[2023] KESDT 35 (KLR)

Kipyegon & another v Football Kenya Federation & another (Tribunal Case E002 of 2023) [2023] KESDT 35 (KLR) (28 February 2023) (Decision)

Neutral citation: [2023] KESDT 35 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Tribunal Case E002 of 2023

John M Ohaga, Chair, J Njeri Onyango & A.M Owinyi, Members

February 28, 2023

Between

Isaac Kipyegon

1st Appellant

Michael Idovolo Madoya

2nd Appellant

and

Football Kenya Federation

1st Respondent

General Secretary / CEO Football Kenya Federation

2nd Respondent

Decision

The Parties 1. The Appellants are football players who play professional football and participate in the Football Kenya Federation League.

2. The 1st Respondent is Football Kenya Federation (hereinafter ‘FKF’) a national sports organization responsible for managing and running the FKF National League. The 2nd Respondent is the General Secretary/Chief Executive Officer of FKF.

The Claim 3. The Claim is as set out in the Memorandum of Appeal dated 16th January 2023 and lodged at the Tribunal on 17th January 2023. The Appeal is against the Respondents decision issued via a press statement on the provisional suspension of individuals involved in match fixing and sought several orders as set out in the Memorandum of Appeal.

Preliminaries 4. When the matter first came up on 17th January 2023, the Chairman of the Tribunal issued interim orders. The Tribunal granted an interim order of injunction staying the decision by the Football Kenya Federation communicated vide a press release letter dated 13th January 2023 to suspend the 1st and 2nd Applicants pending the full hearing and determination of the Application. Further the Tribunal directed that the Application be served upon the Respondents immediately and in any event before close of day on Friday 20th January, 2023.

5. On 24th January 2023, the matter came up for mention the Respondents filed a Notice of Appointment of Advocates and a Notice of Preliminary Objection dated 24th January 2023 in which they challenged the jurisdiction of the Tribunal to hear and determine the Appeal. The Appellants were granted seven (7) days to file and serve submissions to the Preliminary Objection. The Respondents were granted seven (7) days to file and serve submissions in response to the Appellants Submissions from the date of service. The interim orders were extended.

6. On 7th of February 2023, the matter came up for mention to confirm filing of submissions. The Respondents undertook to put in their list of authorities by Friday 10th February 2023 and the matter was listed for highlighting of submissions on 14th February 2023.

7. On 14th February 2023, the Tribunal heard oral arguments by the parties.

The Preliminary Objection 8. The Preliminary Objection is as to the jurisdiction of the Tribunal to hear and determine the dispute set out in the Appeal. The objection is in the following terms:The Respondents hereby raise a preliminary objection for consideration and for the striking out of this Appeal, at the first instance on the ground that this Honourable Tribunal lacks the requisite jurisdiction to entertain this Appeal & Motion.

The Respondent’s Arguments 9. In their submissions dated 31st January 2023, the Respondents stated that provisional suspension is a temporary measure to protect the integrity of the game and is to last pending investigations into the matter by the FIFA and FKF’s Integrity Department.

10. Further the Respondent stated that the Football Kenya Federation (FKF) Constitution,2017 provided for the imposition of provisional suspension in line with Article 2(f) which provides that one of the many objectives of the Federation is “to promote integrity, ethics and fair play with a view to preventing all methods or practices such as corruption, doping or match manipulation, which might jeopardise the integrity of matches, competitions, players, officials or members to give rise to the abuse of Association Football, futsal or beach soccer.

11. The Respondents asserted that imposition of a provisional suspension is envisaged and provided for under the FKF Anti-Match Manipulation Regulations, 2016 (the regulations) which regulations as provided in Part III Rule 1 apply to and are binding upon FKF officials or Committee members, Players, clubs, coaches, officials and or other support personnel, referees and or any other match officials officiating at the event, members of local host organizing committees, FKF employees or contractors and FKF members.

12. The Respondents placed reliance on Part X and XI of the Regulations and submitted that provisional suspension is not a finding on culpability or guilt of the recipient/subject but a temporary measure pending the commencement of a hearing where the recipient/ subject is afforded an opportunity to respond to charges that may be levelled upon him/her should the FKF Integrity Department decide to refer the matter to hearing before the FKF Disciplinary Committee.

13. Further, the Respondents stated that as per Part XIX Rule 1 of the Regulations any person aggrieved by a decision, suspension or any other sanction meted upon him or her in respect of under the FKF Anti Match Manipulation Regulations, 2016 is entitled to lodge an Appeal to the FKF Appeals Committee established under Article 67(2) of the FKF Constitution for redress.

14. The Respondents further submitted that the Tribunal’s Jurisdiction is purely appellate save in circumstances where all the parties to the dispute agree to refer to the Tribunal and that the Tribunal agrees to hear the dispute as a dispute as provided in Section 58(b) of the Sports Act, 2013.

15. The Respondents cited various authorities including the decision of the Court of Appeal inGeoffrey Muthinja & another v Samuel Muguna Henry& otherswhere the Court stated: ‘‘It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the court is invoked…’’ ‘‘…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.’’

16. In conclusion, the Respondents urged the Tribunal to dismiss the Appeal in liminie as it is in inimical of the clear dispute resolution mechanisms enacted by members of the FKF through the Regulations.

The Appellants’ Submissions 17. In their submissions dated 6th February 2023, the Appellants raised the following issues for determination:i.Whether the Preliminary Objection raises pure points of law or touches on disputed facts.ii.Whether the Honourable Tribunal has jurisdiction.iii.Whether the Appellant/Applicants ought to have explored internal disputes resolution mechanisms first.iv.Who is entitled to costs.

18. On the first issue, the Appellants submitted that in considering whether to allow or dismiss the Preliminary Objection, the Tribunal ought to consider whether the issues raised are pure points of law.

19. The Appellants asserted that the Preliminary Objection raises matters that require the Tribunal to call in aid evidence to ascertain the same hence ousting the Preliminary Objection from being a pure point of law. The Appellants submitted that the Respondents averments call upon the Tribunal to inquire as to who indeed made the decision (is it the Disciplinary Committee, or the Integrity Department, or the FKF itself through its Secretary General) and whether the decision is void and or nullity ab initio having been made by a different entity among other issues. The Appellants averred that the Respondent vide the pleadings filed automatically necessitate investigation to establish the truth and thus the Appeal cannot be dispensed with preliminarily.

20. On the second issue, the Appellants submitted that the Tribunal derives its jurisdiction from Section 58 of the Sports Act, 2013. They state that the decision to suspend the Appellants was omnibus, vague and ambiguous as it was not reached by either the FKF integrity Department, Disciplinary Committee or the Appeals Committee but by the Apex Body and communicated by the Chief Executive Officer.

21. On the third issue, the Appellants submitted that it is indeed settled as it is trite that parties must exhaust any alternative dispute resolution mechanism before embarking on a Court process. However, citing various authorities the Appellants averred that there are pronounced exceptions to this doctrine of exhaustion. In particular, the Appellants averred that two exceptions apply in the instant case.

22. First, that based on the circumstances facing the Appellants the exhaustion mechanism would not serve the values enshrined in the Constitution , the Appellants having been adjudged unheard and the very constitutional rights infringed. In support of their averment the Appellants placed reliance on the case of Deepak Lalchand Nichani v Kenya Revenue Authority & another [2021] eKLR where the Court held “…Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere "bootstraps" or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the Court…”

23. Second, they relied on the consideration of the suitability of the Appeal mechanism available in the context of the particular case. They averred that the Respondents are the complainants, accusers, investigators and the ones meting out punishment confidentially without reference to the Appellants. They relied on the Court’s decision in Civil Appeal 158 of 201Z Fleur Investments Limited v Commissioner of Domestic Taxes & another[2018]eKLR,where the Court stated “... the Court cannot, being a bastion of Justice, sit back and watch such institutions ride roughshod on the rights of citizens who seek refuge under the Constitution and other legislations for protection,”

24. The Appellants submitted that the Respondents and its organs cannot be a proper independent and impartial dispute resolution forum and urged the Tribunal not to sit and watch as the constitutional rights of the Appellant are infringed whereas it is clothed with that jurisdiction to hear and determine their appeal under Section 58 of the Sports Act, 2013.

25. On the fourth issue, the Appellants submitted that as a general rule, party who comes to court to enforce a legal right is entitled to costs unless there has been misconduct on its part. The Appellants prayed that the Tribunal grant them the costs of the preliminary objection.

Jurisdiction 26. The starting point must be to acknowledge that the Tribunal is a creature of statute and must derive its jurisdiction from the Sports Act, 2013. This position has been established by the Supreme Court inSamuel Kamau Macharia v Kenya Commercial Bank Limited & 2others, where it was stated that: ‘A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.’

27. Without a doubt, the present matter falls under Section 58 (a) of the Sports Act which provides as follows:Section 58 of the Sports Act, 2013 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.”

Discussion 28. The Appellants in their submission on this issue have dwelt at length on the subject of the Preliminary Objection raising certain factual matters that require the Tribunal to ascertain. They have made reference to several cases and precedents on the subject including the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd(1969)EA 696 where the court held: "…So far as I'm 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. It is the contention of the Appellants that a Preliminary Objection cannot therefore be raised if any fact requires to be ascertained and that the Tribunal should dismiss it as it is incurably bad and defective since it requires the tribunal to ascertain certain factual evidences as alleged by both parties.

30. Specifically, the Appellants argue that the Preliminary Objection invites the Tribunal to inquire as to who indeed made the decision on provisional suspension of the Appellants. The Appellants submit that while on one hand a decision has been made on the face of it from the FKF Secretary General, no proof has been adduced on which committee made the decision. In fact, from the press release it would seem the decision was made by the FKF Apex body. The Respondents submissions however introduces FKF Integrity Department and the Disciplinary Committee, wherein at paragraphs 1-4 of their submissions factual claims are submitted of the decision and justification thereof.

31. The Respondents at the highlighting of submissions in its response to the Appellants’ submission on this matter approached the subject with equal zeal in its attempt to justify why the preliminary objection should not be dismissed for the reasons advanced by the Respondent.

32. The nature of preliminary objections was discussed in Civil Suit No. 85 of 1992, Oraro v Mbaja [2005] 1 KLR 141, where Ojwang J, as he then was, cited with approval the position in Mukisa Biscuit v West End Distributors and stated as follows on the operation of preliminary objection: - “…. I think the principle is abundantly clear a “preliminary objection”, correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed.”

33. The Preliminary Objection dated 24th January 2023, raises one main issue the jurisdiction of this Tribunal which is capable of terminating this Appeal if allowed.

34. The question whether jurisdiction is a point of law was set out clearly by the Supreme Court in Mary Wambui Munene v. Peter Gichuki Kingara and Six Others, [2014] eKLR, when the Learned Judges stated that ‘jurisdiction is a pure question of law’.

35. It is therefore, critical for this Tribunal to ascertain that the preliminary objection is not caught up within the realm of factual issues that would necessitate the calling of evidence.

36. It is not in dispute that the Press Statement issued on 13th January 2023 on the Provisional Suspension of Individuals involved in match fixing states the provisional suspension was done by the Football Federation of Kenya pending investigation of the matter by the FIFA & FKF’s Integrity Department.

37. Part VII of the Regulations on Investigations provides:VII.Investigations1. If FKF receives a report or information that an affected individual has allegedly contravened these Regulations including, by engaging in actual or suspected prohibited conduct, the FKF Chief Executive Officer must, as soon as is reasonably practicable refer that report or information including any documentary or other evidence that may be provided in the report to the FKF Integrity Department for the commencement of the initial investigations through the FKF Integrity Officer.2. If upon reviewing the report or information and all relevant documentation and/or interviewing the relevant witnesses, if any, the FKF Chief Executive Officer is of the opinion that there are reasonable grounds to believe that a prohibited conduct may have been committed, the FKF Chief Executive Officer may, before FKF Integrity Department commences or concludes investigations and/or refers the matter to a hearing before the FKF Disciplinary Committee or a panel thereof, and pending commencement and/or conclusion of the said investigations and or determination by the hearing panel, issue a provisional suspension against the alleged offender prohibiting the alleged offender from participating in any FKF competitions or sanctioned events until such time as the investigations and/or hearing has been concluded so as to protect the integrity of the FKF competitions and sanctioned events.3. Additionally, the FKF Chief Executive Officer may direct all members of FKF to avoid any form of sporting contact with the alleged offender in the intervening period and/or until the matter is heard resolved.4. If the FKF Integrity Department has received a report from the FKF Chief Executive Officer above referenced and/or has commenced and/or concluded investigations thereon and before it has referred a matter to the FKF Disciplinary Committee, the FKF Integrity Department through the FKF Integrity Officer may also, in its discretion and pending determination by the Hearing Panel, suspend the alleged offender from any future FKF competitions or sanctioned events until such time as the hearing has been concluded and a motivated decision rendered.5. If an active player is under suspension, the investigation, the hearing and any subsequent appeals shall be completed before the end of the next one full season of the FKF competition or sanctioned event that the affected individual is eligible to participate in.6. Nothing in this section will prevent the FKF NEC or the FKF Chief Executive Officer from enforcing any other Rules and Regulations or referring any prohibited conduct to FIFA, CAFand CECAFA or any other a relevant law enforcement agency.

38. It is thus not in dispute who made the decision as the Press Statement clearly states that the Federation has suspended the individuals pending investigations which decision is within the confines of Part VII of the regulations.

39. Further, it is not in dispute that the decision was communicated the Chief Executive Officer/FKF General Secretary.

40. Article 63 of the FKF Constitution provides that:Article 63. The General Secretary1. The General Secretary id the Chief Executive of the General Secretariat.2. He shall be appointed on the basis of an agreement governed by private law and a shall have the necessary professional qualifications and experience.3. He shall be responsible for:a.implementing the decisions passed by the General Assembly and National Executive Committee in Compliance with the President’s directives;b.attending the General Assemblyc.organizing the General Assembly and meetings of the National Executive Committee and other bodies;d.compiling minutes for the meetings of the General Assemblye.managing and keeping the accounts of FKF properlyf.the correspondence of FKF in particular, for relations with the Members, Committees, FIFA and CAF

41. The General Secretary has the mandate to convey correspondence of the Football Kenya Federation.

42. The Respondent have submitted that the Tribunal lacks jurisdiction as the jurisdiction granted to the Tribunal by the Sports Act, 2013 is purely appellate save for the only instance under section 58(b) which grants the Respondent jurisdiction to hear other sports-related disputes that all parties to the dispute agree to refer to the Tribunal and that the Tribunal agrees to hear as a dispute resolution forum of first instance. They aver that no such agreements have been executed by the parties herein.

43. It is the Respondents contention that if the Tribunal admits this Appeal and proceeds to entertain it on merit, it would be inimical of the clear dispute resolution mechanisms. They state that the Regulations provide various dispute resolution forum as provided in in Part X and XI of the FKF Anti -Match Manipulation Regulations, 2016.

44. The Appellants have vehemently opposed this position stating that the decision of suspension was made by the Apex body of the 1st Respondents and communicated by the General Secretary/Chief Executive Officer. They aver that the decision is vague and ambiguous as it was not reached by either the FKF Integrity Department, Disciplinary Committee or the Appeals Committee as provided by the FKF Constitution and that the decision is omnibus and communicated through a press release. The Appellants have submitted that the dispute resolution forum is not proper, independent and impartial.

45. The Tribunal reiterates the position of the Court of Appeal in Geoffrey Muthiga Kabiru & 2 others – vs- Samuel Munga Henry & 1756 others [2015]eKLR, where the Court of Appeal stated that: “It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews...” “…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution ....”

46. The Press Statement is on provisional suspension of individuals involved in match fixing pending the investigation by FIFA and FKF’s Integrity Department.

47. The FKF Anti-Match Manipulation Regulations, 2016 provide as follows:VII.Investigations1. If FKF receives a report or information that an affected individual has allegedly contravened these Regulations including, by engaging in actual or suspected prohibited conduct, the FKF Chief Executive Officer must, as soon as is reasonably practicable refer that report or information including any documentary or other evidence that may be provided in the report to the FKF Integrity Department for the commencement of the initial investigations through the FKF Integrity Officer.2. If upon reviewing the report or information and all relevant documentation and/or interviewing the relevant witnesses, if any, the FKF Chief Executive Officer is of the opinion that there are reasonable grounds to believe that a prohibited conduct may have been committed, the FKF Chief Executive Officer may, before FKF Integrity Department commences or concludes investigations and/or refers the matter to a hearing before the FKF Disciplinary Committee or a panel thereof, and pending commencement and/or conclusion of the said investigations and or determination by the hearing panel, issue a provisional suspension against the alleged offender prohibiting the alleged offender from participating in any FKF competitions or sanctioned events until such time as the investigations and/or hearing has been concluded so as to protect the integrity of the FKF competitions and sanctioned events.3. Additionally, the FKF Chief Executive Officer may direct all members of FKF to avoid any form of sporting contact with the alleged offender in the intervening period and/or until the matter is heard resolved. Disciplinary Committee, the FKF Integrity Department through the FKF Integrity Officer may also, in its discretion and pending determination by the Hearing Panel, suspend the alleged offender from any future FKF competitions or sanctioned events until such time as the hearing has been concluded and a motivated decision rendered.4. If the FKF Integrity Department has received a report from the FKF Chief Executive Officer above referenced and/or has commenced and/or concluded investigations thereon and before it has referred a matter to the FKF its discretion and pending determination by the Hearing Panel, suspend the alleged offender from any future FKF competitions or sanctioned events until such time as the hearing has been concluded and a motivated decision rendered.5. If an active player is under suspension, the investigation, the hearing and any subsequent appeals shall be completed before the end of the next one full season of the FKF competition or sanctioned event that the affected individual is eligible to participate in.6. Nothing in this section will prevent the FKF NEC or the FKF Chief Executive Officer from enforcing any other Rules and Regulations or referring any prohibited conduct to FIFA, CAF and CECAFAor any other a relevant law enforcement agency.7. Provided that, all proceedings under these Regulations must cease if the local law enforcement agency is of the opinion that further action by FKF under these Regulations may prejudice any actual or potential criminal prosecution against an alleged offender.8. Subject to any delays caused by having to complete the criminal process first, all investigations under these Regulations must be completed within ninety (90) days. The time taken to complete the criminal investigations and the disposition of any criminal charges shall not be included when calculating the ninety (90) days’ time frame.9. The ninety (90) days’ time period for completing an investigation can be extended or abridged upon a motion to the FKF Disciplinary Committee or its panel thereof. If such a motion is granted the FKF Disciplinary Committee or its panel thereof shall render a reasoned ruling thereof.X.Pre - hearing Procedures1. If the FKF Integrity Department decides to refer a matter to a hearing, The FKF CEO shall: -i)On the advice of FKF NEC, appoint a Prosecutor;ii)Contact the Chairman of the FKF Disciplinary Committee to request that a panel of at least three (3) of its members be convened to hear the case;iii)On the advice of the Prosecutor, serve upon the alleged offender a Charge Sheet which shall:a)state briefly the nature of the alleged commission of a prohibited conduct;b)specify the provision(s) of these Regulations alleged to have been contravened; andc)enclose copies of information, documents or aby other material referred to in the Charge.iv)On the advice of the Chairman of the FKF Disciplinary Committee issue a notice of hearing to the parties which sets out the time and venue of the hearing.2. The date for the hearing must be no more than ninety (90) days after the notice of hearing is issued.3. Once the prosecutor is appointed, the prosecutor shall review the investigation report prepared by the FKF Integrity Department and: -i)The Prosecutor is required to disclose all evidence that shall be relied upon to prosecute the alleged offender;ii)If the Alleged Offender has concerns regarding the sufficiency of the disclosure, the alleged offender may make an application to the FKF Disciplinary Committee panel hearing the case seeking an order that sufficient disclosure be made.iii)Such an application shall be brought, if required, within seven (7) days of receiving the disclosure package from the prosecutor.iv)This time period may be extended or abridged at the discretion of the panel hearing the case.v)The prosecutor shall charge the alleged offender once he has formed the opinion that reasonable grounds and sufficient evidence exist to sustain a charge under these Regulations.4. At the direction of the Chairman of the FKF Disciplinary Committee, the parties may be required to attend a pre - hearing conference in an attempt to narrow down the issues to be determined during the hearing, to determine if the outstanding matters can be resolved amicably and or to discuss any other issues which will assist both the parties and the panel in a timely and effective disposal of the matter.5. If the prosecutor, in consultation with the FKF General Secretary, the FKF integrity officer, and the alleged offender are able to have a plea bargain resulting in a plea agreement, such plea agreement shall be presented to the panel of the FKF Disciplinary Committee scheduled to decide the complaint for consideration and adoption if the plea agreement does not derogate the enforcement of these Regulations.6. The alleged offender shall file a reply to the charge within seven (7) days of service of the charge and shall at the same time serve the same upon the prosecutor by e-mail (or as directed by the FKF Disciplinary Committee) but in any event, not later than seven (7) days of the filing of the Reply to the charge which admits or denies each charge entirely or in part.7. The reply to the charge must also include:i)a clear explanation of the nature and extent of the alleged offender ‘s admission or denial of the charge(s) or any part of a charge;ii)a signed written statement of each witness the alleged offender intends to call in his defence;iii)copies of any documents, evidence, mitigation or other relevant material (of whatever nature) upon which the alleged offender intends to rely for defence.8. An alleged offender may apply for extension of time to file a reply to the charge and such an application may be granted if it is grounded upon reasonable and legitimate grounds but in any event, not more than seven 7 days may be granted.9. Where the alleged offender fails to file and serve a reply to the charge within the stipulated time, the FKF Disciplinary Committee shall determine the charge in such manner and upon such evidence as the prosecutor may present.XI.Hearings1. All “viva – voce” hearings under these Regulations may either take place in person or by video conference. The FKF Disciplinary Committee may also conduct any hearing or any part thereof in writing without listening to parties orally as it may deem fit to do so.2. All of the hearings conducted under these Regulations are to be presided over by a minimum of three (3) members of the FKF Disciplinary Committee.3. The following individuals will have standing to appear at the hearing and where applicable examine and cross-examine witnesses and make opening and closing statements:i)The prosecutor appointed by FKF; andii)The alleged offender who may be represented by legal counsel.4. All of the evidence given at the hearing shall be recorded.5. The actual costs of producing a transcript of proceedings for any appeal will be paid for by the alleged offender.6. At the commencement of the hearing, the alleged offender shall enter a plea to all of the charges, personally or through his legal counsel.7. The hearing will be divided into two phases: the liability phase and the penalty phase.8. During the liability phase of the hearing, the prosecution will present its case first. In case of “viva – voce” hearing, the case will consist of an opening statement and the examination in chief by the prosecutor of each witness, cross examination by the respondent and re-examination by the prosecution.9. If an accused person has been previously found guilty of a criminal offense arising out of the same incident which forms the basis for the hearing, evidence of the conviction is automatically admissible for the truth of its contents at the hearing without any further proof of the conviction being required.10. After the prosecution’s case is concluded, the alleged offender or with the assistance of legal counsel will, in case of “viva – voce” hearing, lead evidence on behalf of the alleged offender. The respondent’s case presentation will consist of an opening statement and the examination in chief by the respondent, cross examination by the prosecutor and re-examination by the respondent.11. Both the complainant and the alleged offender are competent to testify as witnesses at the hearing and can be compelled to attend by the FKF Disciplinary Committee. Evidence presented by any witness at the hearing or documents submitted as evidence at the hearing by any party may be used by FKF for investigation of any other contraventions of these Regulations.12. After all of the evidence has been presented, each party will be given an opportunity to make closing arguments. The prosecution shall proceed first, followed by the alleged offender or his legal counsel. The prosecution will have the right to make a rejoinder to address any new issues that have been raised by the alleged offender for the first time in his/her closing argument.13. Upon conclusion of the closing arguments, the FKF Disciplinary Committee panel presiding over the mater shall adjourn the proceedings to render determine whether the charges have been proven and render its motivated decision on a date to be communicated to the parties.14. If the charges have not been proven, the matter is concluded. If the charges have been proven, the matter will proceed to the penalty phase.15. At the penalty phase, the parties will re-attend before the same panel of the FKF Disciplinary Committee who rendered their decision at the liability phase of the hearing. Evidence, if any, during the penalty phase will be presented in the same fashion as it was during the liability phase of the proceeding.16. At the conclusion of the penalty phase of the hearing, the members of the FKF Disciplinary Committee who have heard the evidence will render a decision in the same manner as they did in the liability phase.XIX.Appeals1. Any decision made under these Regulations is appealable to the FKF Appeals Committee.2. The FKF Appeals Committee is competent to decide appeals against any of the FKF Disciplinary Committee’s decisions.3. The FKF Appeals Committee is also competent to decide appeals against decisions of the FKF Ethics Committee.4. Any party intending to lodge an appeal must inform the FKF Appeals Committee of its intention to appeal in writing within three (3) days of notification of the grounds of the decision. The appellant must file, in writing, his appeal brief within seven (7) days of the FKF Disciplinary Committee’s decision.5. A motivated decision shall be rendered by the Appeals Committee within thirty (30) of appeal being filed.6. The appeal fee is Kshs. 100,000/- to be paid at the time of submission of the appeal brief.7. The appeal is not admissible if any of the above-mentioned requirements have not been complied with.8. When the appeal is argued, the party who has appealed the decision of the FKF Disciplinary Committee shall proceed first to present its arguments is support of the appeal. The respondent will then have an opportunity to present its argument with the appellant having an opportunity to reply.9. Neither party may adduce any new evidence on appeal unless they can demonstrate that the new evidence was not available at the time of the hearing before the FKF Disciplinary Committee even through the exercise of reasonable diligence.

48. Article 67 of the Football Kenya Federation Constitution, 2017 establishes the Appeals Committee. It provides:Article 67: Appeals Committee1. The functions of the Appeals Committee shall be governed by the Disciplinary Code of the FKF and the Code of Ethics of FKF. The Appeals Committee shall pass decisions only when at least three members are present. In certain circumstances, as specified in the relevant regulations, the chairman may rule alone.2. The Appeals Committee is responsible for hearing appeals against all decisions determined by all committees.

49. The Tribunal is persuaded by its decision in Petition No. 25 of 2016, Peter Omwando versus Football Kenya Federation, where the Tribunal expressed itself as follows: ‘The Tribunal has declared severally its strong preference for sporting organizations to resolve their disputes within local structures first before approaching this Tribunal.’

Decision 50. It is, therefore, this Tribunal’s finding that the Preliminary Objection passes the propriety test, and the objection is for consideration.

51. The Regulations envision a dispute resolution procedure to be followed from investigation, pre-hearing, hearing and appeals.

52. Upon considering the parties submissions, the Tribunal has concluded that the avenues of dispute resolution under the FKF Constitution and the FKF Anti-Match Manipulation Regulations, 2016 have not been exhausted by the Appellants.

53. The Appellants contended that the exceptions to the exhaustion doctrine are applicable in the instant case. In particular they contend that there has been malice, capriciousness and disrespect of the Constitution and the rules of natural justice and the Appellants adjudged unheard. Further they contend that the decision was made with finality leaving the Appellants with no dispute resolution body to approach.

54. This Tribunal is persuaded that where the adequacy and availability of the internal mechanism is deemed wanting this creates an exceptional case that allows the Tribunal to intervene.

55. As was aptly captured by the High Court in Krystalline Salt Limited v Kenya Revenue Authority (2019)eKLRwhere it was held that:"What constitutes exceptional circumstances depends on the facts and circumstances of the case and the nature of the administrative action at issue. Thus, where an internal remedy would not be effective and/ or where its pursuit would be futile, a court may permit a litigant to approach the court directly. So too where an internal appellate tribunal has developed a rigid policy which renders exhaustion futile.’’

56. Since the main ground for the Appeal is the provisional suspension of individuals allegedly involved in match fixing as put forth by the Appellants then the Appellants had to, in the first instance, submit to the process laid down under the FKF Anti-Match Manipulation Regulations, 2016. Alternatively, the Appellants had to satisfy this Tribunal why complying with the process laid out in the FKF Anti-Match Manipulation Regulations, 2016 would not be appropriate. Unfortunately, the Appellants have failed to undertake any of the two.

57. The investigations by the FKF’s Integrity Department are yet to be concluded and decision on subsequent proceedings made.

58. In light of the foregoing, a consideration of the Appeal would not yield any meaningful results to the Appellants. This Tribunal has only one option available, and it is to down its tools.

Conclusion 59. Accordingly, the Preliminary Objection is hereby upheld. We find that the Memorandum of Appeal dated 13th January 2023, is not merited and the same is hereby struck out with no order as to costs.

DATED THIS 28 TH DAY OF FEBRUARY 2023. Signed:JOHN M OHAGA SC, CArb, FCIArb.........CHAIRPERSONJ NJERI ONYANGO, FCIArb, ..........MEMBERALLAN MOLA OWINYI,................ MEMBERAppearances: Mr. Desmond Davis Otwal instructed by Otwal & Manwa Associates Advocates, Advocates for the AppellantsMr. Vincent Olala holding brief for Victor Omwebu instructed by Litoro & Omwebu Advocates, Advocates for the Respondent