[2025] KESDT 46 (KLR)

Mohammed v Bandari Football Club (Cause E032 of 2024) [2025] KESDT 46 (KLR) (14 January 2025) (Ruling)

Neutral citation: [2025] KESDT 46 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Cause E032 of 2024

Gabriel Ouko, Chair, A.M Owinyi & Benard Murunga Wafula, Members

January 14, 2025

Between

Sheikh Taher Mohammed

Claimant

and

Bandari Football Club

Respondent

Ruling

Description Of Parties 1. The Claimant/Applicant is an adult male Kenyan and a former employee of the Respondent.

2. The Respondent is a football club domiciled in Mombasa and a former employer of the Claimant.

Brief background 3. The Claimant herein approached the Tribunal with a Memorandum of Claim dated 14th October 2024, where he claimed that the Respondent has wrongfully terminated his contract of employment.

4. The Claimant had been engaged by the Respondent under a two-year fixed term contract, which he claimed had been executed with mutual agreement, good faith, and clear understanding of its stipulated duration.

5. Until his termination which he terms as unfair, the Claimant claimed to have been receiving a monthly gross salary of Kshs. 420,834.

6. The Claimant averred that the Respondent, in an unprecedented and shockingly arbitrary manner, verbally terminated his employment on 9th October 2023, sans any reasonable, morally justifiable, or legally valid explanation.

7. He cited the particulars of the unfair termination as;a.Unilaterally and arbitrarily terminating the Claimant’s contract of employment, in flagrant violation of the sanctity of the agreed term, without the shadow of a bona fide or reasonable cause.b.Denying the Claimant a justification rooted in reason, moral rectitude, and the law for such abrupt termination of his contract of employment.c.Dishonoring the agreed fixed term of the contract, causing significant mental, emotional and financial distress to the Claimant.

8. The Claimant stated further that the unfair, wrongful, and grossly unlawful termination has had a monumental impact on his financial position, future career trajectory, and mental well-being.

9. He therefore claims a total of Kshs. 14,308,356 particularized as;I.(Kshs.420,834 x 21 months = Kshs.8,837,514II.One month’s salary in lieu of notice = Kshs.420,834III.Compensation for unfair termination of employment (Kshs.420,834 x 12 months)= Kshs.5,050,008

10. Consequently, the Claimant made the following prayers as remedy for the unfair/wrongful termination;a.A declaration that the termination of the Claimant’s employment was unfair, wrongful and unlawful, constituting an egregious violation of his statutory rights and contractual terms.b.The sum of Kshs. 14,308,356 as particularized above with interest at Court rates from the date of filing this Suit, as a rightful compensation for the monetary loss suffered due to the unfair termination.c.Exemplary damages for the mental agony, distress and reputation damage suffered by the Claimant due to the Respondent's breach of Articles 25, 27 and 41, of the Constitution of Kenya, 2010. d.Costs of this Suit, including but not limited to legal costs, court fees, and any other ancillary costs borne by the Claimant.e.Any other relief or further order as may be just, expedient and necessary in the circumstances of this Suit.

11. In response, the Respondent filed a notice of motion Application under a Certificate of Urgency and Preliminary Objection dated 18th November 2024, in which it averred that;a.The Honourable Tribunal should stay the proceedings and refer the matter to arbitration in compliance to Section 6 of the Arbitration Act, which provides that;“A court before which proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than the time when that party enters appearance or otherwise acknowledges the claim against which the stay of proceedings is sought, stay the proceedings and refer the parties to arbitration unless it finds—that the arbitration agreement is null and void, inoperative or incapable of being performed; or that there is not in fact any dispute between the parties with regard to the matters agreed to be referred to arbitration.”b.The Honourable Tribunal lacks jurisdiction to entertain this suit because the dispute arose out of a Contract of Employment dated 1st July 2023, which under clause 8(b) and (c) subjected disputes arising from the contract to the Football Kenya Federation (FKF) for arbitration and if the dispute is not resolved by FKF, the same shall be settled by arbitration in accordance with the Arbitration Act (1995) Laws of Kenya or any statutory modification or re-enactment thereof for the time being in force or in accordance with FIFA regulations.

12. Further, the Respondent filed Written submissions dated 3rd December 2024 in support of the Application and the Preliminary Objection in which they emphasized that the Tribunal lacked jurisdiction to hear and determine the matter, as it was against the doctrine of exhaustion.

13. The Respondent contents that the parties had not exhausted the Alternative Dispute resolution mechanisms as per the contract.

14. The Respondent thus made a prayer that the matter be stayed by the Tribunal and the same be referred to the Football Kenya Federation for arbitration as provided under clause 8 of the contract, Article 69 and 70 of the FKF Constitution and Section 6 of the Arbitration Act.

15. The Claimant filed Written Submissions and a Replying Affidavit dated 17th December 2024 in response to the Preliminary Objection and the Application respectively. It was the Claimant’s submission that despite sending a Demand Letter to the Respondent, in a bid to resolve the dispute, the Respondent had not taken any steps to respond to the same, about three months later.

16. In his Replying Affidavit, the Claimant posited further that the Tribunal’s jurisdiction is statutory and is set out at Section 58(b) which provides that the Tribunal shall determine other sports related disputes that all parties to the dispute agree to refer to the Tribunal and that the Tribunal agrees to hear;

17. The Claimant also cited Article 50 of the Constitution which entitles every person to fair hearing, and accordingly, deponed that the Tribunal qualifies as an independent Arbitration Tribunal as contemplated in article 69 of the FKF Constitution.

Issues 18. Having carefully considered the pleadings and evidence adduced by both parties, the Tribunal finds the salient issue for determination to be;i)whether the Sports Disputes Tribunal has jurisdiction to hear and determine this matter; andii)Whether the Preliminary objection raised by the Respondents should be upheld.

Whether the Sports Disputes Tribunal has jurisdiction to hear and determine this matter. 19. Pursuant to section 58 of the Sports Act, the Sports Disputes Tribunal has jurisdiction to 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 (Sports) Act.

20. Before delving into the analysis, the Tribunal wishes to state that it is subject to the Constitutional value of access to justice as provided for under Article 48 that;“The State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice.”

21. Section 58 of the Sports Act, therefore, ought not be interpreted narrowly, but should be looked at from the very purpose of the establishment of the Sports Disputes Tribunal and the value of access to justice.

22. In the case of Charles Wambugu Kariuki v National Olympic Committee of Kenya, Sports Disputes Tribunal Nairobi, Appeal No. 2 of 2015, it was held as follows:‘’We hold the view that this section gives room to the parties who would have had other avenues but opt as a final resort, to choose the tribunal as the ultimate arbiter, to get this opportunity.’

23. The rationale in this argument is that the discharge of justice is the foremost and ultimate goal of tribunals and courts in the country.

24. Moreover, delimiting the nature of sports disputes that can be heard by the Tribunal, Section 58 (b) of the Sports Act provides that the Tribunal handles ‘sports-related disputes’. This poses the question on whether a dispute that arises out of an employment contract between a sports organization and an athlete or a coach is a sports related dispute.

25. In expounding further on the extension of its jurisdiction, the Sports Disputes Tribunal held in Maqbull Abdi Karim -v- Gor Mahia Football Club, Sports Disputes Tribunal Nairobi Appeal No. 6 of 2018, that “Generalia Specialbus non derogant’’ translating loosely to ‘a general law does not prevail over a special law’

26. Essentially, the Sports Act which is a special law for all matters sports has dominance over any other law in matters of sports.

27. The Tribunal, guided by the Constitutional value of access to justice, emphasizes a broad interpretation of its jurisdiction under Section 58 of the Sports Act. This approach ensures that athletes and other stakeholders have access to a specialized and efficient dispute resolution mechanism.

28. By upholding its authority to adjudicate sports-related matters, including employment disputes, the Tribunal promotes fairness, equity, and the integrity of the sports system in Kenya.

29. It is for this reason that the Tribunal finds the claim of lack of jurisdiction by the Respondent as a narrow interpretation of Section 58 of the Sports Act.

Whether the Preliminary objection should be upheld. 30. Having established that the jurisdiction of the Sports Disputes Tribunal is broader than what is listed under Section 58 of the Sports Act, it is imperative to highlight that the Tribunal is nonetheless, alive to the doctrine of exhaustion of remedies and the requirement of non-interference of internal dispute resolution mechanisms by judicial bodies.

31. It is common ground that Clause 8 of the Contract of employment between the Respondent and the Claimant provided that;“8 Dispute Resolutiona.All disputes relating to this contract shall be raised with the management and all efforts put into trying to resolve the matter at club level in a reasonable time.b.If the dispute is not resolved in clause 8 (a) above the matter will be referred to FKF for arbitration.c.Any dispute that is not resolved under Clause 8 (a) or (b) above shall be settled by arbitration in accordance with the Arbitration Act (1995) Laws of Kenya or any statutory modification or re-enactment thereof for the time being in force or in accordance with FIFA Regulations.”

32. The Respondent submits that despite the provision, the Claimant did not approach the Respondent with a view of settling the dispute.

33. However, as already demonstrated, the Claimant, in his response averred that he indeed approached the Respondent with a demand letter in a bid to resolve the dispute, but the Respondent had failed to respond to the same, hence leaving the Claimant with no option but to escalate the same to the Sports Disputes Tribunal.

34. It is common practice for parties to a contract to include an Internal Dispute Resolution Mechanism (IDRM) clause as a form of redress in case a dispute arises between the parties.

35. However, it is imperative to note that for an internal dispute mechanism to be explored, it must be proven by the party alleging that it is indeed existent and practically sound.

36. While faced with the same scenario in Daglas Mokaya Oyioka V Bandari Football Club and Football Kenya Federation SDT Petition Number E025 of 2023, this Tribunal made it crystal clear to the Respondent, (being the same Respondent in this suit), that; -“In evaluating whether the claimant adhered to the Internal DisputeResolution Mechanism (IDRM) within the Respondent’s jurisdiction, we emphasize the principle that local remedies must be exhausted, provided they are accessible and available for utilization.”

37. The Tribunal in the Daglas Mokaya (Supra) case, Cited Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR, where it was stated as follows;-“However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R. v Independent Electoral and Boundaries Commission (I.E.B.C.) & Others ex parte The National Super Alliance Kenya (NASA) (supra), after exhaustively reviewing Kenya’s decisional law on the exhaustion doctrine, the High Court described the first exception thus:What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it.” (Underlining ours)

38. To reinforce this fact further, in the case of Maqbull Abdi Karim -v- Gor Mahia Football Club clarified that:‘Where a remedy provided to an athlete is ineffective or ineffectual or involves a resort to a municipal court, the Tribunal will accept jurisdiction in order not to leave an athlete or sportsman without a remedy or otherwise offend the principles which most international sporting organizations have put in place which prohibits sporting disputes from being ventilated in courts of law.’

39. The above position was also taken by the Supreme court in Abidha Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) [2023] KESC 113 (KLR)Where it was stated;‘’Section 9(2) of the Fair Administrative Action Act, we must add, provides that where there exist internal mechanisms for the resolution of a dispute, the court will not review the administrative action until the internal dispute mechanism has been exhausted. As we had earlier stated, in our view, that fact notwithstanding, there is nothing that precludes the adoption of a nuanced approach, that safeguards a litigant’s right to access justice while also recognizing the efficiency and specificity that established alternative dispute resolution mechanisms can offer. That is also why Section 9(4) of the Fair Administrative Action Act creates the exception that exhaustion of administrative remedies may be exempted by a court in the interest of justice upon application by an aggrieved party.’’

40. Courts have applied this reasoning in resolving disputes before them, where Internal Dispute Resolution Mechanisms proved to be either slow or even futile.

41. The High Court in the case of Republic v Kenya Revenue Authority Ex Parte Style Industries Limited 2019] eKLR held that“Where an internal remedy would not be effective and/or where its pursuit would be futile, a court may permit a litigant to approach the court directly.”

42. Moreover, in William Odhiambo Ramogi & 3 others v Attorney General & 6 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR the High Court (Achode (as she then was), Nyamweya (as she then was), & Ogola, JJ) stated:“In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.”

43. Essentially, the Claims raised by the claimant over violation of his constitutional rights under article 25, 27 and 41 cannot be said to be ‘mere boot traps’ or merely framed in Bill of Rights language, but a clear volition of the same, hence the enforcement of his rights cannot be barred by the doctrine of exhaustion.

44. As already stated, it is not in dispute that the contract between the Claimant and the Respondent provided for arbitration by FKF as the first port of call for dispute resolution and arbitration according to the Arbitration Act of 1995 as the appeal mechanism.

45. However, the Tribunal cannot not lose sight of the fact that courts and Tribunals are the guardians of justice as was as held in the decision Synergy Industrial Credit Ltd V Cape Holdings Ltd (2019) KESC 12 (KLR), where it was stated as follows;“In interpreting the arbitration law, therefore, one should never lose sight of the purpose of the enactment of the Arbitration Act, 1995 and in addition, the fact that the Constitution of Kenya, 2010 in article 159(2)(c) enjoins courts to be guided by the principles of alternative forms of dispute resolution such as arbitration. There is also no doubt that arbitration is an attractive way of settling commercial disputes by virtue of the perceived advantages it brings beyond what is generally offered by the normal court processes which are often characterised by formalities and delays. In addition, while it is quite clear that the arbitration regime is meant to ensure that there is a process distinct from the courts, of effectively and efficiently solving commercial disputes, the law also recognizes that such a process is not absolutely immune from courts intervention. This is because the courts of law remain the ultimate guardians and protectors of justice and hence, they cannot be completely shut off from any process of seeking justice.”

46. The Tribunal expresses its concern that arbitration as both an original and appellate mechanism for dispute resolution may be a hindrance to access to justice by Claimant, being a former employee of the Respondent, due to the financial inequalities between the two parties.

47. The constitution of Kenya 2010, provides under article 159 (2) (d) that;in exercising its judicial authority, the courts and tribunals shall be guided by the following principles-(a)....(b)justice shall not be delayed(c)alternate forms of dispute resolution including reconciliation, mediation and traditional dispute resolution mechanisms shall be promoted, subject to clause 3(d).....(e)....

48. Clause 3 as per (c) quoted in the preceding paragraph then provides that-Traditional dispute resolution mechanisms shall not be used in a way that–(a)contravenes the Bill of Rights;(b)is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or(c)is inconsistent with this Constitution or any written law.

49. Being subjective to the constitutional values stated above, the Tribunal must take every necessary step in ensuring the highlighted values are met to the latter.

50. The Tribunal also wishes to strongly associate itself with the findings in Okeyo v Board of Directors HHI Management Service Limited & another (Cause E970 of 2023) [2024] KEELRC 1006 (KLR) (6 May 2024) where it was held that;‘Prospective employees are seldom involved in the negotiation of terms of employment other than salary and allowances. The document was drawn by the employer in its language and inserted terms and clauses formulated in its words and prospective employees are in most or all cases eager to sign the dotted line to secure employment to return the favour.The Arbitration Act was principally intended to resolve commercial disputes, as opposed to employment disputes. Incorporation of arbitral clauses in employment contracts is atypical and underlines the reality of the unequal bargaining power between the employer and the employee. Such clauses were imposed on employees by employers.

51. In any event, the Tribunal is convinced that the Claimant in fact, issued a demand letter to the Respondents in a bid to resolve the dispute, but the Respondent’s indolence in response forced the Claimant to forward the matter before the Tribunal.

52. Furthermore, the Respondents will not suffer any prejudice should the matter proceed to be heard by the Tribunal. On the contrary, it is to the advantage of both parties, bearing in mind the guiding principles of the operationalization of the Sports Disputes Tribunal as provided for under article 159 2 (d) of the Constitution of Kenya, 2010.

53. The Tribunal, in its considered view, holds that being an ultimate guardian of justice, it cannot give a deaf ear to a prejudiced litigant on the basis of his non-exhaustion of internal remedies or promotion of Alternative Dispute Resolution which have first not been proven to be practical and favourable and secondly, which have the likelihood of living the litigant in a limbo, contrary to the spirit of statute and the constitutional value of Access to justice.

Conclusion 54. Having analyzed the issues above, the Tribunal pronounces itself and make orders as follows:

55. With regard to the Respondent’s argument that the tribunal lacks jurisdiction to entertain the matter due to non-exhaustion of the internal mechanism, The Tribunal finds that:a.The jurisdiction of the Tribunal extends far beyond the narrow interpretation of Section 58 of the Sports Act andb.Internal mechanism provided by the contract being arbitration, may be an impediment to justice and fairness on the part of the employee

56. Moreover, the Tribunal emphasizes that being guided by the principle of access to justice as provided for under article 48 and 159 (2) (d) of the Constitution of Kenya, it has the responsibility to uphold the same.

57. The Preliminary Objection dated 18th November 2024 is therefore, hereby dismissed with no orders as to costs.

DATED AND DELIVERED AT NAIROBI THIS 14TH DAY OF JANUARY 2025GABRIEL OUKO - (PANEL CHAIR )ALLAN OWINYI - (MEMBER)BENARD WAFULA MURUNGA - (MEMBER)