[2024] KESDT 365 (KLR)

Kibe (Suing as an official of Kenya Professional Esports Federation) v Sports Registrar & another (Appeal E043 of 2023) [2024] KESDT 365 (KLR) (26 March 2024) (Decision)

Neutral citation: [2024] KESDT 365 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Appeal E043 of 2023

E. G. Kiplagat, Chair, MN Kimani & Gabriel Ouko, Members

March 26, 2024

Between

Nick Kibe (Suing As An Official Of Kenya Professional Esports Federation)

Claimant

and

Sports Registrar

1st Respondent

Electronic Sports Kenya Federation

2nd Respondent

Decision

Hearing:Proceeded via written SubmisionAppearances:1. The Claimant was represented by Stacey Bonareri Advocate.2. The 1st Respondent was represented by Martin Munene Advocate. Advocates3. The 2nd Respondent was represented by M.Kehonji Advocate. The Parties 1. The Claimant has brought this claim on behalf of a sports organization that has allegedly been denied registration under the Sports Act,2013.

2. The 1st Respondent is a creature of the law established as such under section 45 of the Sports Act.

3. The 2nd Respondent claims to be a sports organization registered as such under the Sports Act,2013.

The Case 4. The Claimant filed a motion with the 1st Respondent on 11/11/2022c seeking to obtain a license to operate a professional E-Sport body that sought to promote and develop a professional ecosystem for E-Sports and to establish a professional framework in E-sports ecosystem. The Claimant subsequently also filed amendments to the claim.

5. The Claimant further noted that the 1st Respondent failed to issue a license to the Claimant ‘s organization and sought to also oust the Claimant’s affiliation with the International E-sports Federation and the African Confederation of Digital Sports. The Claimant alleges that he sought communication from the 1st Respondent through a letter dated 09/10/2023 and no communication was forthcoming.

6. The Claimant further states that they have fully complied with the Sports Registrar’s Regulations including holding various engagements with the 1st Respondent in order to comply for issuance of a license.

7. The Claimant alleges that the Respondents are causing a negative effect on the Claimant and that failure to issue them with a license has stifled their plans to launch projects.

8. The Claimant’s are summarized as thus:a.The 1st Respondent be compelled to issue a license to the Claimant.b.The Respondents be issued with an injunction from interfering with the Claimants affiliation with respect to International and Regional Affiliations.c.A finding that the 1st Respondent is in contravention of the Sports Act, 2013 and the Sports Registrar’s Regulations,2016. d.Costs of the suit.

The 1st Respondent’s Response 9. The 1st Respondent filed written submissions dated 16/01/2024. The 1st Respondent stated that the Claimant lacks locus standi to sue as the Kenya Esports Federation is yet to be registered and as such the Claimant has no capacity to sue.

10. The 1st Respondent notes that the Claimant filed an application with the 1st Respondent on 18/11/2022 and the same was acknowledged on 06/12/2022 seeking to obtain a license as a professional sports body.

11. The 1st Respondent further noted that the proposed name by the Claimant was set out as “Kenya Professional Esports Federation” but from the 1st Respondent’s records the 1st Respondent had already registered another federation being, “Electronic Sports Kenya Federation” which was registered on 24/05/2018.

12. The 1st Respondent also avers that the registered Electronic Sports Kenya Federation is as per its constitution also referred to us, “esports Kenya Federation” and therefore the Claimant’s proposed professional body’s name was similar to that of an existing and registered National Sports Organization and that the objectives of the proposed professional body and the 2nd Respondent were similar.

13. The 1st Respondent also stated that the Claimant did not have an affiliation to an international sports body and equally the Claimant failed to furnish the 1st Respondent with the constitution of the international body that they seek affiliation to.

14. The 1st Respondent further notes that section 46 of the Sports Act provides for the registration of a sports body that is responsible for a particular sports discipline nationally and further that section 47 (2) of the Sports Act bars the 1st Respondent for registering more than one sports organization in any one sports discipline.

15. The 1st Respondent also noted that the Claimant misconstrued and misinterpreted sections 2 and 45(2) of the Sports Act and Regulation 16 (2)(b) of the Sports Registrar’s Regulations. The 1st Respondent avers that Regulation 16 requires the Claimant to furnish the 1st Respondent with copies of contracts of all sports persons under its charge and a declaration that the Claimant will observe anti-doping rules and all required documents accompanying the application for a license and that these documents were never availed by the Claimant.

16. The 1st Respondent also noted that she wrote a letter dated 04/10/23 to International Esports Federation requesting them to recognize Electronic Sports Kenya Federation as the National Sports Organization which is duly registered in her capacity as the regulator and licensing of Sports organizations and professional sports and persons in Kenya and that she did not act ulta vires.

17. The 1st Respondent also stated that an injunction cannot be issued against the 1st Respondent as this office is protected under section 16 (2) of the Government Proceedings Act (Cap 40) and Order 29 rule 2 (2) (3) of the Civil Procedure Rules.

The 2nd Respondent’s Response 18. The 2nd Respondent filed a response to the claim dated 06/12/2023. The 2nd Respondent avows that it is keen to resolve any dispute between itself and the Claimant amicably through the alternative dispute resolution mechanisms under the Sports Registrar’s Regulations,2016 and the constitution of Kenya.

19. The 2nd Respondent states further that it became aware of the Claimant’s licensing about October,2023 and that it is not aware of any further details and the communication between the Claimant and the 1st Respondent.

20. The 2nd Respondent further notes that it reached out to the Claimant for a settlement via letter dated 19/10/2023 as the 2nd Respondent was registered ahead of the Claimant in 2018. However, despite the many attempts to amicably resolve the dispute the Claimant declined the overtures.

21. The 2nd Respondent also contends that as a national body it has no control in the process of admitting members to the international affiliates and that the failure by the Claimant to be admitted into an international federation or affiliate is not within their province whatsoever. They aver that any accusations of that nature by the Claimant are baseless, unfounded and utter falsehood and only meant to tarnish the name of the 2nd Respondent.

22. The 2nd Respondent avers that contrary to Regulation 21 of the Sports Registrar Regulations,2016 the Claimant has not exhausted the dispute resolution mechanisms outlined therein before moving this Tribunal.

23. The 2nd Respondent therefore prays that the suit be dismissed in its entirety with costs.

Hearing 24. The matter proceeded by way of written submissions. The Claimant filed written submissions dated 7th December,2023 while the 1st Respondent filed written submissions dated 16/01/2024. The 2nd Respondent filed written submission dated 22/01/2024.

Discussion 25. Having taken into account the parties’ pleadings and written submissions, the Tribunal states as follows:

26. 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.”

27. 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.”

28. This is a claim touching on the acts of commission or omission of the Sports Registar.The dispute gravitates around the non-registration of the Claimant as a sports organization under the Sports Act,2013. This is therefore a dispute falling under section 58 (c) of the Sports Act. The Tribunal therefore has jurisdiction to handle this matter.

29. We also take the view that the Claimant is properly before us and has locus standi to file this case. Section 58(c) of the Sports Act provides that the Tribunal has jurisdiction to determine appeals from the decisions of the Sports Registrar under the Act. As much as the proposed sports organization, the Kenya Professional Esports Federation is not registered this suit has been brought by one Nick Kibe who has capacity to sue or file this appeal against the 1st Respondent for allegedly declining registration of the Claimant, a fact admitted by the 1st Respondent in paragraphs 9 and 10 of her written submissions dated 16/01/2024. No party has provided any evidence that is contrary to this finding.

30. The interpretation by the 1st Respondent and the assertion that the Claimant has no locus standi is to say the least too narrow and bereft of critical underpinnings of the law. Certainly, this was never the intention of Parliament when they promulgated the Sports Act,2013. Indeed,Article 48 of the Constitution of Kenya provides that:“The State shall ensure access to justice for all persons...”

31. Having stated as much we are of the view that this dispute can based be addressed under Section 49 of the Sports Act. The 2nd Respondent and the Claimant have attempted to resolve this matter amicably but without any measure of success as seen from their pleadings. However, we are of the view that this dispute still provides a watershed moment for the parties to resolve it through mediation with the expertise and assistance of this Tribunal.

Conclusion 32. It is therefore in consideration of this, as well as the parties’ submissions that the Tribunal makes the following orders:a.The parties will proceed to mediation within 60 days from the date of this decision and the Tribunal will provide expertise and assistance. The Tribunal may extend such timelines where it considers it necessary;b.The respective parties will nominate members of the mediation team from each side within 7 days from the date of this decision and share the names of the nominees with the Tribunal;c.Should the parties herein fail to agree the Tribunal shall proceed to determine the matter on merit;d.The matter shall be mentioned on 02/04/2024 at 2:30 pm virtually via a platform that will be shared with the parties ahead of time to confirm compliance and for further directions;e.Each party shall bear its own costs.

DATED AT NAIROBI THIS 26TH DAY OF MARCH, 2024GICHURU KIPLAGAT - PANEL CHAIRPERSONMARIA KIMANI - MEMBERGABRIEL OUKO - MEMBER