[2022] KEHC 17159 (KLR)

Kenya Basketball Federation v Achiego; Ulinzi Basketball Club & 3 others (Interested Parties) (Civil Appeal E570 of 2022) [2022] KEHC 17159 (KLR) (Civ) (2 November 2022) (Ruling)

Neutral citation: [2022] KEHC 17159 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E570 of 2022

JN Mulwa, J

November 2, 2022

Between

Kenya Basketball Federation

Applicant

and

Dennis Opiyo Achiego

Respondent

and

Ulinzi Basketball Club

Interested Party

Emyba Basketball Club

Interested Party

Lakeside Basketball Club

Interested Party

KPA Basketball Club

Interested Party

(Sports Disputes Tribunal delivered on June 15, 2022 in SDTSC No E020 of 2022 Tribunal Case E020 of 2022 )

Ruling

1. The Appeal herein arises from the decision of Sports Disputes Tribunal delivered on June 15, 2022 in SDTSC No E020 of 2022 which was concluded in favour of the Respondent. It was instituted by way of a Memorandum of Appeal dated July 22, 2022 filed in court on July 27, 2022.

2. Subsequent to the filing of the Appeal, the Applicant filed a Notice of Motion dated September 9, 2022 seeking various orders inter alia stay of execution of the judgment of the Tribunal and that the Appeal lodged out of time be deemed as duly filed.

3. In opposition, the Respondent filed a Notice of Preliminary Objection dated September 28, 2022 in which he contends that this court lacks the requisite jurisdiction to entertain the appeal herein as well as the Appellant’s application and thus the same should be struck out.

4. In the circumstances, the court directed that the preliminary objection be dispensed with first. The preliminary objection was canvassed by way of written submissions.

5. The Respondent submitted that under Article 165(3) (e) of theConstitution, the High Court can only exercise appellate jurisdiction conferred on it by legislation. He contended that unlike other legislations that create Tribunals and expressly provide that appeals therefrom lie in the High Court such as the Cooperative Societies Act, the Rent Restriction Act and the Political Parties Tribunal; the Sports Act, 2013 does not make any such provision as regards the decisions of the Sports Tribunal. In his view, this court cannot therefore arrogate itself jurisdiction unless as expressly provided by theConstitution or Statutes. Reliance was placed on the Supreme Court decision in Samuel Kamau & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR where the court held similar sentiments.

6. Further, he argued that even Article 165 (6) of theConstitution cannot aid the Applicant’s appeal as the High Court can only exercise its supervisory jurisdiction by way of judicial review and not on appeal. It was the Respondent’s submission that an appeal against the decision of the Sports Tribunal can only lie in the Court of Arbitration of Sport (CAS) in Lausanne whose jurisdiction the Applicant expressly submitted itself to pursuant to Article 21(4) of its own internal Constitution. He stated that Rule 27 of the Court of Arbitration Code clothes it with appellate jurisdiction over decisions made by national sports bodies such as the Sports Tribunal. In his view therefore, the court must down its tools forthwith and strike out the Applicant’s application dated September 9, 2022 and the Memorandum of Appeal filed herein.

7. On the other hand, the Applicant submitted that the preliminary objection was not properly raised as the Respondent did not make reference to any specific provision of the law. It asserted that the Sports Act, 2013 does not oust the appellate jurisdiction of this court and contended that if that was the intention of the legislature, nothing would have been easier than to include such a provision in the legislation. Further, the Applicant argued that the Respondent’s insistence on the filing of an appeal from the decision of the Sports Tribunal in Lausanne Switzerland rather than this court violates its constitutional right of access to justice under Article 48 of theConstitution. It submitted that a wholesome reading and interpretation of the Constitutional provisions relating to the jurisdiction of the High Court and the national values reveal that appeals from the Sports Tribunal can only lie in this court.

8. What constitutes a Preliminary Objection was set out in the case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd (1969) EA 696, where the court stated as follows:-'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 a Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.'

9. It is well settled that jurisdiction is urisdiction flows from either the Constitution or Legislation or both, it goes without saying that jurisdiction is clearly a pure point of law and thus, the instant preliminary objection falls within the rubrics of Mukisa Biscuits case (Supra 10. Does this court have jurisdiction to determine an appeal from a decision of the Sports Tribunal? The fact that jurisdiction flows from theConstitution or Statutes is not in doubt. The Supreme Court in Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & 2 Others [supra] expressed itself thus:'A Court’s jurisdiction flows from either theConstitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by theConstitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where theConstitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.'

11. There is no dispute that the Sports Act, 2013 is silent on where appeals from the Sports Tribunal should lie. Some legislations such as the Anti-Doping Act at Section 32 thereof expressly provide that international organizations such as the World Anti-Doping Agency, the International Olympic Committee, the International Paralympic Committee and the relevant International Federations shall have the right to a second appeal to the Court of Arbitration for Sports (CAS) with respect to the appeal decisions of the Sports Tribunal relating to doping crimes. A quick perusal of the documents before this court reveals that the dispute herein was not related to a doping crime and did not involve an international federation so as to qualify for automatic appeal to the Court of Arbitration of Sport (CAS) in Lausanne as insinuated by the Respondent. Further, nothing has been placed before this court to prove that the Applicant, through its internal Constitution, agreed to submit itself to the jurisdiction of the Court of Arbitration. He who alleges must prove.

12. Does this therefore mean that the Applicant cannot have any recourse if aggrieved by the decision of the Sports Tribunal? I do not think so. Article 165(3) (e) of theConstitution clothes this court with appellate jurisdiction which can only be exercised over decisions of subordinate courts and/or certain statutory tribunals. In addition, Article 165(6) of theConstitution confers on the High Court supervisory jurisdiction over subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function. Since the Sports Disputes Tribunal is a quasi-judicial body constituted of members appointed by the Judicial Service Commission in consultation with national sports organizations, it automatically follows that its decision is amenable to this Court’s appellate jurisdiction despite the fact that the Sports Act, 2013 does not expressly state so.

13. In the premises, the Respondent’s preliminary objection is found to be without merit and is hereby dismissed with costs to the Applicant.

Orders accordingly.Dated, Signed and Delivered this 2ndDay of November, 2022. J.N. MULWAJUDGE