[2019] KESDT 45 (KLR)

REPUBLIC OF KENYA

THE JUDICIARY

OFFICE OF THE SPORTS DISPUTES TRIBUNAL

CASE NO.21 OF 2019

JARED NYAUMA ONDIEKI ……………...……...…….……………. APPLICANT

VERSUS

FOOTBALL KENYA FEDERATION…….....….………….............. RESPONDENT

&

CASE NO. 24 OF 2019

SAMSON NYAMWEYA KEENGU

LORDVICK OMONDI ADUDA

ALEX OLE MAGELO

MOSES AKARANGA

STEVE MBURU

ANGELINE MWIKALI ELIJAH …………………...………………. APPLICANTS

VERSUS

FOOTBALL KENYA FEDERATION……….……...…….............. RESPONDENT

DECISION

Hearing:19th November, 2019

Panel:

1. Mr. John M. Ohaga - Chair

2. Ms.J Njeri Onyango - Member

3. Ms. Mary N Kimani - Member

Appearances:

SDT Case No. 21 of 2019

Applicant:

Mr. Charles Ouma, Advocate instructed by Charles B G Ouma & Company;

Respondent

Messrs. Victor Omwebu Advocate instructed by Litoro & Omweru and Elias Majani, instructed by Wambilianga Majani & Company, Associates,

SDT Case No. 24 of 2019

Applicant:

Messrs. Stanley Manduku and Odongo, Advocates instructed by Kerandi Manduku & Company;

Respondent

Messrs. Victor Omwebu Advocate instructed by Litoro & Omweru Advocates

and Elias Majani, instructed by Wambilianga Majani & Co. Associates,

Abbreviations and definitions

FKF – Football Kenya Federation;

FIFA - International Federation of Association Football;

CAF – Confederation of African Football; and

CECAFA - Council for East and Central Africa Football Associations.

Parties

1. The Applicant in SDT Case No. 21 of 2019 is a male adult of sound mind and is the Chairman of Nyamira FKF Sub-Branch. He brings the action in a representative capacity and is authorised by several other sub-branch chairmen to act on their behalf; the Applicants in SDT 24 of 2019 are Aspirants for the Position of President in the 2019 FKF Elections. (hereinafter jointly, ‘the Applicants’).

2. The Respondent in both causes is the governing body of football in Kenya, founded in 2011 and is an affiliate of FIFA, CAF and CECAFA. (hereinafter ‘the Respondent’or‘FKF’).

Pleadings and preliminaries

3. The Applicant in SDT Case No. 21 of 2019 filed this appeal under Certificate of Urgency on 1st October 2019. The same was initiated by a Notice of Appeal supported by an affidavit sworn by Jared Nyauma Ondieki, various documents in support of the appeal, as well as an application by way of Notice of Motion seeking various injunctive reliefs.

4. The matter was initially placed before the Chairman of the Tribunal on 1st October 2019 ex-parte, when the Tribunal directed that the application and all accompanying documents including the Directions should be served upon the Respondents by 1. 00 p.m. Wednesday 2nd October 2019, together with a mention notice for 4th October 2019 where the matter would be heard by the Panel consisting of:

1. Mr. John M. Ohaga - Chair

2. Ms. J Njeri Onyango - Member

3. Ms. Mary N Kimani - Member

5. The Respondent duly filed its Replying Affidavit sworn by Barry Otieno on 4th October 2019 and the Tribunal proceeded to hear arguments from both Counsels on the merits of the Application. The Tribunal, being of the preliminary view that granting the orders sought by the Applicant would constitute an undue interference in the running and governance of the Respondent which would cause inconvenience to the members, declined to allow the Application.

6. On 15th October 2019, the Applicant filed a Notice of Motion under a Certificate of Urgency and Supporting Affidavit sworn by Jared Nyauma Ondieki on the 15th October 2019 to which the Respondent replied through an affidavit sworn by Barry Otieno on the 22nd October 2019. The Applicant sought inter alia to amend its Notice of Appeal.

7. After granting the parties brief audience on 22nd October 2019, the Panel granted leave to the Applicant to amend his Notice of Appeal and serve it on the Respondent within 7 days. The Tribunal also issued a conservatory order to the effect that the Elections Board constituted by the National Executive Committee of the Respondent shall be at liberty to receive and accept nominations except that such nominations would not be deemed to be valid until the hearing and determination of the matter which was listed for hearing on 5th November 2019. The Tribunal also directed that Counsel shall frame and exchange skeleton arguments supported by relevant authorities on or before 1st November 2019.

8. The Applicant proceeded to file its Amended Notice of Appeal on 29th October 2019.

9. On the 29th October 2019, the Applicants in SDT Case No. 24 of 2019 filed their appeal under Certificate of Urgency. The same was initiated by a Notice of Appeal supported by an affidavit sworn by Samson Nyamweya Keengu and various documents in support of the appeal. The Applicants sought to have this appeal consolidated with SDT Case No. 21 of 2019 which was fixed for submissions on 5th November 2019 on grounds that the two appeals raised common questions of law and fact.

10. The matter was initially placed before the Tribunal on 30th October 2019 ex-parte, when the Tribunal directed that:

a. the Notice of Appeal and the Supporting Affidavit sworn by Samson Nyamweya Keengu and all accompanying documents shall be served upon the Respondent by or before close of business Thursday 31st October 2019;

b. the Applicants shall serve upon the Respondent and the Applicant in SDT Appeal No. 21 of 2019 its skeleton arguments in support of the Notice of Appeal by Friday 1st October 2019;

c. the Respondent shall have until close of business on Monday 4th November 2019 to frame and serve upon the Applicants its response to the Notice of Appeal; including skeleton arguments; and

d. the matter would be listed for hearing on 5th November 2019.

11. On 1st November 2019, the Applicant in SDT Case No. 21 through his Counsel wrote a letter to the Tribunal seeking for an extension of time to filing his skeleton arguments on grounds that he had been served with SDT Appeal No. 24 of 2019.

12. On 4th November 2019, the Applicants in SDT Case No. 24 of 2019 filed their skeleton arguments and List of authorities

13. On even date, the Respondent filed a Notice of Preliminary Objection seeking a dismissal of the Appeal with costs on grounds that:

a. the Tribunal lacked jurisdiction to entertain the Appeal; and

b. the Appellant and his Co-Appellants lack the requisite locus standi to institute the present Appeal or any other proceedings against the Respondent.

14. On 5th November 2019, the Respondent filed its Skeleton Arguments in SDT Case No. 21 of 2019 as well as its submissions in respect of its Preliminary Objection dated 4th November 2019. The Applicants in SDT Case No. 24 of 2019 similarly filed an affidavit in opposition to the preliminary objection which was sworn by Samson Nyamweya Keengu on 5th November 2019.

15. The matter was next mentioned on 5th November 2019. Upon hearing Counsel for the Applicants in No. 24 of 2019 and the Counsel for the Respondent in both Appeals, the Tribunal directed that Cause No. 21 of 2019 be heard together with Cause No. 24 of 2019. The Tribunal issued further orders as follows:

a. The Applicants in No. 24 of 2019 have liberty to file a further or supplementary affidavit;

b. The Applicants in No. 24 of 2019 have liberty to file supplementary submissions to be served on or before 7th November 2019;

c. Preliminary objections in both causes will be argued in response to the case and determined together with the merits of the cause;

d. The Respondent will have until close of business on 12th November 2019 to serve its skeleton arguments on the merits of the causes;

e. The matter shall be listed for hearing on 19th November 2019 from 2. 30 p.m.; and

f. All persons on behalf of whom the Applicant in No. 21 of 2019 has filed its cause shall present themselves at the hearing for cross-examination.

Hearing

16. The two appeals were heard on 19th November 2019 from 3. 00 p.m. to 6. 30 p.m when Counsel for all parties made extensive oral arguments to augment the written submissions already exchanged.

The Applicants’ Case

17. The Applicant’s Amended Notice of Appeal in SDT 21 of 2019 seeks the following orders:

A decision quashing:

a. The adoption of the FKF Electoral Code 2019;

b. The nomination or election of the members of the Election Board and more particularly Elina Shiveka and Edwin Wamukoya;

c. A rescheduling of the Election timetable;

d. Conservatory orders to preserve the status quo or status quo ante (spent)

18. The Applicants Notice of Appeal in SDT 24 of 2019 seek the following orders:

a. A declaration that the FKF Electoral Code, 2019 was unlawfully adopted.

b. An order that the 2019 FKF Elections Board is unlawfully constituted.

c. An order that the criteria for the nomination of President and Deputy President in the FKF Electoral Code, 2019 is ultra-vires the 2012 and 2017 FKF statutes and FIFA statutes and unreasonably restricts the nominating constituents to the disadvantage of the Applicants and to the advantage of the incumbents.

d. An order permitting any member of FKF to nominate candidates in accordance with the Constitution of FKF.

e. A declaration that the order of elections in the 2019 FKF Elections discriminates against clubs playing in the FKF sub-branch leagues and therefore inconsistent with FIFA statutes and FKF statutes.

19. The Applicants submitted that they sought the above orders on grounds that the Electoral Code was adopted without required stakeholder engagement; the choice of the members of the Electoral Board lacked transparency and was done without required stakeholder engagement; Some members of the Board are ineligible for membership by reason of conflict of interest and mandatory prohibitions under the FIFA Electoral Code; and the Electoral code has provisions violating the FIFA Standard Electoral Code.

The Respondent’s Case

20. FKF on the other hand opposes the grant of the orders in both causes. The preliminary basis for the objections is:

a. the Tribunal lacked jurisdiction to entertain the appeal; and

b. the Appellant and his Co-Appellants lack the requisite locus standi to institute the present Appeal or any other proceedings against the Respondent.

c. There was sufficient stakeholder participation undertaken in thr adoption of the Electoral Code;

21. It is the Respondent’s assertion that it has proper internal structures that offer a dispute resolution avenue for the Appellants and the Tribunal’s jurisdiction, if any, is appellate. Accordingly, the Appellants in both causes should have exhausted the FKF’s internal dispute resolution mechanisms first.

22. The Respondent further submits that it facilitated stakeholder engagement in formulating the Electoral Code and constituting the Electoral Board through the General Assembly.

Applicable Laws

23. Because football is a global phenomenon, it is essential that the rules that govern the sport are uniform and coherent globally. The Panel in CAS 2005 /A/ 983 & 984 Club Atlético Peñarol vs. Carlos Heber Bueno Suarez & Cristian Gabriel Rodriguez Barrotti & Paris-Saint- Germain set out the following statement of principle:

“The Panel is of the opinion that all sporting institutions, and in particular all international federations, must abide by general principles of law. Due to the transnational nature of sporting competitions, the effects of the conduct and deeds of international federations are felt in a sporting community throughout various countries. Therefore, the substantive and procedural rules to be respected by international federations cannot be reduced only to its own statutes and regulations and to the laws of the country where the federation is incorporated…Sports law has developed and consolidated along the years, particularly through the arbitral settlement of disputes, a set of unwritten legal principles- a sort of lex mercatoria for sports or, so to speak, a lex ludica-to which national and international sports federations must conform regardless of the presence of such principles within their own statutes and regulations or within any applicable national law, provided that they do not conflict with any national ‘public policy’ (“ordre public”) provision applicable to a given case.”

24. As the Tribunal has previously stated, it becomes clear from the foregoing that the legitimacy or mandate of the FKF to ran the game of football in Kenya does not depend only on a reading of municipal law of Kenya such as the Sports Act but must extend to the FIFA Regulations which are applicable to the more than 200 of its members, with no obligation for any of them to be subject to the legal reality of another State. This introduces a dual test under municipal and international sports law both of which must be met.

25. In this case, it would therefore appear to the Panel, that the primary laws which hare applicable to this dispute necessarily includethe Constitution of Kenya 2010, the Sports Act No. 25 of 2013, the Sports Registrar Regulations, 2016andthe FIFA Standard Electoral Code , the FKF Constitution, the Electoral Code of Football Kenya Federation(hereinafter “the Constitution”, “the Act”, “the Regulations” “the Statute”, and “the Code” respectively).

Analysis and Decision

26. Having looked at the Parties pleadings, this Panel is of the view that the causes raise the following issues for determination:

i) Whether the Tribunal has Jurisdiction;

ii) Whether or not the Applicants have locus standi;

iii) Whether there was sufficient public participation in formulation of the Election Code; and

iv) Whether or not the Elections Board was properly constituted.

i. Whether the Tribunal has Jurisdiction

27. The Respondent raises a Preliminary Objection in both appeals challenging the Jurisdiction of the Tribunal.

28. It is a cliché now to state that a preliminary objection is a point of law which when taken would dispose of the suit. The Respondent's Preliminary Objection fits the definition of a preliminary objection in terms of the leading case of Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd [1969] E.A. 696. In the celebrated case Law J.A. stated a preliminary objection to be thus: -

“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. 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.”

29. The locus classicus on jurisdiction is the celebrated case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1where Justice Nyarangi of the Court of Appeal (as he then was) held as follows;

'I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.'

30. The Tribunal’s jurisdiction is statutory and is set out at Section 58 of the Act as follows. However, the pertinent provision is Section 58(b) which provides as follows:

The Tribunal shall determine—

Other sports-related disputes that all parties to the dispute agree to refer to the Tribunal and that the Tribunal agrees to hear;

32. Denis Kadito vs. Sofapaka Football Club was the first decision in which the Tribunal examined closely the issue of its jurisdiction. The Tribunal in that case declined jurisdiction for reasons which were peculiar to the circumstances of the case. The Tribunal’s decision was upheld by the High Court[1].

32. Subsequently the Tribunal’s jurisdiction has been challenged, mostly in employment type disputes, with varying outcomes. In each case, the Tribunal has been concerned to ensure that, where it declines jurisdiction, there exists a proper and efficacious avenue for the resolution of the particular dispute. No party should ever be left without an avenue for the resolution of a genuine grievance or with an avenue that it only illusory.

33. So this philosophy has led us to a close examination of the disputes brought before us by the Appellants in the present cause, the features of the FKF Constitution regarding Dispute Resolution and the features of the FKF Electoral Code.

34. As a preliminary point, the Sports Act establishes the Tribunal herein as the forum for resolution of disputes in sports in Kenya. A close reading of this provision reveals that beyond its appellate jurisdiction, the Act confers first instance jurisdiction to the Tribunal on ‘other sports related disputes that parties agree to refer to the Tribunal and the Tribunal agrees to hear’. As we observed in Denis Kadito, the Act therefore establishes a three-step process:

i. Is this a Sports related matter?

The facts and issues raised in the pleadings of both appeals qualify this matter as a Sports related matter. The dispute relates to a sports federation responsible for the governing of football in Kenya. On that basis alone, the dispute herein qualifies as a sports dispute.

ii. Have the Parties agreed to refer the dispute to the Tribunal?

The Tribunal is cognizant of the Respondent’s apprehension to submit to the Tribunal’s jurisdiction. However, the Respondent’s basis for the said hesitation is the assertion that the 2017 Constitution at Articles 69 and 70 prohibit this. To establish this, we proceed to analyze these provisions.

35. Article 69 of the FKF Constitution 2017 provides for Dispute Resolution as follows:

1. Disputes in the Association or disputes affecting Leagues, members of Leagues, Clubs, members of Clubs, Players, Officials and other Association Officials shall not be submitted to Ordinary Courts, unless the FIFA regulations, this Constitution or binding legal provisions specifically provide for or stipulate recourse to Ordinary Courts;

2. The entities mentioned in par. 1 above shall give priority to arbitrationas a means of dispute resolution;

3. The disputes as specified in art. 1 shall be taken to an independent Arbitration Tribunal recognised by FKF or CAF or to the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland.

4. Decisions made by the FKF standing committees and the judicial bodies are final and FKF members are prohibited from taking such matters to ordinary courts. Any member found in violation of the same shall be subjected to disciplinary measures as stipulated in the disciplinary code of FKF and FIFA

5. If any of the parties is dissatisfied by decisions and rulings made by any of the Standing Committees and judicial committees, such a party is at liberty to lodge an appeal with the Appeals Committee whose decision shall be final unless stipulated elsewhere in this constitution.

6. The first body for Electoral disputes shall be the Independent Electoral Board. Any member unsatisfied with decisions of the Electoral board may Appeal to the FKF Appeals Committee.

36. On the basis of the above provision, the Tribunal herein is not an ordinary court; it is an arbitration avenue. Indeed, Part VII of the Sports Act which deals with establishment of the Tribunal is headed: ARBITRATION OF SPORTS DISPUTES’. Accordingly, we are persuaded that the Tribunal qualifies as an independent Arbitration Tribunal as contemplated by the above provision in the FKF Constitution 2010.

37. The argument by the Respondent that the Electoral Board has the first instance jurisdiction to hear these appeals would expose the parties to an unfair judicial forum as the legality of the constitution of the board is in itself a question before the Tribunal.

38. Article 70(1) of the FKF Constitution provides thus:

Recourse may only be made to an Arbitration Tribunal in accordance with art. 68 once all internal channels of FKF have been exhausted;

39. The Tribunal recognizes that the FKF is itself a party in both appeals and fully abides by the Principle of natural justice that requires that a party cannot be judge in its own cause. Were the disputes to be referred to any internal organ within the FKF for resolution, it would amount to unfair resolution as there would be reasonable ground to presume bias on the part of FKF.

40. This principle is enshrined in the Constitution of Kenya 2010 under the Bill of Rights at Article 50 which entitles every person to fair hearing. Courts have further asserted this principle as was held by the High Court in Commission for the Implementation of the Constitution v Speaker of the National Assembly [2016] eKLR;

79. There is certainly little doubt if at all that the common law rule of natural justice nemo judex in causa sua (no man should be a judge in his own cause) is now subsumed in the Constitution.

80. Article 50(1) of the Constitution reads as follows:

Fair hearing

“50(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal”.(Emphasis ours)

81. Article 50 seeks to assist in upholding the rule of law by guaranteeing every person the due process in the resolution of justiciable disputes. It is an embodiment of the salient common law tenets of natural justice. It has basically three components namely; access to courts and other dispute resolving forums, independence and impartiality and, finally, fairness

41. Violating the rules of natural justice invalidates a decision notwithstanding that such decision would well have been reached in the first instance as was held in Onyango Oloo vs. Attorney General [1986-1989] EA 456:

“A decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right since if the principle of natural justice is violated, it matters not that the same decision would have been arrived at...”

42. This Tribunal finds that FKF cannot be a proper dispute resolution forum where it is a party to a dispute.

43. However, basing our jurisdiction only on the provisions of Article 69 and 70 of the 2017 Constitution would be insufficient as the enforceability of the 2017 Constitution is contested by parties. We therefore turn to the 2012 Constitution.

44. Article 66 of the 2012 Constitution provides for Arbitration. Article 66(4) specifically provides that;

“4. As long as within the territory of Kenya no national sports Arbitrational Tribunal has been installed and recognised by the General Meeting of FKF, any dispute of national dimension may only be referred to the arbitration tribunal established by the National Olympics Committee”

45. This provision was drafted before the enactment of the Sports Act, No. 25 of 2013. As we have observed, Part VII of the Sports Act provides for Sports Arbitration and under it is Section 55 which establishes the Sports Dispute Tribunal.

46. A close interrogation of Article 66 reveals that the intention of the drafters was to have matters of national dimension handled by the National Olympics Committee only until such a time as there would be established a national sports arbitration tribunal. The enactment of the Sports Act in 2013 and the establishment of the Sports Dispute Tribunal therefore accords with this provision.

47. The dispute in question revolves around the federation’s elections. We recognize that football is an important sport to the people of this nation. The process and consequential results of the elections and the determination of these appeals have an impact on the nation both locally and internationally as FKF is an affiliate of FIFA, CAF and CECAFA. It is therefore the Tribunal’s view that the dispute herein is one with a national dimension and one that elicits national interest. Within the meaning of Article 66 of the 2012 Constitution, the Tribunal has jurisdiction to hear and determine this matter.

iii. Has the Tribunal agreed to hear the disputes?

48. As to whether the Tribunal has agreed to hear the matter, the Tribunal finds as it did at paragraph 9. 16 in Elly Kalekwa & 3 others v Nick Mwendwa & 6 others; Emmanuel Obiero Ochieng & 2 others (Interested Parties) [2017] eKLR

“…and having sat through these lengthy hearings, the Tribunal has obviously agreed to hear the dispute…”

49. Premised on the foregoing the Tribunal finds that it is clothed with the requisite jurisdiction under Section 58(b) and Articles 66 and 69 and 70 of the 2012 and 2017 FKF Constitutions to hear and determine this dispute.

ii. Whether or not the Applicants have locus standi

50. Locus standi connotes ‘a right to bring action’.

51. The issue of locus standi has been discussed widely within the Kenyan jurisdiction. The Court in the matter of Michael Osundwa Sakwav Chief Justice and President of the Supreme Court of Kenya & another [2016] eKLR while referring to the matter of Ms. Priscilla Nyokabi Kanyua vs. Attorney General & Interim Independent Electoral Commission Nairobi HCCP No. 1 of 2010 asserted that;

“…In Kenya the Court has emphatically stated that what gives locus standi is a minimal personal interest and such interest gives a person standing even though it is quite clear that he would not be more affected than any other member of the population.”

52. Similarly, the Court in the matter of Khelef Khalifa El-Busaidy v Commissioner of Lands & 2 others [2002] eKLR while canvassing the issue of Locus Standi stated thus:

“…for an individual to have a locus standi, he must have an interest either vested or contingent in the subject matter before the court, which interest must be a legal one. Such interest must be above that of other members of the public in general.”

53. In the Notice of Appeal filed in Case No. 21 of 2019 herein, the Applicant has described himself as an adult male of sound mind residing and working for gain in the Republic of Kenya.

54. In the Supporting Affidavit accompanying the Notice of Appeal he describes himself as “the Sub-Branch Chairman” of Nyamira FKF Sub Branch with authority from the other Sub branch officials to swear the said Affidavit.

55. There is also annexed a certificate of confirmation of the Applicant’s election as Sub-Branch Chairman election from Football Kenya Federation Electoral Board dated 10th January 2016 for the Elections held on 4th December 2015.

56. We note that the Respondent has not contested the authenticity of the said certificate nor the position held by the Applicant herein as Chairman of FKF Nyamira Sub-Branch.

57. Having noted the foregoing, this Panel is of the considered view that the position he has expressed to hold in the federation and noting that he states that he has authority of the other members, grants him sufficient interest in the matter.

58. As can be deduced from the Notice of Appeal and accompanying documents, the Applicant and other persons not stated, are chairmen of a position that exists within the FKF governance structure. Whereas the Respondent draws the Tribunal’s attention to the non-existence of sub-branches in the 2017 Constitution, we note that the Applicants were elected under the 2012 Constitution.

59. The federation’s 2012 Constitution at Article 10(1) provides for the members of FKF. This Article does not provide for any membership position known as sub-branch. However, the Federation through its National Executive Committee, approved the 2015 Electoral Rules and Regulations which took cognizance of this position of sub- branch and proceeded to establish 84 sub-branches at clause 24 of the regulations.

60. The position of sub-branch chairman is therefore one that finds its validity in the governing document of the federation.

61. The Applicant’s interest in the matter is evident from the role they play in the FKF governance structure. The determination of this appeal and the actions of FKF certainly have a direct effect on the Applicants.

62. Similarly, the Applicants in Case No. 24 of 2019 have an interest in the matter as aspirants for the position of FKF President 2019.

63. The argument that they lack the right to appear because they are members of members falls short.

64. In reaching a decision on locus, the Tribunal considers that it should not give an unduly restrictive interpretation to the expression locus standi in order to inordinately deny parties an avenue to resolve their dispute.

65. The Court in the matter of Michael Osundwa Sakwa (supra) asserts this position by finding that;

“Our legal system is intended to give effective remedies and reliefs whenever the Constitution of Kenya is threatened with violation. If an authority which is expected to move to protect the Constitution drags its feet, any person acting in good faith may approach the court to seek judicial intervention to ensure that the sanctity of the Constitution of Kenya is protected and not violated. As part of reasonable, fair and just procedure to uphold the Constitutional guarantees, the right to access to justice entails a liberal approach to the question of locus standi.”

66. From the foregoing, this Panel finds that the Applicants in both appeals have locus standi and will now proceed to canvass the merits of the suit.

iii. Whether there was sufficient public participation in formulation of the Election Board;

67. Public participation is one of the national values and principles in our constitution which must be observed by all persons; state organs and public officers in the exercise of their responsibilities.

68. Article 10(1) of the constitution states that the national values and principles of governance in the said Article bind all State organs, State officers, public officers and all persons whenever any of them applies or interprets the Constitution; enacts, applies or interprets any law; or makes or implements public policy decisions. According to Article 10(2), the national values and principles of governance “participation of the people”.

69. The Court of Appeal in the matter of Kiambu County Government & 3 others v Robert N. Gakuru & Others [2017] eKLRsaid the following about Public Participation;

“…The issue of public participation is of immense significance considering the primacy it has been given in the supreme law of this country and in relevant statutes relating to institutions that touch on the lives of the people. The Constitution in Article 10 which binds all state organs, state officers, public officers and all persons in the discharge of public functions, highlights public participation as one of the ideals and aspirations of our democratic nation...”

70. This raises the question as to what amounts to public participation. This principle was defined and expanded in the South African case of Doctors for Life International vs. Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) which the High Court in Republic v County Government of Kiambu Ex parte Robert Gakuru & another [2016] eKLR defined as hereunder:

“The phrase “facilitate public involvement” is a broad concept, which relates to the duty to ensure public participation in the law-making process. The key words in this phrase are “facilitate” and “involvement”. To “facilitate” means to “make easy or easier”, “promote” or “help forward”. The phrase “public involvement” is commonly used to describe the process of allowing the public to participate in the decision-making process. The dictionary definition of “involve” includes to “bring a person into a matter” while participation is defined as “[a] taking part with others (in an action or matter); . . . the active involvement of members of a community or organization in decisions which affect them”. According to their plain and ordinary meaning, the words public involvement or public participation refer to the process by which the public participates in something. Facilitation of public involvement in the legislative process, therefore, means taking steps to ensure that the public participate in the legislative process. That is the plain meaning of section 72(1)(a).This construction of section 72(1)(a) is consistent with the participative nature of our democracy.”

71. The Respondent herein in dispensing its functions and engaging its stakeholders is bound by the Constitution of Kenya 2010 to ensure that it upholds the national values provided in Article 10.

72. It was imperative that the Respondent demonstrate to this Tribunal what practical steps it took to ensure that all its stakeholder engagement was sufficiently enabled in the process of electing the Electoral Board and drafting and approving the Electoral Code 2019.

73. The Respondent stated that its responsibility in ensuring that the draft Electoral Code was disseminated to all its members including those at the grassroots was limited to circulating the draft to the Branches which were thereafter responsible for circulating it to the sub-branches to the very least of members in the FKF structure.

74. In its defence, the Respondent states that it disseminated the said Electoral Code 30 days before the General Assembly and during the General Assembly, it is its legitimate expectation that the representatives sent by the branches represent the aspirations and intentions of the branches they belong to and their sub-branches thereto.

75. The Respondent further stated that the FKF Constitution does not stipulate how the federation will ensure that the Electoral Code is circulated to all the members beyond disseminating it to the Branches. The Respondent stated that to this end, there were discussions on WhatsApp and if indeed the delegates at the General Assembly were aggrieved by the said agenda, they would have moved to vary or change the agenda item which they did not.

76. The Tribunal recognizes that the FKF governing organ such as the National Executive Council cannot possibly move to every member of the federation, person to person, to ensure that they are well acquainted with the electoral code and give their views thereto.

77. However, the Tribunal must consider whether the federation took any positive steps to ensure that the all stakeholders were meaningfully engaged in giving their views on the Electoral code and the Electoral Board.

78. The Court in the Kiambu County Government case (supra) quoted from the South African Constitutional Court case of Minister for Health vs New Chicks South Africa Pty Ltd CCT 59/04 for the proposition that: -

"The forms of facilitating an appropriate degree of participation in the lawmaking process are indeed capable of infinite variation. What matters is that at the end of the day a reasonable opportunity is offered to the members of the public and all interested parties to know about the issueand to have an adequate say. What amounts to a reasonable opportunity will depend on the circumstances of each case."

79. Whereas FKF claims to have engaged its stakeholders, it has failed to demonstrate what steps it took to ensure adequate, timely and reasonable access of the Electoral Code to its members.

80. There is no evidence to show how branches facilitated the dissemination of the code downwards and views on the same whether it is through meetings with the members at that level, or meetings with sub-branch chairmen or publishing of the code in branch offices.

81. The Respondent has failed to demonstrate how public participation of its stakeholders was invited, facilitated and conducted and the Tribunal is impelled to the conclusion that there was no sufficient public participation.

82. The essence of public participation was captured in the case of Poverty Alleviation Network & Others vs. President of the Republic of South Africa & 19 Others, in the following terms:-

“…engagement with the public is essential. Public participation informs the public of what is to be expected. It allows for the community to express concerns, fears and even to make demands. In any democratic state, participation is integral to its legitimacy. When a decision is made without consulting the public the result can never be an informed decision.”

iv. Whether or not the Elections Board was properly constituted

83. At the heart of the dispute in both appeals is the eligibility of the Electoral Board which plays an indispensable role in the federation’s elections.

84. The Electoral Board is part and parcel of the election process from the very inception to the end. This is validated by both Electoral Codes for 2015 and 2019 elections.

85. Section three of the Electoral Code provides for the Electoral Board. Section 3(2) specifically provides for the duties of the Board as follows;

2. Duties

1. In addition to its role of supervising the electoral process, the Electoral Board’s duties shall also include, in particular;

a) Supervising the administrative process relating to the FKF elections and monitoring compliance with this electoral code as well as other electoral rules and guidelines issued by FKF, as required in the performance of its duties.

d) Admitting and declaring candidatures. In this regard, the Electoral Board shall assess whether a candidate for any FKF elective position meets the eligibility criteria provided for in the present electoral code and the FKF constitution.

86. The above provisions cannot overstate the role of the Board in ensuring that the elections are conducted and that the general principles for electoral system set out in the Constitution of Kenya 2010 as well as the general principles set out in the Code are adhered to.

87. Recognizing that the Board plays a pivotal role in the process of elections, it is necessary that the appointment of this board accord to the regulations set out.

88. Article C (4)(3) of the FIFA Standard Electoral Code provides thus;

“The ordinary general assembly at which the committee is elected shall take place at least six months before the elective general assembly at which the executive body is elected.”

89. The FIFA Code is explicit on this provision as it actually proceeds to expound on the need to adhere to the six month deadline at footnote 2 of the Statute stating that the period given is not inordinately long but it enables the members of the association to know whether or not they will submit their candidature for an elected post.

90. The members of FKF’s electoral board for the 2019 elections were made public during the federation’s General Assembly in October 2019 immediately preceding the election period which also commenced in October 2019.

91. It is clear that the provision for 6 months required by FIFA as being the minimum period within which an electoral board should be appointed was neglected by the Respondent.

92. Further, Article C of the FIFA Standard Electoral Code provides for the Electoral Committee. Article C(4)(2) prohibits members of the Committee from serving two consecutive terms.

93. The FKF Electoral Board as currently constituted is chaired by Prof. Edwin Wamukoya. According to Clause 26 of the FKF’s 2015 Electoral Rules and Regulations, Edwin Wamukoya served as a member of the Electoral Board.

94. On the face of it, the Chairperson of the 2019 Electoral Board is not eligible to sit in the Electoral Board as he also served in the previous board.

95. The Appellants have also raised the question of eligibility of Ms. Elynah Shiveka. This is twofold; that there is an apprehension of bias based on the ground that she is a member of the Sports Dispute Tribunal and secondly, that she is a government official.

96. Regarding bias, the Court of Appeal (Coram: G.B.M. Kariuki, Makhandia, Ouko, Kiage, M’inoti, J.Mohammed &, Odek, JJ.A.) while addressing the issue of recusal in Kalpana H. Rawal v Judicial Service Commission & 2 others [2016] eKLR made reference to the matter of East Africa Court of Justice which adopted the same test in Attorney General of Kenya v Prof Anyang’ Nyong’o & 10 Others EACJ Application No. 5 of 2007 when it stated:

“We think that the objective test of “reasonable apprehension of bias” is good law. The test is stated variously but amounts to this: do the circumstances give rise to a reasonable apprehension, in the mind of the reasonable, fair minded and informed member of the public that the judge did not (will not) apply his mind to the case impartially. Needless to say, a litigant who seeks disqualification of a judge comes to court because of his own perception that there is appearance of bias on the part of the judge. The court, however, has to envisage what would be the perception of a member of the public who is not only reasonable but also fair minded and informed about all the circumstances of the case.”

97. The Court of Appeal in the Kalpana Rawal (supra) also pointed to The Supreme Court of Canada where it expounded the test of recusal in the following terms in R. v. S. (R.D.) [1977] 3 SCR 484:

“The apprehension of bias must be a reasonable one held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. The test is what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. This test contains a two-fold objective element: the person considering the alleged bias must be reasonable and the apprehension of bias itself must also be reasonable in the circumstances of the case. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold. The reasonable person should also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community. The jurisprudence indicates that a real likelihood or probability of bias must be demonstrated and that a mere suspicion is not enough. The existence of a reasonable apprehension of bias depends entirely on the facts. The threshold for such a finding is high and the onus of demonstrating bias lies with the person who is alleging its existence.”

98. In the Tribunal’s view, there appears prima facie, to be no room for bias as Elynah Shiveka does not sit in the panel hearing and determining this appeal. However, while this may be so now, the Applicants could not possibly have known this when framing their case for presentation to the Tribunal. The meaning of this is this; the fact that the Tribunal has put in place mechanisms to reassure its users that its decisions will not be infected with bias does not inoculate it against the apprehension of a party who approaches the Tribunal in the knowledge that part of his or her case is against the Vice-Chair of the Tribunal.

99. It is the Applicants further submission that Ms. Elynah Shiveka is a government official by virtue of being a member of the Sports Dispute Tribunal and is thus is not eligible to sit in the Electoral Board pursuant to Article C (3) (4) and (5) which provide thus:

4. “The members of the Committee must immediately decline to give an opinion and withdraw from the matter in progress if they are:

a) A candidate for an elected post;

b) A relative, whether by birth or marriage, of one of the candidates for an elected post;

c) A government official of any kind.

5. In the event that a member does not fulfill the above requirements, the member in question shall immediately leave his position and be replaced by a substitute.”

100. The question that the Tribunal must then address is whether Ms. Elynah Shiveka is indeed a government official. The Constitution of Kenya 2010 does not define a government official. It however at Article 260 defines a Public Officer as

“public officer” means—

(a) any State officer; or

(b) any person, other than a State Officer, who holds a public office;

101. A public office is defined as;

“public office” means an office in the national government, a county government or the public service, if the remuneration and benefits of the office are payable directly from the Consolidated Fund or directly out of money provided by Parliament;”

102. A State Officer is further defined in the same section as a person holding a state office of which the Sports Tribunal is not.

103. Within the meaning of the law, a member of the Sports Dispute Tribunal does not qualify as a public officer or state officer. However, we recognize that the Sports Dispute Tribunal is established by an Act of Parliament and thus, in the strict sense, any appointment made to the Tribunal pursuant to the provisions of the Act could well be interpreted to be a government appointment.

104. For these reasons, we hold that Ms. Elynah Shiveka is not eligible to sit in the Electoral Board.

105. We therefore find that the Tribunal is improperly constituted by virtue of Edwin Wamukoye and Elynah Shiveka’s appointment to it.

106. It is the improperly constituted board that received nominations for candidature for elections of all posts within FKF. This Electoral Board also supervised the branch elections held on 23rd November 2019. It is this Board that is expected to supervise the elections for post of President of FKF scheduled for 7th December 2019.

107. What then remains of the decisions made by this Electoral Board?

108. The Tribunal is bound by precedent set by Mr. Justice Munyao inNoah Kibelenkenya vs. Simore Ololchurie & Another [2015] eKLR where the Court stated as follows:

“It cannot be said that the Tribunal herein was properly constituted. It clearly was not. It follows that if the Tribunal was not properly constituted, then its decision is null and void. A decision could only be said to be a decision of the Tribunal if the Tribunal was properly constituted”.

109. In the same vein, the Court in Republic vs. Chairman Land Dispute Tribunal Amukura Division & 2 Others exp Jared Mwimali Mukuma & Another [2014] eKLRexpressed itself as follows:

“Under section 4(2) of the Land Disputes Tribunal Act, a properly constituted Tribunal should consist of 3 or 5 members. This clearly shows the Tribunal that heard the dispute was not properly constituted and the orders were therefore issued by an irregularly and unlawfully constituted tribunal. That the Amukura Land Disputes Tribunal was improperly constituted, exceeded its jurisdiction and issued orders that were beyond its powers.”

110. We therefore find that the decisions made by the Electoral Board, being improperly constituted, are null and void ab initio.

Conclusion

111. The Tribunal fully associates itself with the scholarly text of Hon. Justice (Prof) Otieno-Odek of the Court of Appeal which were referred to in the decision of the Supreme Court (Coram: Maraga, CJ & P, Mwilu, DCJ & V-P, Ojwang, Wanjala, Njoki and Lenaola, SCJJ) in Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR to the effect that the qualitative requirements of an election comprise the entire electoral process prior to and during voting, evaluating whether the environment was free and fair within the meaning of Article 81 (e) and that that substantial non- compliance with this requirement renders the entire electoral results void.

112. As Chief Justice D Maraga stated in Raila Odinga (supra), elections are a process, not an event. The sanctity of the process of elections is what validates the result of the elections.

113. In the present appeals, the Respondent;

a. failed to adhere to the national value of public participation as set out in Article 10 of the Constitution of Kenya 2010 in formulating and adopting the Electoral Code,

b. failed to adhere to the requirements of the FIFA Statutes in constituting the Electoral Code.

114. We find that the process of elections has been marred and the resultant results of this process are therefore null and void.

Orders

115. Having found as above, the orders that commend themselves to the Tribunal are:

a. An Order that the Tribunal upholds its jurisdiction to hear and determine Causes No. 21 and No. 24 of 2019;

b. An Order that the Applicants in Causes No. 21 and 24 have locus standito present their respective grievances before the Tribunal;

c. An Order that there was insufficient Public Participation in the formulation and adoption of the Electoral Code of Football Kenya Federation 2019;

d. An Order that the Electoral Board for the Football Kenya Federation 2019 Elections is not properly constituted;

e. An Order that the Football Kenya Federation Branch Elections held on 23rd November 2019 are hereby declared null and void;

f. An Order that Football Kenya Federation Presidential Elections to be held on 7th December 2019 are hereby cancelled;

g. An Order that the Football Kenya Federation engage its stakeholders in public participation in the formulation of the Electoral Code of Football Kenya Federation 2019;

h. An Order that the Football Kenya Federation reconstitute the Electoral Board for the Football Kenya Federation Elections 2019;

i. An Order that thestatus quoat the Football Kenya Federation National Executive Committee be maintained pending fresh elections to be conducted once Football Kenya Federation has complied with the Orders of the Tribunal.

j. As this matter was brought in the interests of all stakeholders in the game of football, each party shall bear its own costs.

Dated at Nairobi this 3rd day of December 2019

___________________________________

John M. Ohaga, C.Arb

Chairperson

_________________________ ___________________________

J Njeri Onyango, Member Mary N Kimani, Member

[1] See judgment of Justice E C Mwita in Petition No. 279 of 2016