[2016] KESDT 13 (KLR)

REPUBLIC OF KENYA

THE JUDICIARY

OFFICE OF THE SPORTS DISPUTES TRIBUNAL

Sports Disputes Tribunal Petition No. 13 of 2015

KENYA ROWING & CANOE FEDERATION

-versus-

NATIONAL OLYMPIC COMMITTEE OF KENYA

&

THE REGISTRAR OF SPORTS

DECISION

Hearing: 12th January, 2016

Panel: Mr. John M Ohaga Chairperson

Mr. G M T Ottieno Member

Mr. Peter Ochieng’ Member

Appearances: Mr. Mohamed Bashora for the Petitioner

Mr. Edward Rombo for the 1stRespondent

No appearance for the 2ndRespondent

The Parties

1. The Petitioner avers that it is the national sports organization in Kenya managing the water sports of rowing and canoeing. Its registration is under consideration by the Registrar of Sports pursuant to Part VI of the Sports Act, 2013 (hereinafter referred to as ‘the Sports Act’).

2. The 1st Respondent is the national sports umbrella organization managing all olympic sports in Kenya.

3. The 2nd Respondent is the Registrar of Sports who is enjoined in this Petition as a Respondent pursuant to section 46 of the Sports Act.

The Background

4. The Petitioner lodged its Petition together with verifying affidavits sworn by Mohamed Butte Bashora and James Mweu Maingi on 2nd December, 2015. The 1st Respondent filed its Statement of Defence and witness statement by Francis K. Paul on 15th December, 2015.

5. The Sports Registrar did not enter appearance nor file any response in this matter.

6. The Tribunal heard the oral arguments by counsel for the Petitioner and 1st Respondent on 12th January, 2016.

The Dispute

7. The Petitioner avers that its members are former members of the Kenya Rowing & Canoe Association (hereinafter referred to as ‘the Association’) and that they purportedly relinquished their membership being dissatisfied with the management of the Association.

8. The Petitioner avers that its members made several attempts to get audience with the leadership of the Association so as to discuss the manner in which the Association was being managed but these efforts were unsuccessful.

9. The Petitioner submitted that through their clubs, Mohamed Butte Bashora, James Mweu Mwangi and John Raila were directed to apply for fresh registration of the Association with themselves as Chairman, Secretary General and Treasurer respectively.

10. The Petitioner claims that the same was acknowledged on 2nd December, 2014 by the Registrar of Sports. However, no evidence was tendered to support this allegation.

11. Vide a letter dated 29th April, 2015 the Registrar of Sports informed the Petitioner that its application was received on 24th November, 2014 which was beyond the prescribed period of transition provided for under Section 50 of the Sports Act and Legal Notice 125 and as a consequence their application was being analyzed as neither a transited nor a registered sports organization having ceased to have the same status on 1st August 2014, once year after the enactment of the Act.

12. The Petitioner further submitted that the 1st Respondent was aware of the change of governance in relation to the sport of rowing and canoeing but it has failed to grant it recognition nor acknowledge it thereby denying the Petitioner an opportunity to be recognized by international partners such as World Rowing Federation (FISA) and International Canoe Federation (ICF) or to participate in international tournaments.

Petitioner’s Case

13. Mr. Bashora, who appeared for the Petitioner submitted that the Association which was registered under the Societies Act on 21st March, 2007 ceased to exist as a legal entity on 1st August, 2014 pursuant to the Sports Act.

14. The Petitioner contended that pursuant to Rule 8 (3) of the Association’s Constitution, its membership convened a special general meeting on 7th January, 2015 at the Nyayo National Stadium which resolved to change the name of the association to the ‘Kenya Rowing & Canoe Federation’ (hereinafter referred to as ‘the Federation.’

15. He further submitted that up to the date of making their application, the Association had not yet applied for registration with the Registrar of Sports.

16. It was further submitted that the Petitioner held a general meeting within 90 days of its establishment and that its membership reviewed and adopted a new constitution and held elections of key officials whose results were filed with both the 1st and 2nd Respondents vide the Petitioner’s letter dated 12th March, 2015.

17. The Petitioner asserted that after the elections, they took full mandate of managing the olympic sport of rowing and canoeing in Kenya but did not receive communication on the administrative and structural changes from the 1st Respondent. As a result, the Petitioner avers that the 1st Respondent’s inaction has resulted in its non-recognition by international actors as well as lost opportunity for its membership to participate in prestigious international events.

18. The Petitioner prays for:

a) An order compelling the 2nd Respondent to grant interim letters of recognition of the Petitioner and its officials pending the completion of the vetting process by the Registrar of Sports;

b) An order restraining the 1st Respondent from transacting any business appertaining to rowing and canoeing with the officials of the Kenya Rowing & Canoe Association;

c) An order compelling the 1st Respondent to introduce the Petitioner and its officials to international sports authorities as the duly instituted national authority managing rowing and canoeing in Kenya;

d) An order compelling the 1st Respondent to co-operate with the Petitioner;

e) A declaration that the Kenya Rowing & Canoe Association officials are unfit to hold office; and

f) Other reliefs that the Tribunal may seems fit to award.

1st Respondent’s Case

19. Mr. Rombo, Counsel for the 1st Respondent submitted that they do not recognize the Kenya Rowing & Canoe Federation but continue to recognize the Kenya Rowing & Canoe Association and that this has been previously communicated to the Petitioner.

20. Counsel further contended that the Sports Registrar in her letters to the Petitioner dated 2nd December, 2014 and 9th March, 2015 refers to the Kenya Rowing & Canoe Association and not the Kenya Rowing & Canoe Federation. This is prima facie evidence that there also is an application for registration filed by the Association.

21. The Respondent further submitted that notwithstanding the Sport Registrar’s letter dated 29th April, 2015 to the Federation, its import was that the federation is not a transiting body and was further advised to apply afresh as a new body.

22. Mr. Rombo averred that it is not the National Olympic Committee of Kenya’s mandate to recognize or to determine which members of a federation, association or group are elected officials even though they sometime assist in overseeing elections.

23. Consequently, the Respondent prayed that the entire claim be dismissed with costs.

Issues for Determination

24. Having read the pleadings filed and listened to the elaborate submissions made on behalf of the Petitioner and the 1st Respondent, the Tribunal finds that the following are the issues for determination:

i) Whether the National Olympic Committee of Kenya ought to recognize the Petitioner; and

ii) Whether the prayers sought by the Petitioner are premature.

Whether theNational Olympic Committee of Kenya ought to recognize the Petitioner

25. The Kenya Rowing & Canoe Association was registered as a society under the Societies Act and has been managing the sport of rowing and canoeing since 21st March, 2007. (The Certificate of Registration was produced to this Tribunal).

26. On the 24th November, 2014 the Kenya Rowing & Canoe Federation submitted its application together with the requisite documents to the Registrar of Sports to be registered as the national authority for all forms of the sports of rowing, canoe-kayak and dragon boat in Kenya.

27. Through a letter dated 2nd December, 2014 the Registrar of Sports acknowledged receipt of its application and subsequently through a letter dated 29th April, 2015 the Federation was informed that it had no locus before the Registrar and that it was instructed to submit all relevant documents including their reviewed Constitution to enable the office proceed with the registration process.

28. Section 50 of the Sports Act provides as follows:

“(1) A sports organization, which was duly registered under the Societies Act and existing immediately before the commencement of this Act shall be required to apply for registration under this Act within one year after the commencement of this Act.

(2)………….”

3) An existing sports organization that does not apply for registration within the time prescribed in subsection (1), shall not be recognized as a sports organization for the purposes of this Act:

Provided that an existing sports organization in respect of which —

(a) an application for registration has been made by it under subsection (1) and has not been rejected; or

(b) an appeal has been lawfully made under this Act and remains undetermined, shall continue to be recognized as a sports organization for the purposes of this Act.

29. From the foregoing it suffices to say that for an existing sports organization to be transited, all that it needs to do is to apply for registration within the prescribed time frame.

30. There was failure by the Kenya Rowing & Canoe Association to apply for registration within the prescribed timeframe. Nonetheless, due to indulgence by the Sports Registrar the application was received and is being considered.

31. With respect to the alleged entity referred to as the Kenya Rowing & Canoe Federation which is the present Petitioner, the chronology of events as set out in the Petition do not satisfy us that a new entity could have come into existence just by the fact of a special meeting of the Association at which the members resolved to transform into the Federation. At best, what we have is a change of name from ‘Association’ to ‘Federation’ and there are in fact no two rival bodies running the sport of rowing as sought to be advanced by the Petitioner.

32. Be that as it may, the Petitioner’s action of changing the Constitution and the name of the organisation demonstrate to us a group’s frustration with its governance and a potential transit, but not a creation of the Kenya Rowing & Canoe Federation.

33. From our reading of the Sports Act there is an obligation on the Registrar of Sports to continue to recognize existing sports organization upon receiving an application by use of the word “shall” under section 50. In the case of Standard Chartered Bank Limited vs. Lucton (Kenya) Ltd HCCC No. 462 of 1997 Hon. Justice Ringera stated that:

“as I understand the canons of statutory interpretation, the use of the word “shall” in a statute only signifies that the matter is prima facie mandatory.”[Emphasis added]

34. It is to be noted therefore that the actions of the Registrar of Sports in refusing to recognize the Kenya Rowing & Canoe Federation as a transiting organization and recognizing it as a potential new applicant are well within the law.

35. It poses great difficulty to fathom how and why the National Olympic Committee would be compelled to recognize an entity which the Registrar of Sports has yet to recognize.

36. As will be elaborated further in the ensuing paragraphs, it is not within the purview of the Tribunal in the current set of circumstances to determine the legality or otherwise of the Federation as pleaded by the Respondent but the Tribunal shall limit its findings to the status of the Federation in respect to registration.

Whether the prayers sought by the Petitioner are premature

37. Paragraph 24 of the Petition alludes to the fact that the Registrar of Sports is still reviewing the Petitioner’s application.

38. The 1st Respondent in response stated that the only entity it is aware of is the Kenya Rowing & Canoe Association which it continues to regard as its member.

39. The 1st Respondent through its Advocate submitted that the Petitioner’s case is premature as the Registrar of Sports has not yet made a determination on either the Kenya Rowing & Canoe Federation’s application or the application made by the Kenya Rowing & Canoe Association.

40. Section 48(1) of the Sports Act states as follows-:

“A national sports organization registered under this Act shall be issued with a certificate of registration in the prescribed form.”

41. From the foregoing it is instructive to note that a certificate of registration is sufficient proof that a sports organization has been registered. From the record and the pleadings before the Tribunal, no certificate of registration has yet been issued by the Registrar of Sports and it is therefore sound to conclude that no national sports organization in relation to this sport has been registered as of now.

42. In the letter dated 29th April, 2015 to the Federation, the Registrar of Sports states as follows:

‘’Since we are still in the process of analysing your application, you are neither a transited nor registered sports organisation … I however urge you to ensure you submit all the relevant documents and your reviewed constitution to enable our office proceed with the registration process.’’

43. It is very clear to us that no final decision as to registration has yet been made and the Tribunal therefore choses to desist from usurping the Sports Registrar’s powers. Further, under Section 46(2)(d) of the Sports Act, the Registrar of Sports is mandated to arbitrate registration disputes between sports organizations.

44. Having made the above findings, the Tribunal cannot grant prayers (a) to (d) without it amounting to double speak. As relates to prayer (e), the Tribunal finds that the prayer is without merit as the Kenya Rowing & Canoe Association is not a party to this matter and no adverse orders ought to be made against it without it being accorded the right to a fair hearing as is enshrined under Article 50 of the Constitution of Kenya, 2010.

45. However, as the Tribunal has already noted, that the manner in which the Kenya Rowing & Canoe Federation was formed creates doubts as to its legality. It is essential that for the purposes of law and order in sports, organizations seeking to represent the interests of sports persons must be properly formed and constituted. It is an oxymoron for the Federation to purport to be borne out of a Constitution to which it did not uphold while seeking to exit the Kenya Rowing & Canoe Association.

46. The Tribunal appreciates that even though there may be wrangles in the management of sports organizations, it is not sound practice for factions within the organization to purport to form duplicate organizations and claim, as the Federation has in this case, to change names and transit into ‘a new organization’. Such defects as to the legality of the organization cannot be cured by simply amending the Constitution of a sports organization. It is prudent, however, for those seeking accountability in the management of sports to put to task the organization’s leadership through the internal mechanisms of the organization and in the event that this fails, there are other legitimate channels of addressing these grievances.

47. Having reached the foregoing conclusions in relation to this Petition, the Tribunal finds that there is no merit in the Petition and the same is accordingly dismissed. As the Tribunal has expressed doubts about the actual existence of the Petitioner as a legal entity, it is futile to make an order for costs against it. There shall therefore be no order as to costs.

The Tribunal commends Counsels appearing for their cooperation in facilitating the timely hearing and determination of this Petition and for their helpful submissions.

DATED at NAIROBI this 2ndday of February, 2016

Signed:

John M. Ohaga

Chairman, Sports Disputes Tribunal

Delivered in the presence of:

1. ________________________

2. ________________________

3. ________________________

4. ________________________

5. ________________________

6. _______________________