[2022] KESDT 794 (KLR)

Muhoroni Young v Amour (Sued as the chairman of the FKF Caretaker Leagues and Competitions Committeee & 2 others; Muhoroni Youth (Interested Party) (Appeal E003 of 2022) [2022] KESDT 794 (KLR) (Civ) (8 November 2022) (Decision)

Neutral citation: [2022] KESDT 794 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Civil

Appeal E003 of 2022

E. G. Kiplagat, Chair, A.M Owinyi & Gabriel Ouko, Members

November 8, 2022

Between

Muhoroni Young

Applicant

and

Ali Amour (Sued as the chairman of the FKF Caretaker Leagues and Competitions Committee

1st Respondent

FKF and Leagues Committee

2nd Respondent

Office of the Attorney General

3rd Respondent

and

Muhoroni Youth

Interested Party

Decision

The parties 1. The applicant is a football club duly registered in Kenya under the Sports Act and is affiliated to the Football Kenya Federation (FKF). It participates in the FKF National Division One League.

2. The 1st and 2nd respondents are officials of FKF.

3. The 3rd respondent is established under article 156 of the Constitution of Kenya.

4The interested party is a football club affiliated to FKF.

The case 5. The applicant filed a motion under certificate dated February 3, 2022 praying for among other prayers for orders prohibiting the 1st and 2nd respondents from commencing or proceeding with FKF National Division One League 2021/2022.

6. They claimed that the pplicant is a junior team of the Muhoroni Youth Club and that they formally acquired the slot for Kisumu United formally known as Western Stima on or about November 5, 2021.

7They noted that the chairman of NEC Kisumu wrote a letter confirming the said acquisition to FKF on October 10, 2021 and that the FKF competition department acknowledged and approved the take over and change of name from Kisumu United to Muhoroni Youth by replying their confirmation of their participation in the National Super League.

8. The applicant further stated that upon acquisition of Kisumu United slot they wrote a letter to FKF to change the name of Kisumu United to Muhoroni Young and that the slot they were holding in the Division 1 to be renamed to Muhoroni Young. They also claimed that they wrote another letter dated December 13, 2021 to FKF.

9. They also stated that the transition was smooth until the caretaker committee took over and omitted their name from the fixtures. They claim to have written to them on January 26, 2022 and the 1st and 2nd respondents have never responded at all and that they have contractual obligations with their players.

10. They also noted that by laws of football they are allowed to have a junior team in this case the applicant which serves as a feeder team to the senior team.

11. The applicant filed an amended application dated September 12, 2022 abandoning 7 earlier prayers and sought to solely rely on and submit on prayer number 6 of his application to wit:“That the applicant be without any prejudice whatsoever included in Division One League Fixtures for the 2022/23 season...”

The response 12. The respondent filed a preliminary objection dated February 15, 2022 stating that the tribunal lacks jurisdiction as the applicant had not exhausted the internal dispute resolution mechanisms of FKF before filing the instant claim. However, the tribunal on March 29, 2022 ordered the parties to proceed before the FKF Caretaker Leagues and Competitions Committee for adjudication.

13. Despite several attempts at resolving the dispute as directed by the tribunal the parties never made any progress and consequently the Tribunal set the matter down for hearing on October 4, 2022.

14. The 1st and the 2nd respondents filed their replying affidavit dated September 23, 2022 sworn by 2nd respondent in opposition to the applicant’s application dated September 12, 2022. They stated that regulation 2. 7.3 of the FKF Rules and Regulations (2019) provides that promotion and relegation shall normally be automatic and shall be governed by additional requirements other than performance on the field of play.

15. They further stated that promotion, retention and relegation is based on sporting merit and participation in the league. They further stated that for a team to be promoted to play in the FKF Division One League, the winner in each respective zonal region shall be subjected to play-off competition to determine the final club to be promoted to the FKF National Division One League.

16. Moreover, the averred that the applicant did not participate in the Zonal League and therefore they note that the allegations that the 1st and 2nd respondents omitted the applicant’s name in the Division One League is unmerited.

17. They stated again that regulation 6. 3.1 of the FKF Rules and Regulations provide that each club that has an academy or youth team is allowed to register an unlimited number of players from the youth or academy side to the roaster of senior team.

18. They indicated that the 2nd respondent neither has in its possession any records on Muhoroni Youth Club roaster which indicates that the applicant as a feeder team nor has the applicant produced the roaster or league table showing that the applicant participated in the zonal matches to earn a place at the National Division One League.

19. They also noted that the applicant failed to provide details on the proof of ownership and registration in support of the allegations that it is a feeder team to Muhoroni Youth as required under regulation 6. 3.1. 2 which provides that a senior team shall be allowed to register a youth or academy team provided that the youth team shares the same name as the senior team and shares the same ownership as the senior team.

20. The 1st and 2nd respondents noted that on March 29, 2022 the head of the FKF transitional committee sent out a correspondence to the applicant giving a clear position of the applicant’s team and further requesting for further details including change of name, registration details to enable the club’s involvement in the Division One Slot.

21. They prayed that the application be dismissed with costs.

Hearing 22. The matter was heard on September 26, 22 and the parties were ordered to file written submissions. The applicant filed written submissions dated October 11, 2022 while the 1st and 2nd respondents filed written submissions dated October 18, 2022.

23. When the matter came up for mention on October 11, 2022 to confirm whether parties had filed written submissions, the tribunal directed that the ruling shall be reserved for November 1, 2022.

Discussion 24. Having taken into account the parties’ pleadings written and oral submissions, the tribunal states as follows:

25. The jurisdiction of this tribunal stems from section 58 of the Sports Act which provides as follows:“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.”

26. Section 59 of the Sports Act states further that:“The tribunal may, in determining disputes apply alternative dispute resolution methods for sports disputes and provide expertise and assistance regarding alternative dispute resolution to the parties to a dispute.”

27. Earlier in the proceedings the 1st and 2nd respondents raised a challenge on jurisdiction on the basis that the applicant had not in the first instance taken the dispute before the FKF Caretaker Leagues and Competitions Committee for adjudication before moving the tribunal.

28. However, the tribunal on March 29, 2022 gave the parties an opportunity and ordered the parties to proceed before the FKF Caretaker Leagues and Competitions Committee for adjudication. No meaningful progress or outcome came out of this exercise as it became apparent to us that the 1st and 2nd respondents did not or were not able to provide a forum for redress as ordered and therefore the tribunal assumed jurisdiction.

29. We have invariably stated in past decisions that where there is no clear pathway to a dispute resolution or where it becomes apparent to us that a party has made every effort to seek redress through an internal dispute resolution process without success then we will assume jurisdiction. Article 48 on access to justice, article 50 on fair hearing and article 47 on fair administrative action are provisions in the Constitution of Kenya and are very imperative to us as they form an integral part of all our proceedings. This is what we said in SDT No 5 of 2019 West Kenya FC v Francis Oliele & Another:“”….Where we sufficiently believe that the path for seeking redress for an aggrieved party is not clear like the instant case it behoves us as a Tribunal to intervene. Article 48 of the Constitution of Kenya requires of us to ensure access to justice to all persons….”

30. We now proceed to determine the second issue that is at the centre of the application before us which issue is that the Applicant be without any prejudice whatsoever included in Division One League Fixtures for the 2022/23 season.

31. The Applicant wrote to the League and Competitions Manager of FKF through a letter dated November 8, 2021 notifying the 1st and 2nd Respondents that that their division 1 slot would be occupied by their youth team, Muhoroni Young, the Applicant herein.

32. The 1st and 2nd Respondent responded vide their letter dated March 29, 22 to the effect:“…..Kindly note that promotion of clubs is governed by the performance on the field of play and based on sporting merit and participation of a club in the League. We note that Muhoroni Young Football Club has not participated in any regional league organized by FKF to warrant the club to be promoted to division one.Further, we note that Muhoroni Young FC has not provided details of proof of ownership, registration, change of name or fixtures indicating that the club has participated in the FKF League.Accordingly, we request that the club adhere to the requirements of change of name, registration and thereafter participation in the regional matches to enable the club’s involvement in the division one slot.”

33. Both parties rely on rule 8. 1.6 of the FKF Rules and Regulations governing Kenyan football. We will publish the rule here for purposes of our discussion. It provides that:“No team will be allowed to sell its slot in a league and relocate its home base unless such a move is sanctioned by the FKF National Executive Committee on recommendation of the FKF National Leagues & Competition Committee and Respective FKF Branch under whose jurisdiction the team is based. It must be noted that a club’s entitlement to participate in a league will depend principally on sporting merit. The sale of a franchise which is to the detriment of a league championship and results in changing headquarters, changing the name and/or stakeholders and furthermore is to the detriment of the integrity of sports competition must be prohibited. A decision to decline the sanctioning of the sale can be appealed against to the FKF Appeals Committee. (the appeals board).” Emphasis Ours.

34. It is clear from this provision that no team shall be allowed to sell its slot in a league and relocate its home base unless such a move is sanctioned by the FKF National Executive Committee. Indeed, the applicant has not demonstrated to us that it has received recommendations from the respective FKF branch and the FKF National Leagues and Competition Committee as well as the sanctioning or approval of the National Executive Committee. As much as the applicant’s contention is that a club can have more than one team in each of the FKF competition under rules 8. 2.1 and 8. 2.2, we submit that this does not obviate the need to first comply with rule 8. 1.6 above.

35. We also agree with the 1st and 2nd respondents that club entitlement to participate in a league is principally dependent on sporting merit as per our reading of rule 8. 1.6. We do not find any supporting evidence by the applicant to anchor their claim. In fact, the letter dated March 29, 2022 by the 1st and 2nd respondent requested the applicant to provide change of name or fixtures indicating that the club has participated in the FKF League and this was never provided as the applicant had not participated in any regional league organized by FKF to warrant the club to be promoted to division one.

36. Besides, ule 8. 1.5 also provides that no individual or group or legal person(s) shall have control in more than one club. Rule 2 defines a member as any legal or natural person that has been admitted into FKF membership in accordance with its constitution. By asking for registration details in the letter of March 29, 2022 ,the 1st and 2nd respondents were within their right because how else would they have known the registration status of the club and secondly how would they have been able to establish whether the individuals who own the applicant have control in more than one club under rule 8. 1.5?

37. The upshot of this is that we find no merit in the application dated February 3, 2022 as amended and in particular prayer 6.

Conclusion 38. It is therefore in consideration of this, as well as the parties’ submissions that the Tribunal makes the following orders:a.The application dated February 3, 2022 as amended and in particular prayer 6 is struck out;b.Each party shall bear its own costs.

DATED AT NAIROBI THIS 8THDAY OF NOVEMBER, 2022. GICHURU KIPLAGAT, PANEL CHAIRPERSONALLAN OWINYI, MEMBERGABRIEL OUKO, MEMBER