[2022] KESDT 145 (KLR)

Kenya National Paralympic Committee v Wheel Chair & Amputee Association of Kenya & 8 others (Tribunal Case E010 of 2022) [2022] KESDT 145 (KLR) (Civ) (13 April 2022) (Decision)

Neutral citation: [2022] KESDT 145 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Civil

Tribunal Case E010 of 2022

E.Sifuna-Shiveka, Vice Chair, E. G. Kiplagat & MN Kimani, Members

April 13, 2022

Between

Kenya National Paralympic Committee

Petitioner

and

Wheel Chair & Amputee Association of Kenya

1st Respondent

Kenya Sports Association for the Visually Impared

2nd Respondent

Celebral Palsy Association of Kenya

3rd Respondent

Mentally Handicaped Association of Kenya

4th Respondent

Doris Atieno

5th Respondent

Rose Waruhiu

6th Respondent

Ronald Milare

7th Respondent

Jennifer Kamande

8th Respondent

Alfred Simiyu

9th Respondent

Decision

The Case 1. The Petitioner has approached the Tribunal vide his petition and application under certificate all dated 10/02/2022 filed with the Tribunal.

2. The petitioner prays for conservatory orders /injunction issued against the 1st Respondent restraining them from proceeding with the fraudulent and irregular election of 11/02/2022 and further restraining the 2nd,3rd and 4th Respondents and any of its members from preparing and conducting any elections of the federation pending the conclusion of the review and amendment of the Kenya National Paralympics Committee constitution which is in progress.

3. They further prayed that the Tribunal be pleased to issue an order to Nyayo National Stadium the proposed venue of the fraudulent elections directing them not to allow the elections of the 1st Respondent slated for 11/02/2022 that are to be held within their premises.

4. They also prayed for an order directing the Registrar of Sports not to recognize the fraudulent elections or effect any changes of officials of the federation any other consequential decisions arising from the purported fraudulent elections.

5. They further relied on the supporting affidavit of Agnes Oluoch and Elijah Aliero dated 10/02/2022 where they stated that they are Chairperson and Secretary General of the Petitioner respectively. They also filed a supplementary affidavit dated 09/03/2022. They note that they are the umbrella body of the various sports federations of the physically challenged which includes the 1st,2nd,3rd and 4th Respondents.

6. The two officials noted that a faction of the 1st Respondent purported to call for elections of the federation without involvement of the bonafide officials of the federation and before the conclusion of the amendment of the KNPC constitution.

7. They further noted that the said notice purporting to call for the election of the 1st Respondent was not signed by the bonafide official as it was called by the 9th Respondent who purported to illegally act as the Secretary General.

8. They also noted that the 1st Respondent has a Deputy Secretary General who has the mandate to act for the federation where the Secretary General is unable to act and this is not the case with the impugned notices.

The Response 9. The 1st Respondent through its Chairperson one Sospeter Maina Mwangi filed a replying affidavit dated 21/02/22 agreeing with the motion dated 10/02/22 by the Petitioner.

10. He stated that the notice issued for the elections by one Alfred Simiyu a co-opted member of the federation was unprocedural. He noted that the only person who could issue such a notice was one Elijah Mwandihi the Secretary General of the 1st Respondent. He further stated that he enquired from Mr. Mwandihi as to whether he issued such a notice but he denied having done so.

11. Mr. Maina also proceeded to quote Article 19. 3 of the 1st Respondent constitution that bestows the Secretary General with the power to issue notices and calling for meetings.

12. He further stated that the notice for elections of any SGM or AGM is also sent to the Petitioner as a matter of practice given that the 1st Respondent is a member of the Petitioner as per Article 6 of the 1st Respondent’s constitution.

13. The 3rd Respondent filed a replying affidavit dated 21/02/22 by Leonard Misigo while the 4th Respondent filed a replying affidavit dated the same day associating themselves with the sentiments of the 1st Respondent and the Petitioner

14. The 5th,7th ,8th and 9th Respondents filed a joint replying affidavit dated 17/02/2022. The 7th Respondent and 8th Respondent filed further replying affidavits both dated 25/02/2022. They jointly state that the 1st Respondent is registered with the Sports Registrar as an independent autonomous national multi-disability sport organization in line with sections 1-7 and 46 of Sports Act and Part II of the Sports Regulations 2016 and as such it is not a branch of the Petitioner and that on election matters it does not derive its mandate from the KNPC.

15. They further note that the Second Schedule to the Sports Act and Part VI of the Sports Registrar Regulations gives WASK the mandate and authority to organize and conduct elections independently under its own constitution after having notified the Sports Registrar in writing four (4) weeks to the date of elections.

16. They further state that in accordance with the Petitioner’s constitution in particular Article 4(4. 3) clause 4. 3.1. 2 and the Second Schedule to the Sports Act the 1st Respondent does not recognize the current Executive Committee of the Petitioner and it deliberately failed to conduct elections for over 3 years now bearing in mind that the Committee was last elected on 14/10/2014 and therefore the Executive Committee is operating illegally against the provisions of the law.

17. They also state that the ongoing review of the KNPC constitution should not in any way suspend or quash the authority of the electoral provisions of the 1st Respondent, the Sports Act and the Registrar’s Regulations.

18. They stated that the review of federations constitutions claimed by the KNPC were conducted and dispensed with in 2019-2020 during the KNPC mediation process spearheaded by this Tribunal under the leadership of Counsel Edward Rombo.

19. They noted that the AGM held on 15/12/2021 was called as a result of the 1st Respondent’s Executive Committee stalling the Elections for 3 years and that the AGM held on 15/12/2021 was attended by the bona fide Executive Committee officials including Elijah Mwandihi Aliero the Secretary General of both the 1st Respondent and the Petitioner.

20. They prayed that the Tribunal throws out the petition and allow the 1st Respondent’s elections to continue as well as an order to the Petitioner to conduct its long overdue elections or in the alternative the Tribunal takes the lead role in organizing the Petitioner’s elections.

21. The 9th Respondent filed an affidavit dated 17/02/2022 associating himself with the sentiments expressed by the 5th,7th and 8th Respondents and saying that he has authority to swear the affidavit on behalf of the 1st Respondent.

22. The 9th Respondent also states that he is a member of the governing council and was present at the meeting that authorized him to act as the Acting Secretary in the elections that was to take place.

23. The 6th Respondent filed a replying affidavit dated 16/02/2022 associating herself with the position of the Petitioner. She noted that the elections were unprocedurally called as they had not been sanctioned by the 1st Respondent and had also not been called by the bona fide official, the Secretary General of the 1st Respondent as per the 1st Respondent’s constitution.

24. She further stated that she refunded monies she received from persons who were interested in vying for various positions in the federation after she came to the knowledge that the impugned elections of 11/02/2022 were unprocedural.

Hearing 25. The Tribunal heard the petition ex-parte under certificate of urgency on 10/02/2022 and gave conservatory orders suspending the elections of 11/02/2022 until the matter was heard and determined.

26. On 23/02/2022 the matter was fully heard. All the parties relied entirely on their pleadings and made oral highlights. The Tribunal advised the parties that the decision of the Tribunal would be delivered on notice. The Tribunal extended the interim orders until then.

Determination 27. Having taken into account the parties’ pleadings and oral submissions, the Tribunal finds that the main issues for determination is whether the elections of 11/02/2022 were procedurally called and whether the Petitioner has locus to file this claim.

28. The jurisdiction of this Tribunal stems from section 58 of the Sports Act that provides:“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.”

29. The parties herein have by their express conduct submitted themselves to the jurisdiction of this Tribunal. We therefore find that we have the jurisdiction needed to determine this petition.

30. The Tribunal will make reference to the 1st Respondent’s constitution to decide on the questions before us.

31. Article 19. 3 (e) of the 1st Respondent’s constitution states that among other duties the Secretary General shall:“Set the agenda and give notice of all meetings.”

32. It is beyond peradventure that the Secretary General is the official mandated under the 1st Respondent’s constitution to issue a notice for all meetings including the purported elections of 11/02/2022.

33. The 5th,7th 8th and 9th Respondents did not dispute that the bona fide Secretary General was one, Elijah Aliero. These was evident from the various replying affidavits they had filed as well as from their oral submissions.

34. Unfortunately, the said Respondents did not tender any evidence showing how Mr. Aliero was replaced with the 9th Respondent or how the latter delegated his authority under the 1st Respondent’s constitution.

35. In fact, the 9th Respondent one, Mr. Alfred Simiyu who purported to issue the notice for elections for 11/02/2022 in his affidavit dated 17/02/2022 states that the Governing Council of the 1st Respondent mandated him to act as Acting Secretary General in the elections that were to take place. However, he did not tender any form of evidence to support his assertions such as minutes or resolutions passed by the Governing Council.

36. On the issue that the Petitioner lacks locus to bring this case under Article 6 of the 1st Respondent’s constitution we submit that the 1st Respondent is a founder member of the Petitioner and is listed as a full member under Article 3. 2.1. 1.1 of the Petitioner’s constitution.

37. Our reading of these provisions does not in any way diminish the rights of the Petitioner to seek legal redress where a dispute like the instant one arises. If anything the 1st Respondent is described as an “integral and active” constituent of the Petitioner in Article 6. 2 of the 1st Respondent’s constitution hence the Petitioner cannot sit idly by if it is to achieve the objects of its members under Article 2. 1 of the Petitioner’s constitution.

46. Federations should always follow their constitutions and the law if proper sports governance is to be achieved with a measure of success. This Tribunal will not countenance such a departure. That is why we agree with the Petitioner here.

Conclusion 47. It is therefore in consideration of this, as well as the parties’ submissions that the Tribunal makes the following orders:a.The petition dated 10/02/2022 is hereby allowed;b.Each party shall bear its own costs.

DATED AT NAIROBI THIS 13TH DAY OF APRIL, 2022MRS ELYNAH SIFUNA-SHIVEKADEPUTY CHAIRPERSON, SDTMR. E. GICHURU KIPLAGATMEMBER, SDTMS. MARY NYOKABI KIMANIMEMBER, SDT