[2022] KESDT 679 (KLR)

Migori Youth Football Club & 8 others v FKF Transition Committee; Leagues and Competition Committee & 5 others (Interested Parties) (Petition E021 of 2021) [2022] KESDT 679 (KLR) (23 August 2022) (Decision)

Neutral citation: [2022] KESDT 679 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Petition E021 of 2021

John M Ohaga, Chair & J Njeri Onyango, Member

August 23, 2022

Between

Migori Youth Football Club

1st Petitioner

Dandora Love Football Club

2nd Petitioner

Gusii Fooball Club

3rd Petitioner

Zoo Football Limited

4th Petitioner

Kamungei United Football Club

5th Petitioner

Kisumu All Stars

6th Petitioner

Mwatate United

7th Petitioner

Coastal Heroes Football Club

8th Petitioner

Francis Ngira Okello

9th Petitioner

and

FKF Transition Committee

Respondent

and

Leagues and Competition Committee

Interested Party

Referees’ Committee

Interested Party

Medical Committee

Interested Party

Players Status Committee

Interested Party

Appointment Committee

Interested Party

FKF Independent Disciplinary Committee

Interested Party

Decision

Panel:John M Ohaga SC, CArb – Chairperson J Njeri Onyango, FCIArb – MemberAppearances:Mr. Ken Ochieng’ appearing for the Petitioners Mr. Muchemi appearing for the Respondent A.Introduction i. Parties 1. The 1st Petitioner is an amateur football club based in Migori County and registered under the Sports Act, No. 25 of 2013. It brings this petition through its chairman, Abdi Aziz Osman.

2. The 2nd Petitioner is an amateur football club based in Nairobi County and registered under the Sports Act, No. 25 of 2013. It brings this petition through its Chairman, Raphael Agolla.

3. The 3rd Petitioner is an amateur football club based in Kisii County and registered under the Sports Act, No. 25 of 2013. It brings this petition through its chairman, Paul Mayieko.

4. The 4th Petitioner is a limited liability company incorporated within the Republic of Kenya. It owns runs and manages a professional football club based in Kericho County and which plays the sport of football in the name and style of "Zoo FC”.

5. The 5th Petitioner is an amateur football club based in Bomet County and registered under the Sports Act, No. 25 of 2013. It brings this petition through Its Chairman, Sigei William Kipsang.

6. 6. The 6thPetitioner is an amateur football club based in Kisumu County and registered under the Sports Act, No. 25 of 2013. It brings this petition through its Chairman, Nicholas Ochieng.

7. The 7th Petitioner is an amateur football club based in Taita-Taveta County and registered under the Sports Act, No. 25 of 2013. It brings this petition through its Chairman, James Mbaraka Okoyo.

8. The 8thPetitioner is an amateur football club based in Mombasa County and registered under the Sports Act, No. 25 of 2013. It brings this petition through its Chairman, David Opiyo Othieno.

9. The 9th Petitioner is a male adult of sound mind, who describes himself as an experienced journalist of good repute and standing, having covered Kenyan football for over a decade.

10. The Respondent is the Federation of Kenyan Football Transition Committee (hereafter the ‘FKF Transition Committee’) that was appointed by the Cabinet Secretary for Sports, Culture and Heritage under Section 54 (1) of the Sports Act No. 25 of 2013 on 13th May 2022 vide the Gazette Notice No. 5518. The Tribunal takes into judicial notice the expiration of Gazette Notice No. 5518 and consequent appointment of the FKF Transition Committee under Gazette Notice No. 7005, which occurred after the institution of this Petition.

11. The 1st Interested Party is judicial body created under Article 48 of the Federation of Kenya Football Constitution, 2017.

12. The 2ndto 6th Interested Parties are standing committees created under Article 48 of the Federation of Kenya Football Constitution, 2017.

ii. Factual Background 13. The Petitioners’ claims are hinged on the decision by the Cabinet Secretary of Sports, Culture and Heritage on 11th November 2021, exercising her prerogative under Section 54 (1) of the Sports Act to appoint any person or committee to assume the management, control and conduct of the affairs of a sports organization.

14. To this extent, the Cabinet Secretary for Sports appointed the Football Kenya Federation Caretaker Committee to assume the powers and functions of the National Executive Council, a body of the Football Kenya Federation created under Article 37 of the FKF Constitution. The tenure of the Committee as indicated in the Sports Act was to be 6 months.

15. The FKF Caretaker Committee would carry out its mandate in accordance with Gazette Notice No. 12374. Its functions would include:a.Conduct of the affairs of the Football Kenya Federation in accordance with the Constitution of the FKF;b.Ensure the FKF operates within the provisions of the Sports Act;c.Co-ordinate and ensure the smooth running of FKF operations including team preparations for all local and international sporting events;d.Co-ordinate elections of officials of the FKF according to the Sports Act and the Sports Registrar Regulation of 2016; ande.Hand over the management of FKF to the newly elected officials after the election.

16. At the tail end of the 6-month period, the FKF Caretaker Committee, on 10th May 2022 submitted to the Cabinet Secretary a report detailing the progress on their issued directives. Among these recommendations, the Committee was of the view that the FKF Constitution should be amended to comply with the Constitution of Kenya and the Sports Act. Subsequently, elections to the FKF National Executive Committee would be carried out according to the new FKF Constitution.

17. It is with this recommendation in mind that the Cabinet Secretary of Sports, Culture and Heritage, on 13th May 2022 appointed under Gazette Notice No. 5518 the FKF Transition Committee with the outlined mandate to, inter alia:a.Co-ordinate and facilitate the validation of the draft Constitution of Football Kenya Federation.

18. The FKF Transition Committee would, nevertheless, be constituted by the same members as those of the FKF Caretaker Committee.

19. The FKF Caretaker Committee’s tenure, as provided by the Gazette Notice, would be for five (5) weeks, during which the new constitution of the FKF would be validated and adopted. Moreso, the Committee would manage the affairs of the FKF and ensure smooth running of football activities in accordance with the FKF Constitution.

20. It is after the gazettement of the Transition Committee that the head of its Secretariat, Lindah Oguttu, sent out a letter on 13th May 2022 informing club officials that the league matches would continue as scheduled in terms of the fixtures issued by the Caretaker Committee.

21. As a result, the Petitioners filed this Petition together with the application by way of Notice of Motion accompanied by a certificate of urgency seeking conservatory orders halting the continuance of the National Super league and Division One League matches.

22. It is of importance to note that the tenure of the FKF Transition Committee appointed under Gazette Notice No. 5518 has since expired.

23. Consequently, the Cabinet Secretary of Sports, Culture and Heritage through Gazette Notice No. 7005 of 16th June 2022 appointed the FKF Transition Committee for a further period of two (2) months.

24. The period concludes on 16th August 2022, commensurate with the issuance of this judgement.

B.Pleadings And Preliminaries 25. The matter was commenced via a Petition dated 15th May 2022.

26. Simultaneously with the Petition an application was filed by way of Notice of Motion of the same date which was brought under a Certificate of Urgency and a Supporting Affidavit (‘the Application’).

27. The Application sought various declarations and conservatory orders, the main purpose of which was to restrain the Respondent from proceeding with the National Super League and Division One League 2021-2022 season matches as per the fixtures released by its predecessor, the FKF Caretaker Committee, and as decided by the Respondent through the Head of its Secretariat, Lindah Oguttu, communicated to all club officials via a letter dated 13th May 2022.

28. Upon considering the Application, the Tribunal duly certified it as urgent and issued the following directions dated 20th May 2022:a.That the Application be served upon the Respondent immediately and in any event by close of business on Monday, 23rd May 2022. b.That the matter be set down for mention for directions on Tuesday, 24th May 2022.

29. The 1st Interested Party and, 2nd to 6th Interested Parties made oral applications through their counsels, Messrs. Munyendo and Muhuyu, respectively, for joinder as interested parties on 24th May 2022 when the matter came up for mention to issue directions.

30. The Tribunal granted the prayers for joinder of parties and directed the Interested Parties to serve the Petitioners and the Respondent with notice of joinder. The matter was then again listed for mention on 26th May 2022.

31. The Tribunal, on 26th May 2022, made a ruling on the Application granting conservatory orders for seven (7) days, staying the Respondent ’s decision of 13th May 2022 that ordered the continuation of the National Super League and Division One League 2021-2022 season matches.

32. The Tribunal directed that the matter be mentioned on 2nd June 2022 for further directions.

33. The Applicants/Petitioners then filed a Notice of Motion Application under a certificate of urgency dated 30th May 2022 praying for orders that the Head of Secretariat for the Respondent be held in contempt of the orders the Tribunal issued on 26th May 2022.

34. The Application disclosed that the Respondent had, in violation of the Tribunal’s orders, proceeded with the matches set for the 27th and 28th of May, 2022. This, consequently, led to relegation and docking of points for teams that did not honor the match fixtures. Furthermore, through the Affidavit of the 8th Petitioner’s chairperson David Opiyo Othieno, it disclosed that the Respondent had released further match fixtures slated for 1stJune 2022, a day prior to the extinguishing of the Tribunal’s Conservatory orders.

35. The Respondent, subsequently, filed a replying affidavit to the Application for contempt on the 2nd of June 2022. In their response to the Application, the Respondent indicated that they had not been adequately served with the orders of the Tribunal dated 26thMay 2022.

36. The Tribunal upon mentioning the case on 2ndJune 2022 noted that the issues raised by the parties consisted of legal and non-legal matters that could not be resolved solely by the Tribunal’s order.

37. Consequently, the Chairperson, exercising the Tribunal’s mandate to prefer alternative dispute resolution mechanisms, directed that the parties nominate representatives for a mediation session whose panel would consist of the Chairperson to the Tribunal, Mr. John Ohaga, SC and Madam Njeri Onyango. The mediation would allow the parties to canvas the non-legal issues raised in the Petition and Applications as well as technical and administrative matters regarding the affairs of the FKF that had been raised.

38. The Mediation session, would among other things, discuss:a.The running and management of the leagues between the Respondent, the League and Competition Committee and the Petitioners;b.The mandate of the 2nd to 6th Interested Parties vis a vis the mandate of the Respondent;c.The docking of points from teams who honored the Tribunal’s ruling on 26th May 2022;d.The relegation of teams as a result of honoring the Tribunal’s ruling dated 26th May 2022. 39. The Tribunal gave further directions that:a.Any relegation as a consequence of the conservatory order to be reserved;b.Any docking as a consequence of the conservatory order to be reserved;c.Fixtures of the games to be released by 3rd of June before 12:00 PM;d.The matter to be listed for mediation on 6th of June 2022 at 3:00 PM.

40. The matter came up for directions on 21st June 2022 at which point counsel for the 1stInterested Party, holding brief for the Petitioners and 2nd to 6th Interested Parties, asked the Tribunal to hear and determine the Petition at hand and cease the mediation process, which had so far not led to any resolution. Counsel for the Respondent was in agreement.

41. It was further prayed that the matter be canvassed by way of written submissions.

42. The Tribunal granted the prayers and directed that parties file written submissions for the substantive petition. The matter would be listed for hearing on 27thJuly 2022.

43. The Petitioners filed their written submissions on 20thJuly 2022, the 1st Interested Party filed their submissions on 26th July 2002, and the Respondent s filed their submissions on 2nd August 2022.

C.Substantive Claims i. The Petitioners’ Case 44. The Petitioners’ case is set out in the Petition, the Notice of Motion and the Supporting Affidavit of Abdi Aziz Osman dated 15thJune 2022. 45. The Petition is concerned with the legality of the actions of:a.The Respondent in unlawfully or illegally or negligently authorizing the continuation of the National Super League and Division One League fixtures in the 2021-2022 season vide a letter by the Head of the Respondent ’s secretariat dated 13th May 2022 which action is ultra vires and contrary to the FKF Constitution;b.The Respondent in running the National Super League and Division One League, without any functional Leagues and Competitions, Referee’s, Medical, Player Status, Arbitration, Legal, Disciplinary, Ethics and Appeals committees (hereinafter jointly referred to as the ‘FKF Bodies’) acted contrary to the FKF Constitution;c.The Respondent in purportedly dismissing members of the FKF Bodies and or in any other way revoking their mandates contrary to the FKF Constitution;d.The Respondent s in electing or appointing new members of the FKF Bodies or leaving their offices unoccupied contrary to the FKF Constitution.

46. The Petitioners accordingly seek an award against the Respondent in the following terms:a.A declaration be and is hereby issued that the Respondent 's action in running the 2021 -2022 season National Super League and Division One League, was without any functional Leagues and Competitions, Referees', Medical, Player Status, Arbitration, Legal, Disciplinary; Ethics and Appeals Committees (hereinafter jointly referred to as the "FKF bodies") and was contrary to the FKF Constitution,b.A declaration be and is hereby issued that the Respondent 's action in dismissing the members of FKF bodies and or in any other way revoking of their mandates was contrary to the FKF Constitution,c.A declaration be and is hereby issued that the Respondent's purported election or appointment of new members of FKF bodies, if any, or leaving their offices unoccupied was contrary to the FKF Constitution;d.A declaration be and is hereby issued that the decision by the FKF Transition Committee Head of Secretariat of 13th May 2022 that purported to unilaterally order for the continuation of the NSL and DOL 2021 -2022 season matches as per the fixtures released by its predecessor, the FKF Caretaker Committee, was ultra vires to her authority and was in gross violation of the FKF Constitution, 2017 and the Fair Administrative Actions Act.ii.The Respondent ’s Case

47. The Respondent, the Football Kenya Federation Transition Committee filed their Written Submissions dated 2nd August 2022 in which they intend to rely on to oppose the petition.

48. The Respondent, in its written submissions, argues that the mandate of the FKF Transition Committee emanates from the Gazette Notice establishing the committee. It is against this backdrop that the Respondent, with an aim of ensuring the smooth running of the operations of football activities, appointed on 18th May 2022 the standing committees of the FKF.

49. The Respondent further provides that the prayers sought by the Petitioners regarding the National Super League fixtures are redundant and have been overtaken by events since the League is almost at an end. Therefore, the Tribunal cannot give academic orders which are unenforceable. The Respondent s refer to the case of KalyaSoi Farmer’s Cooperative Society v Paul Kirui and Another where the maxim that equity, like nature, will do nothing in vain is utilized to caution courts against making unenforceable orders and ineffective injunctions.

50. The Respondent further argues that the actions decried by the Petitioners have been undertaken by the Respondent in good faith and with a keen eye on their mandate under the Gazette Notice No. 5518, which is, inter alia, to ensure the smooth running of football activities within the ambit of the FKF Constitution.

51. The Respondent moves the Tribunal to take judicial notice of the smooth running of the FKF League 2021-2022 to its conclusion with no incidents.

52. The Respondent further provides that the Petition has been filed devoid of basis and proof. The allegations made in the Petition among them being: poor officiating of matches, player assault, and non- payment of referees have been made without reference to any evidence such as an affidavit of a referee or an assaulted player.

53. Conclusively, the Respondent indicts the Petitioners with embarking on a fishing expedition by seeking assistance of the Tribunal to compel the Respondent to a stakeholder’s meeting without following due procedure.

54. The Respondent thereby prays that the Tribunal finds the petition lacking in merit and dismiss it with costs.

iii. The 1st Interested Party’s Case 55. The 1st Interested Party, the Football Kenya Federation Independent Disciplinary Committee filed their Replying Affidavit dated 25th May 2022 and their Written Submissions dated 20th July 2022 which they intend to rely on to support the Petition.

56. The 1st Interested Party, in its written submissions, states that the Independent Disciplinary Committee and the Arbitration Committee are creatures of the Football Kenya Federation constitution under Article 64 (1) (a) and Article 46 (1) (1) respectively.

57. They further provide that under Article 46 (3), the composition of the standing committees of the Federation is a function of the National Executive Council which is mandated to appoint the members of the standing committees on the proposal of the members or President of the FKF. The members may serve for a duration of 4 years.

58. Further to this, Articles 64 (4) provides for the election of members of judicial bodies by General Assembly as proposed by the National Executive Committee.

59. The 1st Interested Party then outlines that the Independent Disciplinary and Arbitration committee was so constituted on 12th November 2020 for a tenure of four years. They further indicate that the composition of the committee was ratified by the General Assembly on the 6th of February 2021 which then would mean that their tenure would expire on 12th November 2024.

60. The 1st Interested Party further argues that the Respondent ’s appointment of another Independent Disciplinary and Appeals Committee is unconstitutional and violates the IDAC member’s rights to discharge their functions until the conclusion of their term.

61. Additionally, the Interested Party argues that the unceremonious appointment of the Independent Disciplinary and Appeals Committee, an outfit they claim is foreign to the FKF Constitution, derogates from the procedural and legal requirements provided by the FKF Constitution in the appointment, replacement and tenure of office for members of a standing committee and judicial body.

62. In light of this, the 1st Interested Party prays that the Tribunal holds that the Respondent has acted unconstitutionally and ultra vires to their mandate. They further ask the Tribunal to declare the Independent Disciplinary and Appeals Committee illegal and reinforce the legitimacy of the previously constituted Standing Committees and Judicial Bodies.

iv. The 2nd, 3rd, 4th, 5th And 6th Interested Parties’ Case 63. The 2nd to 6th Interested Parties are standing committees established under the FKF Constitution. Through an oral application made to the Tribunal on 24th May 2022, the parties, through their counsel, requested to be joined as interested parties to the suit.

64. They argue that any orders or directions issued in the Petition herein will directly affect the Applicant’s interests hence the Applicant’s desire to be heard in response to the said petition.

D.Issues for Determination 65. Having carefully read the pleadings and submissions by the parties, the Tribunal finds the following issues arising for determination:i.Whether the Tribunal has jurisdiction to hear this petition.ii.Whether the Respondent ’s decision to proceed with the match fixtures made on 13th May 2022 was ultra vires and against the FKF Constitution.iii.Whether the Respondent ’s decision made on 13th May 2022 violated the Petitioners’ and Interested Parties’ constitutional right to fair administrative action as provided in the Fair Administrative Actions Act.iv.Whether the Football Kenya Federation Transition Committee has functional Standing Committees and Judicial Bodies.v.Orders.

i. Whether the Tribunal has jurisdiction to hear this Petition 66. On the perusal of the pleadings herein, it is noted that the issue of this Tribunal’s jurisdiction has not been raised by any party. Consequently, it can be concluded that the matter is not in contention.

67. Nonetheless, the question of jurisdiction is not foreign to this Tribunal , and in good practice, according to the finding of the Court of Appeal in Carmella Wathugu Karigaca vs Mary Nyokabi Karigaca [1997] eKLR, the Tribunal should canvas the matter whether or not it has been raised in argument.

68. As it is trite, and according to the dictum in Owners of Motor Vessel Lilian “S” v Caltex Oil [1989] KLR 1, jurisdiction provides a judicial body such as this tribunal with the basis upon which its authority can be couched and enforced.

69. Accordingly, the jurisdiction of this Tribunal emanates, primarily, from the provisions of the Sports Act of 2016. Particularly, under Section 58 of the Act which broadly highlights the jurisdiction of the Sports Disputes Tribunal in the following terms: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.

70. It is evident from the pleadings that the Petitioners’ contention emanates from the decision made by the Respondent, a national sports organization according to the definition provided under Section 3 of the Sports Act, an umbrella body responsible for football nationally by virtue of Section 54 (1) of the Sports Act and Gazette Notice No. 7005.

71. Conclusively, the Tribunal is clothed with the jurisdiction to determine and pronounce itself on the issues arising for determination.

ii. Whether the decision made by the Respondent ’s Head of Secretariat on 13th May 2022 was ultra vires and contrary to the FKF Constitution 72. The crux of this Petition is hinged upon the question as to whether the Respondent through its Head of Secretariat, in unilaterally making the decision on 13thMay 2022, acted ultra vires and consequently contrary to the Football Kenya Federation Constitution and principles of fair administrative procedure outlined in the Constitution of Kenya and the Fair Administrative Action Act.

73. The Respondent, at the institution of this petition, was established under Gazette Notice Number 5518 which outlines the mandate of the body as to:a.Ensure that Football Kenya Federation operates within the provisions of the Sports Act;b.Conduct the affairs of the Football Kenya Federation in accordance with the FKF Constitution;c.Co-ordinate and ensure proper running of the FKF operations, including team preparations for local and international sporting events.d.Co-ordinate and facilitate the validation of the draft Constitution of Football Kenya Federation.

74. The appointment of the Respondent, primarily in 2021 through gazette notice no.12374, was to effectively replace the National Executive Committee in its constitution and mandate, extinguishing its member’s term in office. This position was held in Football Kenya Federation & 2 others v Cabinet Secretary Ministry of Sports, Culture and Heritage & 5 others; Kariobangi Sharks Football Club & 7 others (Interested parties) [2021] eKLR.

75. This Tribunal has also held in SDTSC E001 Of 2022 Fortune Ladies FC vs Ali Amor &Anor where it is the position that appointment of the FKF Caretaker Committee and, effectively, all subsequent Committees, does not negate the mandate of the already existing FKF Bodies, specifically the Standing Committees and Judicial Bodies who are the 1st to 6th Interested Parties.

76. Therefore, it is reasonable to conclude that the FKF Transition Committee the Respondent herein, holds and exercises its mandate according to the FKF Constitution in addition to the mandate provided under its establishing gazette notice. Additionally, the Respondent is mandated to execute its duties in consort with the appointed Standing Committees and Judicial Bodies in place, as is provided in the FKF Constitution and the Rules and Regulations governing Football.

77. The FKF Constitution clearly outlines the functions of each standing committee as well as judicial bodies under Articles 46 to 59 and Articles 64 to 67 respectively.

78. Article 48 establishes the Leagues & Competitions Committee which is the FKF Body in charge of organizing leagues and competitions within the FKF.

79. Under the Rules and Regulations governing Football, 2019, the Leagues and Competitions Committee has the authority to organize and administer the various aspects of the leagues and competitions. For instance, under Regulation 2. 7.2, the Leagues and Competitions Committee has the mandate to decide and announce the criteria to be used and the number of clubs to be promoted and relegated at the end of that season as above determined. Under Regulation 3. 1.7 the Leagues and Competition Committee can adjudicate and make pronouncements on teams that fail to honor their league matches.

80. Nevertheless, under Regulation 2. 3 of the Rules and Regulations governing Football of 2019, the National Executive Committee is clothed with the power to set, annually the opening and closing dates for all FKF Leagues and/or Competitions. Additionally, it has power to extend or suspend the season as it deems fit.

81. The rules and regulations provide an outline of the functions of the National Executive Committee and League and Competition Committee. Generally, it can be argued that regarding leagues and competitions, the NEC has a general mandate to govern the running of the leagues and competitions, in a bid to ensure the smooth running of football activities while the Leagues and Competitions Committee has the mandate to administer the day-to-day activities within such leagues and competitions.

82. This is can be seen in Regulation 2. 7.1 which provides that the principles of promotion and relegation shall be determined by the FKF National Executive Committee, while Regulation 2. 7.2 provides that before the start of each season the FKF National Leagues and Competition Committee must decide and announce the criteria to be used and the number of clubs to be promoted and relegated at the end of that season as above determined.

83. To this extent, the Respondent, appointed in lieu of the NEC, is mandated to ensure the smooth running of the affairs of Football Kenya Federation, according to its mandate in Gazette Notice No.5518 and is clothed further with the powers of the National Executive Committee as espoused in the FKF Constitution and Rules and Regulations governing football.

84. Conclusively, it is within the Respondent’s mandate, while ensuring the smooth running of the affairs of the Federation, to determine the suspension and resumption from suspension of league fixtures.

85. This, we believe, was the essence of the letter by the Respondent indicating resumption of league matches.

86. To this extent, the Tribunal is of the view that the decision made by the Respondent herein contested, on 13th May 2022 to allow the continuation of the league matches is within its mandate and therefore not ultra vires.

iii. Whether the decision made on 13th May 2022 violated the Petitioners’ and Interested Parties’ constitutional right to fair administrative action 87. The Fair Administrative Action Act under section 5 provides for procedures to be followed where an administrator makes a decision that is likely to adversely affect the legal rights or interests of a group of people or the general public.

88. It is provided that such an administrator shall:a.Issue a public notice of the proposed administrative action inviting the stakeholders’ views;b.Consider all views submitted in relation to the matter before taking the administrative action;c.Consider all views and material facts; andd.Where the administrator proceeds to make the administrative action proposed:iGive reasons for making such a decision;ii.Issue a public notice specifying the internal mechanism available to the person directly or indirectly affected by his or her action to appeal; andiii.Specify the manner in which the appeal should be lodged.

89. The Petitioners aver that the Respondent’s tenure has been marred by autocratic decision-making without consulting or otherwise notifying interested parties such as the Petitioners and the 1st to 6th Interested Parties.

90. It is trite that prior notice of administrative decisions is a matter of procedural fairness and an important component of natural justice.

91. As espoused in the case of Geothermal Development Company Limited vs. Attorney General & 3 Others [2013] eKLR citing an excerpt from Hilary Delany, Judicial Review of Administrative Action, Thomson Reuters 2nd edition, at page 272, the court notes:“…where no actual hearing is to be held in relation to the making of an administrative or quasi-judicial decision, an individual may be entitled to be informed that a decision which will have adverse consequences for him may be taken and to notification of the possible consequences of the decision.”

92. Consequently, the Respondent was obligated, as an administrative body to issue notice of its intent to continue with the league matches as scheduled in prior fixtures in accordance with the Fair Administrative Action Act and principles of natural justice.

93. It may be argued that the letter issued by the Respondent on 13th May 2022 acted as a notice, however, let it not be in contention that it is not. In its entirety, the letter was a communication of a decision already made and compliance or lack thereof would trigger commensurate consequences such as disciplinary measures.

94. This is evidenced in the Affidavit of David Opiyo Othieno, herein the Chairperson to the 8th Petitioner. In paragraphs 29, 30 and 31, the Petitioner, a football club based in Mombasa County, details how they were unable to honor their league match scheduled on 14th May 2022 in Mumias, Kakamega County after receiving the letter on 13th May 2022.

95. Logically, it cannot be presumed that a team based in Mombasa County can or should be expected, at short notice, to travel a distance of more than 1200 km to honor a match. This cannot be deemed to be right or in the spirit of sportsmanship. Nevertheless, if this were the case, the quality of such a match would negate the need to have it in the first place.

96. Consequently, due to its lack of attendance, the 8th Petitioner was docked 3 points for missing the match out of no fault of their own.

97. The Tribunal avers that a notice of a decision to be made ought to be sufficiently explicit as to its particulars. We wholly associate ourselves with the pronouncements of Justice G Odunga in Republic v National Land Commission & 2 others Ex Parte Archdiocese of Nairobi Kenya Registered Trustees (St. Joseph Mukasa Catholic Church Kahawa West) [2018] eKLR:“In my view, for a notice to be worthy of its purpose, it must not be vague and must not leave room for speculation. If possible, the notice should draw the addressee’s attention to the legal provision, if any, under which it is being issued and even spell out the consequences that would follow non- compliance. It is these particulars that will distinguish a notification of intent from the decision itself. Where therefore the decision is expressed in a manner suggesting that a decision has already been made, such a notice would fail to meet the purpose for which the notice is prescribed. Similarly, a notice that vaguely refers to the complaint without particularising the same and which does not expressly call upon the person to be adversely affected to Respondent thereto cannot in my view amount to an adequate notice.”

98. The Fair Administrative Action Act under section 4 provides that every person has a right to fair administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.

99. It is thus this Tribunal’s opinion that the letter dated 13thMay 2022 was made and issued as an indication of the Respondent ’s already made decision to resume the National Super league matches and cannot be claimed to be notice of the decision.

100. It is also this Tribunal’s opinion that the Respondent had a duty under the Fair Administrative Action Act to provide prior notice to all the interested parties, significantly, the Petitioners and Interested Parties in this suit of its intended decision to resume league matches with particulars of the reasons so decided and a timeline to hear opinions of the affected parties before making its decision.

101. Owing to the evidence adduced and the canvassed statutory provisions and legal precedents, it is the Tribunal’s opinion that the Respondent breached the Petitioners’ and Interested Parties’ rights to fair administrative action by failing to provide adequate notice sufficient with the particulars of the intended decision.

iv. Whether the Football Kenya Federation Transition Committee Has Standing Committees and Judicial Bodies 102. The Petitioners asserts in their pleadings that the Respondent within the period of their tenure has refused to acknowledge the existence of the 1st to 6th Interested Parties who, as the Petitioners assert, are duly appointed FKF Bodies according to the FKF Constitution.

103. This assertion is corroborated by the Supporting Affidavit of Abdi Aziz Osman, who adduces annexure AAO-3, a communique from the FKF dated 11/12/2020 to its members attesting to the appointment of the 1st to 6th Interested Parties.

104. Moreso, under paragraphs 13, 15, 16 and 17 of the Supporting Affidavit outlines Mr. Abdi Aziz Osman’s knowledge of complaints made on cases of poor officiating of matches, security concerns and lack of remuneration of match officials and neglect of training and grading of referees.

105. These functions, as the Petitioners argue, fall within the ambit of the 2nd to 6th Interested Parties, whose position is that their functions have been disregarded by the Respondent consequently leading to the complaints.

106. The 1st Interested Party herein in their Replying Affidavit in support of the petition asserts, in paragraph 36 that the Respondent has been conducting the affairs of the FKF without any functional FKF Bodies.

107. It is further argued, in paragraph 43(c) of the 1st Interested Party’s submissions that the Respondent, in disregard FKF Constitution and the appointment of the 1st Interested Party into office, constituted an Independent Disciplinary and Appeals Tribunal to replace the 1st Interested Party’s mandate.

108. In response to these assertions, the Respondent through its written submissions in paragraph 8 asserts that on 18thMay 2022, it appointed the Standing Committee of the FKF guided by the provisions of Article 30 of the FKF Constitution. This includes the Leagues and Standing Committees whose procedure for appointment is couched on Article 48 of the FKF Constitution.

109. The Respondent further provides in Paragraph 10 of its written submissions that it has submitted to the Petitioners and this Tribunal letters evidencing the appointment of these committees. Consequently, it opposes the assertion by the Petitioners and 1st Interested Party that there are no functional FKF Bodies. 110. The Respondent has, in their submissions, invited the Tribunal to take judicial notice of the smooth running of the National Super League from its commencement to conclusion, dispelling assertions by the Petitioners of the rampant complaints regarding the management of the National Super League and the matches therein.

111. Concurrently, in consideration of these submissions, it is clear that there is a contention as to the facts to be relied on when considering this issue.

112. The Tribunal need not reiterate the well-known maxim augmented in Jennifer Nyambura Kamau v Humphrey Mbaka Nandi NYR CA Civil Appeal No. 342 of 2010 [2013] eKLR that he who asserts must prove.

113. It is clear from the Evidence Act under Section 107 that whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which they assert must prove those facts exist.

114. Appropriately, the Petitioners herein, who sought the indulgence of the Tribunal in their cause are burdened with proving the facts deponed in their pleadings.

115. It is also not lost on the Tribunal the provision of Section 109 of the Evidence Act which provides that the burden of proof to any particular fact lies on the person who wishes the court to believe in its existence.

116. The Petitioner, in discharging their evidential burden, has provided, through the Supporting Affidavit of Abdi Aziz Osman, evidence pertaining to the appointment of the 1st to 6th Interested Parties.

117. In examining the evidence adduced, it is clear that the members of the 1stto 6th Interested Parties were duly appointed on 11thNovember 2020 as evidenced in Annexure AAO-3 of Mr. Abdi Aziz Osman. It is also clear from the Replying Affidavit of Mr. Japheth Munyendo that the members of the 1st Interested Party herein were properly appointed according to the procedures of the FKF Constitution.

118. The FKF Constitution in Article 46 (3) provides that members of standing committees shall be designated for a term of four years. This is a similar timeline provided under Article 64 for Judicial Bodies.

119. The Respondent, conversely, has not adduced any evidence that contradicts the assertions by the Petitioners and neither do they canvass this in their pleadings except through mere denials in their written submissions.

120. Additionally, the Respondent has failed to show to this Tribunal evidence that indicates removal of the members to the FKF Bodies already appointed in 2020 from their positions or vacancy of those positions prior to 18th May 2022.

121. In this regard, it may be concluded that appointments purported to be done by the Respondent on 18th May 2022 were done while the members of the FKF Bodies were still in office and, rightly so, still serving their tenure.

122. The Respondent further asserts that they have tendered to this Tribunal letters showing appointment of standing committees, which appointments were made on 18th May 2022.

123. The Tribunal has neither received nor seen any such letters as referenced by the Respondent s in their pleadings.

124. The Tribunal is alive to its recent determination in Fortune Ladies FC vs Ali Amor &Anor E001 of 2022 wherein the Tribunal intimated that the appointment of a Caretaker Committee, and in the context of this case the Transition Committee, only sought to replace the FKF National Executive Committee and not the FKF Bodies established under the FKF Constitution.

125. It is also the holding of this Tribunal, thus, that the appointment of Football Kenya Federation Transition Committee vide Gazette Notice No. 7005 did not influence the tenure of its Standing and Judicial Committees.

126. Consequently, the 1st to 6th Interested Parties appointed as appointed on 12th November 2020, are and continue to be duly appointed Standing Committees and Judicial Body of the Football Kenya Federation.

E. Orders 127. To summarize therefore, the Tribunal has come to the following conclusions and accordingly orders as follows:i.The decision made by the Respondent herein contested, on 13th May 2022 to allow the continuation of the league matches was within its mandate and therefore not ultra vires;iii.A declaration is hereby issued that the 1st to 6th Interested Parties herein are duly appointed and the current judicial bodies and standing committees of the Football Kenya Federation in so far as their mandate is prescribed under the FKF Constitution;iv.Every party shall bear their own costs.

DATED AT NAIROBI THIS 23RD DAY OF AUGUST,2022. Signed:JOHN M OHAGA, SC; CARB; FCIARB - CHAIRPERSONJ Njeri Onyango FCIArb, - Member