[2024] KESDT 288 (KLR)

Maina v KCB Football Club (Tribunal Case E033 of 2023) [2024] KESDT 288 (KLR) (Civ) (19 March 2024) (Decision)

Neutral citation: [2024] KESDT 288 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Civil

Tribunal Case E033 of 2023

A.M Owinyi, Chair, MN Kimani & Gabriel Ouko, Members

March 19, 2024

Between

Erick Kinuthia Maina

Claimant

and

KCB Football Club

Respondent

Decision

Appearances: Mr. Wahinya from Wahinya Advocates for the Claimant and Mr. Kivindyo from the firm of TripleOKLaw LLP Advocates for the Respondent The Parties 1. The Claimant is an athlete of presumed sound mind and disposition residing and working for gain in Kenya as a professional football player.

2. The Respondent is a football club duly registered and recognized as a sport organization under the provisions of the Sports Act, 2023, affiliated to the Football Kenya Federation (FKF) and participates in the Kenya Premier League which is organized and run by the FKF for the game of association of football.

Background 3. The Claimant approached the Tribunal via a Statement of Claim dated 30th August 2023 requesting the Tribunal to make the following orders: -a.A declaration that the Respondent breached the contract entered into with the Claimant,b.Awards of monetary compensation to the Claimant and against the Respondent for the sum of Kshs. 2,470,000/= as particularized under paragraph 17 of the claim,c.Aggravated damages at Kshs. 1,500,000/=,d.Loss of future earnings as a professional footballer,e.Interest on the a, b, c and e at the rates as the Tribunal may decide in the event of default of payment by the Respondents.

4. Subsequent to filing of the Claim, the matter came up before the Tribunal either through mentions or hearings on diverse dates

5. On 14th November 2023 an interlocutory order directing the matter to proceed to formal proof hearing on 21st November 2023 was issued by the Tribunal.

6. On 17th November 2023, the Respondent filed a Certificate of urgency, Notice of Motion and Supporting Affidavit seeking for orders to set aside the Interlocutory Order of 14th November 2023 directing the matter to proceed for formal proof hearing on 21st November 2023.

7. The parties recorded a consent to have the application compromised and withdrawn with no order as to costs, the Respondent to file and serve its Response and List of Documents by 22nd November 2023 and lastly, on the 5th December 2023 the date scheduled for highlighting of the compromised application to be a date for hearing of the main suit.

Claimant’s Case 8. The Claimant avers that while under contract with Nairobi Stima Club (Hereinafter, “the Club”), he was approached by one Stephen Othoro who presented himself as an agent of the Respondent who expressed keen interest in signing him for the Respondent. He was under contract with the Club and the contract was to lapse on 30th January 2021.

9. After being convinced, the Club activated his release clause, which required the Respondent to pay the Claimant and the Club Kshs. 250,000/= each. The Respondent allegedly paid the Club Kshs. 250,000/= and promised to pay the Claimant his dues once he signed for the Respondent.

10. The Claimant signed the contract with the Respondent on 2nd September 2019, with one Eliakim Kidinga and the Respondent’s alleged agent Stephen Othoro signing on behalf of Bramwel Simiyu And Azu Ogola, The Team Manager And Ceo of the Respondent, respectively, who both demonstrated their capacity to be bound by the contract with the Claimant.

11. The Claimant indicated that the series of events and actions of the said agent and the Claimant encapsulate all the elements of a valid contract including offer and acceptance.

12. The Claimant was on a contract of two years running to 2nd September 2021, earning Kshs. 30,000/= per month, and reported to the training camp and discharged his duties under clause 2 of the player’s contract that he signed and began training with the KCB Youth Team (Protégé FC) for the first leg of the season for developmental purposes as per Clause 2. 6.1.

13. The Claimant avers that he received reassurance from Mr. Stephen Othoro about his salary payments eventually coming, as he had not been remunerated for a while, with Mr. Othoro informing him that his name had not been entered into the Club’s payroll system, and the Claimant was directed to open a bank account with the Respondent (KCB Bank) which he did, and was assigned Account Number 1265032475.

14. The Claimant averred that his capabilities and professional standards as an athlete exceeded those of the junior team and he requested to be moved to the senior team. He was then allegedly moved to the senior KCB team with which he trained for two weeks.

15. The Claimant submits that it is for that reason that this honorable Tribunal should hold that the contract entered into between the Claimant and the Respondent as valid and enforceable. The parties must have had the intention to create legal relations. Social agreements or agreements without legal consequences may not be considered valid contracts; from the circumstances of the case the expression by the agent of the Respondent to the Claimant that he intended him to work with them was a clear intention of creating legal relations.

16. The Claimant submitted that it was not a social agreement from the circumstances of the case since a contract was presented to the him after the negotiations were complete and executed by the KCB Club’s agents and the Claimant.

17. The Claimant’s contract with his former club had a release clause of Kenya Shillings Five Hundred Thousand Shillings (Kshs 500,000/=), a fact that Stephen Othoro the Respondent’s agent had been made well aware of. The agent went ahead and requested that the Respondent pays the release clause of Kenya Shillings of Two Hundred and Fifty Thousand (Kshs 250,000/=) which the Nairobi Stima Club acknowledged receipt of on the 6th of February 2020. The Claimant submits to this honorable Tribunal that the payment of the said release clause was enough to warrant that the Tribunal hold that the said contract dated the 2nd September 2019 as valid and thus enforceable.

18. Mr. Stephen Othoro expressly intimated to the claimant that he had capacity to contract with him as an agent of the Respondent and presented a KCBFootball ClubPlayers Contract and proceeded to execute it on the 2nd day of September 2019 for the KCB Club’s Chief Executive Officer Azu Ogola while Eliakim Kidinga executed the contract for the KCB Club’s Team Manager. In his submissions, the Claimant states that at the hearing of the matter before the honorable Tribunal, the Respondent’s only witness Mr. Bramwel Simiyu acknowledged that the individuals who executed the said contract were all the KCB Bank’s Employees.

19. Consequently, the Claimant stated that the said contract’s recitations stipulate that the parties to the contract are/were one Mr. Erick Kinuthia the Claimant herein and KCB Football Clubthe Respondent herein; it therefore follows that the Claimant had sufficient reason to believe that he was entering into a contract with the Respondent.

20. The Claimant claims that Mr. Stephen Othoro presented a KCB FootballPlayer’s Contract to the Claimant, and convinced him to activate his release clause from his former club, which he dutifully did under the impression that he would be joining the Respondent’s Club. Mr. Stephen Othoro later on went ahead and requested that the Respondent pay the said transfer fees to the former club which the latter acknowledged receipt of on the 6th of February 2020.

21. It is on this assurance and promise that the Claimant executed the contract with the Respondent and therefore the Respondent should be estopped from denying that they entered into a legal relationship.

22. The Claimant therefore submits that this Honorable Tribunal should hold the Respondent in breach of the contract dated 2nd September 2019 and award reliefs as prayed.

Respondent’s Case 23. The Respondent opposed the Claimant’s claim and relied on the statement of Response and the list and bundle of documents dated 17th November 2023 together with the testimony by Bramwel Simiyu Mbirira summarized by his written witness sworn on 5th December 2023.

24. The Respondent submits that on the issue of validity of the contract, the Claimant was expected to prove on a balance of probabilities the essential components of a contract that is offer, acceptance, any consideration as well as any intention to create legal relations. The Respondent submits that no contract existed between itself and the Claimant.

25. The Respondent submits that the foundation of the Claimant’s allegation of existence of a contract hinges on an agreement with an individual identified as Stephen Othoro who purportedly presented himself as an agent of the Respondent. However, the Claimant has not substantiated why he believed the individual was genuinely the Respondent’s agent as there is no evidence that indicated that Mr. Othoro had the capacity to represent the Respondent and neither did the Claimant demonstrate any efforts made to verify that the alleged individual was an agent of the Respondent.

26. The Respondent’s submission rebutting the Claimant’s averment that a mere presentation of an altered contract having the Respondent’s logo and name does not grant one the capacity to legally represent the Respondent. The alleged Stephen Othoro had no capacity to represent the Respondent.

27. The Respondent averred that notably the purported contract itself lacks signatures on all pages. Additionally, the Claimant has failed to establish that the individuals signing the document were duly authorized by the Respondent to act on its behalf.

28. It is the Respondent’s case that, the alleged individual, whom the Claimant chose not to join in this suit, was neither an official of the Respondent nor authorized, and thus could be in no capacity howsoever to sign the agreement on behalf of the Respondent.

29. The Claimant has produced no evidence of such negotiations preceding the alleged contract that would make the contract valid. The documents before the Tribunal at page 41 to 44 of the Respondent’s List and Bundle of Documents clearly show that the negotiations as per clause 6. 5.6 of the FKF Regulations 2019 were between the Claimant’s parent club Nairobi Stima and Protégé FC which did not have any authority to represent the Respondent in this transaction.

30. The Respondent submits that the Claimant has failed to prove that the Respondent (KCB FC) made any representation to him. Therefore, KCB FC is not privy to the purported contract that the Claimant is waving at its face.

31. The Respondent avers that they have demonstrated that the Claimant was identified and approached by Protégé Football Club, an independent Football Club not controlled by KCB FC. The persons whose names appear on the alleged contract were neither officials nor were they authorized to sign the contract on behalf of the Respondent.

32. Moreover, the Respondent submits that a contract is a binding agreement solely between the parties involved. In this context, the Respondent further submits that no agency relationship existed between Protégé FC and KCB FC, which would authorize Protégé FC to enter into agreements with players on behalf of KCB FC.

33. The partnership agreement between KCB FC and Protégé FC, entered into on 29th January 2020, explicitly outlines that any transfer from Protégé to KCB would only proceed after a meticulous selection process, duly communicated in writing. This stringent process, as per clause 3. 5.1, shows that only selected players would be eligible for transfer.

34. Therefore, Protégé FC and its officials, as per the terms of the partnership agreement, lack the authority to bind the Respondent (KCB FC) through any actions or agreements. This is because the transfer mechanism under the partnership agreement is contingent upon KCB FC’s selection and subsequent written communication.

35. In light of these contractual provisions and the absence of any agency relationship permitting Protégé FC to act on behalf of KCB FC, the Respondent maintains that no action taken by Protégé FC or its officials can validly bind or obligate KCB FC in the present matter.

36. The unchallenged evidence reveals that negotiations occurred between Nairobi Stima Welfare FC and Protégé FC, culminating in an agreement where Protégé FC committed to paying transfer fees amounting to Kshs. 250,000. 00 to Nairobi Stima Welfare FC, And the transfer fees were duly paid by Protégé FC and rightfully acknowledged by the Claimant's former club, Nairobi Stima Welfare FC.

37. Considering this undisputed transaction, there exists no valid basis to require KCB FC to pay any additional transfer fees. The Respondent asserts that it cannot be held accountable for matters outside the purview of its contractual relationship with Protégé FC.

38. It is uncontroverted that the Claimant never joined the Respondent and never offered his services to KCB FC at any point in time.

39. Given that the Claimant had no contractual relationship with KCB FC, the Respondent submits that the absence of any contractual nexus between the Claimant and KCB FC absolves the Respondent from any obligation to address or fulfil purported salary payments to the Claimant.

40. The Respondent respectfully urges the Honourable Tribunal to dismiss the Claimant’s case in its entirety, with costs awarded to the Respondent.

Issues 41. The Tribunal has concurred with the Claimant in its written submissions on what constituted the issues for determination from the pleadings, the evidence and the submissions filed before the Tribunal. The issues were listed as follows:a.Whether there existed a valid contract between the Claimant and the Respondentb.Whether the Respondent is liable to pay the Claimant the transfer feesc.Who is liable to pay the Claimant’s damages?d.Which party should bear the costs?

a. Whether there existed a valid contract between the Claimant and the Respondent 42. According to the Oxford Learner’s Dictionary, the word “Protégé” is defined to mean, …A young person who is helped in their career and development by a more experienced person…It also means …A person who is guided and supported by an older and more experienced influential person…

43. A simple reading of the contract dated 2nd September 2019, between the Claimant herein and the alleged signatories on behalf of the Respondent reveals under Article 2. 6.1 – Players Duties and Obligations, that “the player shall be assigned to the KCB Youth Team (Protégé FC) for the first leg of the season for developmental purposes and thereafter be evaluated to move up to KCB FC. Based on the player’s performance, adjustments will be made to his compensations”.

44. On the basis of Article 2. 6.1, any ambiguity about the relationship between KCB and Protégé are fully cleared. There is no doubt about their relationship. There was an express partnership between the two, as they are completely joined at the hip. The Oxford Learner’s Dictionary’s definition of a partnership is “a business owned by two or more people who share the profits etc.” while ‘Agreement’ (between A and B) (is) an arrangement, a promise or a contract made with somebody etc.

45. It is also important to note that the authenticity of the Player’s Contract has not been questioned, but only that the signatories on behalf of the Respondent may not have had the authority to do so on behalf of the Respondent.

46. The law on contract is governed by the Law of Contract (Cap 23 of the Laws of Kenya). For a contract to be considered valid the prerequisite to be ascertained are as follows; Offer and Acceptance, Intention to create legal intention, Consideration and Capacity. The Claimant is expected to prove on a balance of probabilities the essential components of a contract.

47. According to the facts of the case, Mr. Stephen Othoro, not a party to this suit, presented himself as an agent of the Claimant and produced a contract that was branded by the official logo of KCB Football Club. The Claimant was therefore convinced that the contract was valid and therefore relied on that representation to sign the contract and activate his release clause from his former club, Nairobi Stima Club. The Respondent’s club went ahead to pay for the release clause fees.

48. The offer was extended by Stephen Othoro and Eliakim Kidinga (both not sued in this case) on 29th August 2019, representing Protégé FC, inviting the Claimant to join Protégé FC. This offer was duly accepted by Nairobi Stima Welfare FC in a letter dated 30th August 2019, annexed as document No. 2 in the Respondent’s List and Bundle of Documents.

49. Subsequently, the process of transfer agreement was formally pursued between Protégé FC and Nairobi Stima Welfare FC on 30th August 2019 (AO2, AO3 & AO4 - signed by one Johnson Sakwa on behalf of Nairobi Stima FC), confirming the lawful transfer of the Claimant. The negotiations leading to the formal conclusion of the transfer agreement occurred in February 2020 between representatives of Protégé FC and Nairobi Stima Welfare FC, are as evidenced by AO7 (pages 46-5) in the Respondent’s List and Bundle of Documents. Transfer fees were duly paid to Nairobi Stima Welfare FC by Protégé FC on 6th February 2020, further solidifying the legitimacy in transfer process. This transaction is verified in AO 7 (page 50) in the Respondent’s List and Bundle of Documents.

50. The Tribunal therefore notes that the elements of offer and acceptance, the intention to create a legal relation as well as consideration have been duly established and proven by the Claimant.

51. On the issue of capacity, the Claimant submitted that Mr. Stephen Othoro expressly intimated to the Claimant that he had capacity to contract with him as an agent of the Respondent and presented a KCB Football Club Player’s Contract and proceeded to execute it as evidenced in the Respondent’s AO4 for the KCB club’s Chief Executive Officer Azu Ogola while Eliakim Kidinga executed the contract for the KCB club’s Team Manager. The Claimant also submitted that at the hearing of the matter before the Tribunal, the Respondent’s only witness Mr. Bramwel Simiyu acknowledged that the individuals who executed the said contract were all the KCB Bank’s Employees. This Claim went unchallenged or there was no response to it by the Respondent in its submissions. The said contract’s recitations stipulate that the parties to the contract are/were one Mr. Erick Kinuthia the Claimant herein and KCB FOOTBALL CLUB, the Respondent herein; it therefore follows that the Claimant had sufficient reason to believe that he was entering into a contract with the Respondent. No questions have been raised about the authenticity of Mr. Stephen Othoro’s role with Protégé FC, KCB FC’s junior team.

52. The Tribunal also notes that though the FKF Rules and Regulations clause 6. 2.7 requires the contract be signed by the player and the club officials on all pages, the contract presented by the Claimant has not been signed on all pages by the relevant signatories. In the interest of justice and fairness, and in the prevailing circumstances it shall be very unfair to invalidate the contract on the basis of such an omission and therefore the contract’s validity is upheld.

53. There also expressly exists a partnership agreement between KCB Football Club and Protégé Sports Limited signed on the 29th January 2020 with the parties entering into a covenant to cover talent identification, talent development with KCB contributing towards Protégé’s training program for up to Kshs. 5,000,000/= annually. The contract is signed by Azu Ogola and Stephen Othoro on behalf of Protégé Sports Limited. If such officials indeed presented a contract branded KCB Football Club Players Contract to a potential signing, and presented themselves as agents of KCB Football Club, signing the contract for KCB Football Club, it would be very hard for any average player with average levels of education in Kenya not to believe that they were signing for KCB Football Club. The partnership agreement is marked as annexture A-08 in the Respondents bundle of documents.

54. Having earlier established the consequences of Article 2. 6.1 of the Player’s contract, it goes without saying that it is rather difficult to dissociate Protégé FC from KCB, it therefore holds that going through the said contract, it’s fathomable that the Claimant reasonably believed he was indeed signing for KCB FC.

55. It is therefore the Tribunal’s assertion that the Claimant has proved the existence of a valid contract with the Respondent.

56. To that extent, the Panel is on a balance of probability, reasonably satisfied with the Claimant’s claim.

57. The panel also takes judicial notice of SDT CASE NO. 15 OF 2020 – ERICK KINUTHIA MAINA VS KCB FOOTBALL CLUB, STEPHEN OTHORO, AZU OGOLA, BRAMWEL SIMIYU AND ELIAKIM KIDINGA. We are yet to be shown any evidence or confirmation that anything has been done by KCB FC against the actions of individuals purporting to act on their behalf who allegedly entered into contractual relationships on their behalf, acts that may border on being fraudulent/ criminal or any measures taken by the Club to safeguard themselves against the potential damage that may arise from it.

b. Whether the Respondent is liable to pay the Claimant the transfer fees. 58. Next issue is to determine whether the Respondent is liable to pay the Claimant the sum of Kshs. 250,000 as transfer fee.

59. Mr. Stephen Othoro presented a KCB Football Player’s Contract to the Claimant; and convinced him to activate his release clause from his former club Nairobi Stima Football Club which he dutifully did under the impression that he would be joining the Respondent’s Club. Mr. Stephen Othoro later on went ahead and requested that the Respondent pay the said transfer fees to the former club which the latter acknowledged receipt of on the 6th of February 2020.

60. The Respondent’s Counsel during the hearing of this suit adduced evidence that the Claimant was signed to Protégé FC an affiliate and feeder club of the Respondent’s club. The KCB Football Club Player’s Contract at clause 2. 6 stipulated that the player shall only play football exclusively for the Club or as authorized by the Club officials; the same contract at sub clause 2. 6.1 stipulates that the player would be assigned to KCB Youth (Protégé FC) for the first leg of the season for developmental purposes and thereafter be evaluated to move up to KCB FC seniors.

61. Based on these facts and the establishment of a legal and contractual relationship with the Respondent, the Tribunal opines that the Respondent is liable to pay the Claimant the transfer fee of Kshs. 250,000/= as its agents initiated the contract on the Respondent’s behalf.

c. Who is liable to pay the Claimant damages? 62. On the issue of who is liable, the affiliations of KCB FC and Protégé FC have already been ascertained.

63. On 29th January 2020, KCB FC and Protégé FC entered into a partnership agreement. The terms of the agreement stipulate that Protégé FC would develop players, Protégé FC has the responsibility to scout, identify, train and develop talent as stipulated in the contract, see ‘Partnership Agreement clause (3) Responsibilities of the parties (3. 1) Protégé and (3. 2) KCB FC.

64. Agency/partnership agreement is a legal relationship between parties. An agent/partner is employed/engaged to represent another in dealing with third parties. Cap 23 Laws of Kenya govern the agency law in Kenya. In Timmins (Town) v Brewers’ Warehouse Co. Ltd it was stated,“The outstanding feature of an agent’s employment in a legal sense is that he is employed primarily to bring about business relations between the principal and third persons, and this characteristic is perhaps the most distinctive mark of the agent as contrasted with others not agents who act in representative capacities”In Agency Law, the relationship between the 3rd party and the agent ends the moment the principal and the 3rd party relate.

65. The relationship between the parties creates agency/partnership where those working for Protégé FC scout for players to train with the intention of transferring them to the Respondent. This is a business relation with an end goal of transferring players to the Respondent as showcased in the case of Timmins (Town) v Brewers House Company Limited.

66. Agency/partnership relationship can be created in law through various ways, among them Agency by Estoppel that means a person by his words or conduct has made a 3rd party believe that the person he is contracting is an agent of the first mentioned person and therefore the first mentioned person is estopped from denying the fact that the person with whom the 3rd party contracted is an agent/partner. In this case, the Respondent is estopped by the law from denying that Stephen Othoro and Eliakim Kidinga are their agents/partners due to the fact that their conduct and word implied they worked as agents/partners of the Respondent.

67. The Tribunal ascertains that it is on Mr. Stephen Othoro’s assurance and promise that the Claimant executed the contract with the Respondent and therefore the Respondent should be estopped from denying that they entered into a legal relationship. It indeed is Mr. Stephen Othoro who allegedly takes him to train with the KCB senior team for two weeks, and reassures him of his pending payments. Although there is denial by the Respondent about the Claimant ever training with their senior team, it simply remains that against the word of the Claimant, and there’s nothing concrete to counter the Claimant’s assertion.

68. In light of the foregoing, the Tribunal is persuaded that the affiliations of KCB FC and Protégé FC in this particular case are such as to bind the Respondent. The Respondent is thus found legally liable to the Claimant.

69. The Tribunal considers the case of Hydro Water Well (K) Limited v Sechere & 2 others (Sued in their representative capacity as the officers of Chae Kenya Society) (Civil Suit E212 of 2019) [2021] KEHC 22 (KLR) where the court held that ‘’To successfully claim damages, a plaintiff must show that:(a)a contract exists or existed;(b)the contract was breached by the defendant; and(c)the plaintiff suffered damage (loss) as a result of the defendant’s breach…

70. The Tribunal agrees that the case is cumulative, and no element can stand alone without the others. Crucially, the foundation upon which this test rests is the existence of a contract, which the Tribunal has established that a contractual relationship thus exists between the Claimant and the Respondent.

71. Costs are discretionary as was espoused in Haraf Traders Limited v Narok County Government where the court held2] In Republic vs Rosemary Wairimu Munene, Ex-Parte Applicant Vs Ihururu Dairy Farmers Co-operative Society Ltd Judicial Review application no 6 of 2014 court held as follows: -"The issue of costs is the discretion of the court as provided under the above section. The basic rule on attribution of costs is that costs follow the event....... It is well recognized that the principal costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case.’’

72. Furthermore, the Halsbury provides as follows:(24)Costs are at the discretion of the court, yet, follows the event. See the Halsbury’s Laws of England; 4th Edition (Re-issue), {2010}, Vol.10. para 16“The court has discretion as to whether costs are payable by one party to another, the amount of those costs, and when they are to be paid. Where costs are in the discretion of the court, a party has no right to costs unless and until the court awards them to him, and the court has an absolute and unfettered discretion to award or not to award them. This discretion must be exercised judicially; it must not be exercised arbitrarily but in accordance with reason and justice” (Emphasis added).

73. From the foregoing, the Tribunal reiterates that it has full discretion on the award of costs and will exercise the power as it deems fit.

Conclusion 74. Having analyzed the issues as above, the Tribunal ascertains that the contract fully covered the essentials for a contract to be considered valid, and enforceable and declares that: -I. The Respondent breached the contract entered into with the Claimant;II. Awards monetary compensation to the Claimant and against the Respondent for the sum of Kshs. 970,000/= as itemized for transfer fees and unpaid salary;III. Costs of this claim;IV. Interest on II and III above at the rates as the Tribunal may decide in the event of default of payment by the Respondent.

It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF MARCH, 2024. ............................................Allan Mola OwinyiPanel Chairperson.............................................Mary Kimani Gabriel OukoMember Member