[2024] KESDT 136 (KLR)

Koilege (Suing as Chairman Kapcherop Queens FC) v Kaino (Suing as Chairman FKF Elgeyo Marakwet County) & 4 others (Petition E054 of 2023) [2024] KESDT 136 (KLR) (21 February 2024) (Ruling)

Neutral citation: [2024] KESDT 136 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Petition E054 of 2023

E.Sifuna-Shiveka, Chair, Peter Ochieng & Benard Murunga Wafula, Members

February 21, 2024

Between

Alfred Koilege (Suing As Chairman Kapcherop Queens Fc)

Petitioner

and

Boaz K Kaino (Suing As Chairman Fkf Elgeyo Marakwet County)

1st Respondent

Joseph K Limo (Sued as Secretary Fkf Elgeyo Marakwet County)

2nd Respondent

David K Chesinen (Sued as Treasurer FKF Elgeyo Marakwet County Branch)

3rd Respondent

Purity Koima (Sued as CEC Sports Elgeyo Marakwet County Government)

4th Respondent

Okm Foundation

5th Respondent

Ruling

(Preliminary Objection dated 15th December 2023)Appearances:Koilege (the Petitioner) in person;Mwenda instructed by Chrissy Mwenda Otieno Co. Advocates for the 1st, 2nd, 3rd and 4th Respondent.No appearance by the 5th Respondent 1. The Petitioner is the Chairman of Kapcherop Queens FC; a women’s football club.

2. The 1st, 2nd and 3rd Respondents are members of a football association Football Kenya Federation (FKF) Elgeyo Marakwet County Branch.

3. The 4th Respondent is the CEC Sports Elgeyo Marakwet County.

4. The 5th Respondent is a football tournament’s organizer and/or sponsors with objective of the tournament is to promote peaceful coexistence in the four counties of Turkana, Baringo, West Pokot and Elgeyo Marakwet.

5. The Petition dated 5th December 2023 couched in a Certificate of Urgency and Motion Notice Application of even date was lodged by the Petitioner and sought the following –1. That the application be certified urgent and that it be heard ex parte in the first instance, and service of the same be dispensed with.2. That the Tribunal issue an interim injunction restraining the 1st to the 5th Respondent, FKF employees and agents from proceeding with the Elgeyo Marakwet County Finals of the tournament which have been planned for Thursday 7th December 2023 until this case is heard and determined.3. That the Tribunal issue an order restraining Kapcherop Queens FC back into the competition.4. Costs of the application.

6. The 1st, 2nd, 3rd and 4th Respondents challenged the Application vide a Preliminary Objection dated 15th December 2023 on the grounds that –1. This Honourable Court is divested of jurisdiction since the Petition and Instant Application has been instituted contrary to Chapter 10. 2, Chapter 10. 2.3, Chapter 10. 2.6 and Chapter 10. 3 of the Football Kenya Federation Rules and Regulations governing Kenyan Football (2019).2. The Petition and Application is frivolous. Instituted as an afterthought and abuse of this Honourable Court’s process whereas there are other remedies put in place to address the Petitioners grievances.

7. In the end, the 1st to the 4th Respondents prayed that the Honourable Tribunal dismisses the suit.

8. The 5th Respondent neither entered appearance nor responded to the Petition or Application.

9. The Application was set down for hearing on the 7th February 2024 wherein the Parties dispensed with the Application via oral submissions. In summary, it was the Petitioner’s submission that the Honourable Tribunal is clothed with the requisite jurisdiction whilst the 1st, 2nd, 3rd and 4th Respondents contested the jurisdiction.

10. Having considered the Parties’ pleadings and submissions, the Tribunal has framed the singular issue for determination:“Whether the Preliminary Objection dated 15th December 2023 by the 1st to 4th Respondents is sustainable.”

11. A preliminary objection as was defined in Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA 696 refers to 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.

12. For a ground raised as a preliminary objection to be sustainable, a tripartite test has to be satisfied.a.Firstly, the ground must be on a pure point of law.b.Secondly, the assumption must be that all facts pleaded by the other side are correct.c.Thirdly, it cannot be raised if any fact has to be ascertained or what is sought is the exercise of judicial discretion.

13. A pure point of law is one which finds its basis in law and/or interpretation of the law. Simply, a question on a point of law will find its answer by resorting to the sources of law. In the instant case, the Respondents posit that the Tribunal is divested of jurisdiction whereas the Petitioner maintains that the contrary is true. It is therefore necessary for this Tribunal to satisfy itself as to its jurisdiction to entertain the matter.

14. It is trite law that jurisdiction is the bedrock of any decision-making body. This position was been reiterated in the celebrated case of Owners of Motor Vessel “Lillian ‘S’ v Caltex Kenya Limited [1989] KLR 1 wherein the Court held that –“Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of Law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

15. Jurisdiction is informed by the Constitution or legislation as was espoused in Samuel Kamau Macharia v Kenya Commercial Bank and 2 Others the Supreme Court espoused as follows –‘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.’

16. Section 58 and 59 of the Sports Act, command itself to memory whenever this Honourable Tribunal’s jurisdiction is called to question. The same states:Section 58 – Jurisdiction of the TribunalThe 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; andc.Appeals from decisions of the Registrar under this Act.

17. This Section is not read in isolation with the other Sections of the law which also concurrently require that Constitutions of the sports organizations have dispute resolution mechanisms which end up with the Tribunal as an arbitrator. In essence, the Respondents plead that the matter was not ripe for the Tribunal at this instance.

18. If one was to consider if this was a pure point of law, then Section 58 of the Sports Act as read with the Section 46 of the Sports Act and schedule 2 of the Sports Act is what constitutes law which is then mixed up with the Constitution of the Football Kenya Federation which is not law.

19. The Respondents have not demonstrated that this internal document exists and that it is binding on the Petitioner and indeed all the clubs that took part in the tournament. By choosing not to file any document before the Tribunal, the Respondents resorted to giving evidence from the Bar which is deprecated and in any event strayed away from the holding in Mukisa Biscuits about pure points of law and uncontested facts.

20. The Respondents having not filed any evidence could therefore not even indicate how the internal dispute resolution was handled and attempted to explain that the Petitioner was given an opportunity to be heard – a fact that was contested by the Petitioner. It then calls into question whether what we have before us is a Preliminary Objection in the sense of what a Preliminary objection covers.

21. It is also necessary for us to state that mere claims that there is an internal dispute resolution mechanism is not always a bar to a superior remedy especially where the alternate remedy that is touted by a person claiming non exhaustion of the remedy has no evidence to support the same. There are certain reliefs that a Petitioner may wish to obtain such as Injunctive Relief as demonstrated under paragraph 5(2) of this Decision where the Petitioner sought such orders that haven’t been demonstrated to haven been a remedy under the Football Kenya Federation constitution or the Rules Governing Kenyan football.

22. The Tribunal is alive to the fact that at times parties may seek interim measures of reliefs such as the stopping of a tournament and it would be imprudent to do so at a body that doesn’t offer the same injunctive relief or whose orders are not binding as they have no force of authority such as the orders of the Tribunal.

23. In any event, the Tribunal is guided by the pleadings filed by the parties. In the absence of the Respondent refuting the assertions by the Petitioner the Tribunal is left to infer that the pleaded facts by the Petitioner are ratified as true accounts by the Respondent. This inference is however arrived at with an abundance of caution and understanding that the weight to be attached to it should be on a preponderance of evidence and/or balance of probabilities.

24. Lastly, on the third limb, a preliminary objection cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion; the Respondent, has challenged the Tribunal’s jurisdiction stating that the same is divested subject to Chapter10. 2.3, Chapter 10. 2.6 and Chapter 10. 3 of the Football Kenya Federation Rules and Regulations. This ground by its very nature would require the Tribunal to peruse the cited provisions, which in this case were not made available to it. It then follows that this Tribunal stands disadvantaged and would only satisfy itself as to the Respondent’s position by calling in aid evidence to ascertain its correctness; which action ousts the Preliminary Objection from being a pure point of law and instead a point of fact.

25. Whereas the Tribunal is well aware of the Judicial Notice that can placed on documents of notoriety, it is improper for a party to do the minimal of filing a Preliminary Objection and calling on the tribunal to make inferences. In our view and in light of the above, the first ground of the Preliminary Objection fails.

26. The second ground to the Preliminary Objection seems to challenge the Petition and Application on the basis of it being frivolous, raised as an afterthought and an abuse of the Honourable Court’s process. Respectfully, we do not consider the ground as a point of law, whereas it would be a befitting ground for Grounds of Opposition it is not sustainable as a Preliminary Objection.

27. It is not lost on this Tribunal that prudence dictates that where internal structures are established to resolve disputes, they are utilized before the dispute is escalated to other mechanisms including this Tribunal. However, we wish to reiterate, that the utilization of such mechanisms is a rule of discretion and not compulsion, especially where such structures would not afford the litigant an effective remedy or such structures are not clearly defined. Further, the existence of internal remedies is not a bar to pursue superior remedies.

28. Accordingly, having reached the conclusion that it has, the Tribunal orders –1. The Preliminary Objection is hereby dismissed.2. The costs of the Preliminary Objection are awarded to the Petitioner.3. The matter to be listed for the hearing of the main application and the determination of the issue of costs of the matter noting that some of the orders sought may have been overtaken by events.

DATED AND DELIVERED AT NAIROBI THIS 21ST DAY OF FEBRUARY, 2024. ...............ELYNAH SHIVEKA - PANEL CHAIRPERSONPETER OCHIENG - MEMBERBENARD MURUNGA WAFULA - MEMBER