[2024] KESDT 818 (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 818 (KLR) (Civ) (25 June 2024) (Decision)

Neutral citation: [2024] KESDT 818 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Civil

Petition E054 of 2023

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

June 25, 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

Decision

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 that is known as Football Kenya Federation (FKF) Elgeyo Marakwet County Branch.

3. The 4th Respondent is the County Executive Committee member in charge of Sports in the Elgeyo Marakwet County.

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

5. The Petitioner’s team, Kapcherop Queens FC, was taking part in a tournament organized by the Respondents when the said team was disqualified from the tournament for fielding ineligible players.

6. The Petitioner approached the Tribunal in a Petition dated 5th December 2023 couched in a Certificate of Urgency and Motion Notice Application of even date seeking the following orders:-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.

7. The 1st, 2nd, 3rd and 4th Respondents at the first instance challenged the Petition vide a Preliminary Objection dated 15th December 2023.

8. The Preliminary Objection was dismissed by the Tribunal on 21st February 2024 with the Tribunal holding that it had jurisdiction to hear the matter as then framed and that the claim was not frivolous.

9. Consequently, noting that some of the prayers were spent, the Petitioner elected to amend the Statement of Claim. Leave was duly granted by the Tribunal to so do and in the Amended Statement of Claim dated 28th March 2024, the Petitioner sought the following orders:1. That the Tribunal awards costs incurred during the registration, camping, transport and accommodation/meals during the competition up to the point of disqualification.

2. That the costs of this application be provided as the Tribunal may deem it best.

10. The Respondent filed Grounds of Opposition to the amended statement of claim, stating inter alia:1. That the amended statement of claim is misconceived, bad in law and an abuse of court process as it raises new facts, prayers aimed at altering the course of action in this matter, contrary to Order 2 Rule 6 (1) of the Civil Procedure Rules.

2. That it is their legitimate expectation that the litigation should come to an end and allowing the amended claim prolongs the matter, contrary to the overriding objective of the Civil Procedure Act and the Judicial process as a whole.

3. That the amendments made by the petitioner are aimed at unjust enrichment as they lack sufficient proof and therefore defeating the efficient determination of the suit

4. That the amendments are made in bad faith and is grossly incompetent since there has been an inordinate and unexplained delay in making the same thus the petitioner is undeserving of the orders therein.

11. As part of the pre-trial conferencing, it was agreed that the matter need not have a full trial and that the parties agreed to rely on the pleadings and documents filed together with written submissions.

12. Whilst the issue of whether the Tribunal had jurisdiction to hear this matter had been settled through the dismissal of the Preliminary Objection, it did not settle the issue of whether or not liability had been proven and it was still incumbent on the Petitioner to prove the liability of the Respondents before the question of costs could be determined.

13. In effect, the third Ground of Opposition to the amended Claim was germane as it disputed whether or not the costs claimed were a form of unjust enrichment. The Tribunal is quick to point out that the other three Grounds of Opposition did not find much favour.

14. On the matter of whether the claim was bad in law and misconceived as per the Respondents Grounds of opposition, this Tribunal notes that it is a quasi judicial body that ranks as a subordinate court as per the provisions of Article 169. The Tribunal will not be a stickler for procedures and the burdens of how a matter is pleaded, the facts and prayers presented and in which form they are, and the strict adherence to the Civil Procedure Rules.

15. Under the provisions of Article 48 of the Constitution of Kenya on access to Justice, and as read with Article 159 (2)(d), it is expected that the Tribunal welcomes parties with sports related disputes and ensures that those disputes are resolved. Indeed, even before the enactment of the Sports Disputes Tribunal Rules, parties could still file letters as claims and the Tribunal would decipher what they were seeking. That position hasn’t changed.

16. Consequently, the delays that are mentioned in the Grounds of Opposition and the legitimate expectation that matters should come to an end are quite premature in the circumstances of this case that had to go through a Preliminary Objection first before being set down for the main hearing.

17. Having said this, we return to the use of liability and note that at the appellate stage, such as the Petition that the Petitioner has filed, the Tribunal is more concerned with the process that has been followed in arriving at the decision without necessarily re-opening the matter on the merits. This echoes the decision in Republic v District Land Adjudication and Settlement Officer Maara Sub- County & 3 others [2021] eKLR, where it was held that Judicial Review does not concern itself with the merits of the decision, but focuses on the process through which decisions were made.

18. The gravamen of the Petitioner’s conclusion that they did not get a fair hearing arises from the contention that 2019 Rules of the Football Kenya Federation (also ‘FKF Rules’), that were ostensibly used to throw out the Petitioner from the competition, had not been shared with the Petitioner and other participating teams prior to the competition.

19. Whilst these FKF Rules were not shared with the participating clubs, the Petitioner contended that they were used as the basis on which the breach had been occasioned when they were informed later that they had registered and fielded ineligible players. The Petitioner also contended that they were not given an opportunity to be heard before being disqualified from the competition.

20. To answer the Petitioner’s contention on sharing or the lack of it of the FKF Rules with the participating clubs, the Respondents produced a one-page document that constituted the Tournament Rules. The document included the timelines for the tournament and the requirement for the registration of members of the teams that were to be used in the tournament. There was a rider that there would be no reinforcements of the teams. Even more critically was the line that stated: FIFA/FKF Rules will be used.

21. The minutes of the meeting held on 3rd December 2023 also confirmed that the tournament was to be guided and regulated by FKF Rules.

22. The Petitioner indicated that he had been a coach who at one time was appointed by the Elgeyo Marakwet County Government to coach the county team in another competition. He also claims to have been scouting players and the same played in various leagues outside Elgeyo Marakwet. It is therefore expected that the Petitioner should be familiar with the FKF Rules, and the claim of having not been issued with the FKF Rules therefore does not suffice.

23. The Petitioner has also not alleged in the Claim or at all that not stated that he asked for the Rules and they were not shared. It is important that club officials also take their responsibilities quite seriously so that they do not jeopardize the efforts of the athletes whom they register for tournaments. Failing to obtain the Tournament Rules and all Regulations is dereliction of duties of club officials.

24. It will be remiss of the Tribunal not to also weigh in on the Responsibilities of Tournament Organizers. The Tribunal notes that it is imperative for everyone organizing a sporting tournament to share the Rules and all applicable Regulations with the participating teams. It is also the responsibility of the Tournament Organizers to also have all the participating teams acknowledge as having received the Rules and Regulations and to confirm that they would be bound by the same rules. This is part of the fulfilment of the fiduciary role that Tournament Organizers assume when they arrange competitions. It also makes it to easy to point out to any Team the specific Rules and Regulations that are being breached in the event of a dispute.

25. Moreover, it is expected that the verification of players is done before the specific tournament kicks off. Not doing so would lead to certain absurdities when the verification is done at the latter stages. In this instance, where the Petitioner’s team was deemed to have registered and fielded ineligible players, it is noteworthy that the same team had played and eliminated two teams at the Ward and Sub County Level. What then is the recourse for teams such as Kapcherop Starlets and/or Kapchebit Starlets eliminated by a team with ineligible players?

26. The failure to vet the teams at the earliest also constitutes serious dereliction of duties by the Tournament Organizers.

27. Having said so, the Tribunal has taken note of the detailed Minutes of the meeting that took place on 3rd December 2023 that deliberated the issue of the ineligibility of the players. As indicated earlier, the Tribunal will not get into the details of the investigations conducted by the Respondents. The Tribunal is satisfied that the Petitioner was given the right to be heard.

28. On being given an opportunity to be heard, the Tribunal notes that in the Minutes, Kapcherop Queens FC responded to Kaptbuk Starlets FC on the interpretation of the clause that required the player to present their original identity cards before play. This indicates that they had free will to speak and be heard.

29. Even so, the Tribunal does not overlook the fact that the minutes were dated 14th December 2023, whereas the petition was filed on 5th December 2023. This caution is necessary because the Minutes therefore took unduly long as they were forwarded after the Petition had already been filed. It is again once emphasizing that Tournament Organizers have an obligation to hear the disputes quickly and furnish decisions with their reasons promptly

30. The Tribunal generally notes that a process indeed took place, even though the written reasons for the decision were made late. For this reason, the Claim by the Petitioner against the Respondents fails on a balance of probabilities.

31. The Tribunal notes that even though the liability against the Respondents has not been proven, it is still important to make observations about the Claim for costs.

32. The Petitioner annexed various documents including receipts as part of costs that were incurred during the tournament. Some of the costs depicted show that preparation for the football tournaments is quite an expensive exercise.

33. Notably, amongst these travelling receipts were those issued by Kapsowar Shuttle Sacco Ltd. However, the Tribunal notes that the dating of the receipts was rather suspicious relative to the receipt numbers that are supposed to be sequential coming from the same source. The receipt numbers appear sequential as 14907, 14910, 14911 and 14912, with travelling dates as 3rd December 2023, 15th November 2023, 22nd November 2023 and 26th November 2023 respectively. This raises the question of whether no other travelling took place with the travelling company indicated on the receipts, and assuming that is the case, how is it that the receipt number 14907 was issued after receipt umber 14910?

34. In the case of Weetabix Limited V Healthy U Two Thousand Limited 2006, Ochieng’ J held that“The evidence of such a person, who places a "trap order" is to be received with a lot of caution because it cannot be said to be altogether free from suspicion. But at the same time, I would not go so far as to state, at this stage, that the said [name of witness] or the Plaintiff did set out to deliberately mislead the Court”.

35. Similarly, the Tribunal would not go so far as to state, in this Decision, that the Kapsowar Shuttle Sacco Ltd or the Petitioner did set out to deliberately mislead the Tribunal. In any event, the issue of expenses is a moot matter.

36. In conclusion, following the analysis of the issue and facts above, the Tribunal concludes that the Petition is hereby dismissed with no order as to costs.

DATED AND DELIVERED AT NAIROBI THIS 25THDAY OF JUNE, 2024________________________________ELYNAH SHIVEKA - PANEL CHAIRPERSON___________________________________PETER OCHIENG - MEMBER________________________________BENARD MURUNGA WAFULA - MEMBER