrastructure and 3 others (Supreme Court PT No17 of 2015) eKLR.

46. Consequently, fair hearing sits at the centre of the FKF constitution as an integral component of human rights. The petitioner ought to have been given a chance by the third respondent to make its case or explain their side of the story with respect to match 180 before sanctioning them. We therefore find that the 3rd respondent acted outside the FKF Constitution and the laws of the Republic of Kenya.

47. We have looked at the match commissioners report as well as the referees match report. As much as the match commissioner indicates that a security lapse arose after the first half it is clear from his report that all indications were that the security incident had been contained. They could not have waited for about thirty minutes for the 4th respondent to come to the pitch and resume the game. It is clear to us that in fact the 4th respondent indeed abandoned the match without sufficient valid reasons.

48. Similarly, the above assertion is strongly corroborated by the match referee in his match report when he says that:…reinforcement was done by the Kasarani OCP and everything resumed to normalcy but the visiting team Vihiga Bullets declined to return to the playing field citing security concerns. No match officials nor players were disturbed by fans during the above incident.

49. Clearly, there was no reason for the 4th respondent not to resume play even after the security breaches had been contained. Equally, it is sad that we cannot also benefit from their side of the story as they elected not to participate in this proceedings. Therefore, without any incontrovertible evidence we find that the petitioner has proved his case.

50. Therefore, it is the 4th respondent and not the petitioner that was to be lawfully sanctioned and have his points deducted for forfeiting match 180 as per rule 3. 3.2 and 3. 3.3 of rules and regulations governing Kenyan football.

Conclusion 51. It is therefore in consideration of this, as well as the parties’ submissions that the tribunal makes the following orders:a)The amended petition dated July 6, 2022 is allowed;b)A declaration be is hereby issued that the 4th respondent is responsible for abandoning of match 180 material to this suit and shall forfeit the match as per the rules and regulations governing football 2019. c)A declaration be and is hereby issued that matchNo180 of the 2021-22 FKF Premier League shall be awarded to the petitioner on a 2-0 basis as per the rules and regulations governing football.d)An order be and is hereby issued compelling the 1st – 3rd respondents to award match 180 to the petitioner including awarding the said match 180 win in their total tally of points to the petitioner for the Kenya Premier League 2021/22 season.a)The matter shall be mentioned on September 20, 2022 to confirm compliance and for further directions.e)Each party shall bear its own costs.

Dated at Nairobi this 6th day of _September, 2022. ...............................Njeri Onyango, Panel Chairperson..............................Gichuru Kiplagat, Member...........................Peter Ochieng, Member