[2022] KESDT 804 (KLR)

Murang’a Sports Excellence Academy t/a Murang’a Seal FC v Cabinet Secretary for Sports Culture and Heritage & 3 others; APS Bomet FC & 5 others (Interested Parties) (Tribunal Case E030 of 2022) [2022] KESDT 804 (KLR) (Civ) (15 November 2022) (Decision)

Neutral citation: [2022] KESDT 804 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Civil

Tribunal Case E030 of 2022

John M Ohaga, Chair, MN Kimani & E. G. Kiplagat, Members

November 15, 2022

Between

Murang’a Sports Excellence Academy t/a Murang’a Seal FC

Petitioner

and

Cabinet Secretary for Sports Culture and Heritage

1st Respondent

Football Kenya Federation Caretaker Committee

2nd Respondent

Football Kenya Federation Transition Committee

3rd Respondent

FKF Transition Committee’s Independent Disciplinary Appeals Committee

4th Respondent

and

APS Bomet FC

Interested Party

Fortune Sacco FC

Interested Party

Zoo Football Limited t/a Zoo FC

Interested Party

Coastal Heroes FC

Interested Party

Shabana FC

Interested Party

Football Kenya Federation Independent Disciplinary Appeals Committee

Interested Party

Decision

A. Introduction I. The Parties 1. The petitioner is a limited liability company incorporated within the Republic of Kenya. It owns and manages a professional football club based in Murang’a County and playing the sport of football in the name and style of Murang’a Seal FC. It is a member of the FKF having its senior team participating at the material time in FKF’s second tier league known as the Football Kenya Federation National Super League (hereinafter referred to as the NSL).

2. The 1st respondent is a Cabinet Secretary nominated by the President of Kenya to run the affairs in the Ministry of Sports, Culture and Heritage.

3. The 2nd respondent was a Caretaker Committee appointed by the Cabinet Secretary in charge of Sports, Culture and Heritage to manage the affairs of Football Kenya Federation exercise of their power under section 54(1) of the Sports Act No 25 of 2013.

4. The 3rd respondent is a Transition Committee appointed by the Cabinet Secretary in charge of Sports, Culture and Heritage to manage the affairs of Football Kenya Federation exercise of their power under section 54(1) of the Sports Act No 25 of 2013 to replace the Caretaker Committee.

5. The 4th respondent was an Independent Disciplinary Appeals Committee constituted by the caretaker committee on May 24, 2022 to handle all disciplinary appeals arising from the transition committee’s decisions.

6. The 1st to 5th interested parties are football clubs registered and taking part in FKF’s second tier league known as the National Super League at the material time.

7. The 6th interested party is an Independent Disciplinary Appeals Committee put in place by the Football Kenya Federation meant to handle appeals from disciplinary decisions ofFKF.

II.Facts 8. Murang’a Seal FC and Zoo FC were scheduled to play a football match as part of the National Super League on January 9, 2022. The match did not proceed as scheduled and the petitioner alleged that there was no ambulance present in the vicinity. They cited this as their main reason for not proceeding.

9. In a letter dated March 14, 2022 from Lindah Oguttu, the secretary to the 2nd respondent, the petitioner was informed that the 2nd respondent were awarding 3 points to Zoo FC and docking 2 goals from the petitioner for refusal to participate in the match.

B. Pleadings And Preliminaries 10. The suit was instituted by way of a petition dated August 25, 2022. The petition was filed simultaneously with a notice of motion under a certificate of urgency seeking the staying the declaration of the champions of the National Super League and restraining the Respondents from running any Kenyan Premier League fixtures/games involving any team from the 2021/2022 National Super League division.

11. The conservatory orders were issued on September 1, 2022 staying the declaration of the 1st interested party as the champions and the 2nd interested party as the 1st runners up of the 2021/2022 National Super League Season.

12. The 2nd and 3rd interested parties entered appearance through a notice of appointment dated September 19, 2022.

13. The Attorney General entered a notice of appointment on October 24, 2022 and grounds of opposition stating that the cause displays no reasonable cause of action against the 1st respondent.

C. Substantive Claims I. The Petitioner’s case 14. The petitioner contended that the 3rd respondent should not have been allowed to take part in the National Super League by dint of a FIFA decision relegating them to division one.

15. The petitioner was scheduled to play Zoo FC on January 9, 2022 as part of the National Super League 2021-2022 Season. The match did not take place. The petitioner alleges that they had dutifully travelled to Kericho to honour the match fixture. They claimed that there was no ambulance and that it arrived 45 minutes later. They implied that the match did not proceed as a consequence of the absence of ambulatory services.

16. They received a letter from the 2nd respondent’s secretary awarding the 3rd interested party three points and docking two goals from them. The petitioner claimed that they were victims of boardroom points and that the table did not reflect sporting merit. They claim that two decisions issued in a summary of decisions by the 4th respondent collectively determined that they could not be promoted to the top tier league.

17. They claimed that the decision was arrived at without fair hearing being accorded to them to prove their case as well as that the decisions issued in summary should be dismissed. They asserted that the decisions were unfair, illegal and unconstitutional and sought that they be declared null and void.

II. The respondents case 19. The 1st respondent only put in grounds of opposition stating that there was no reasonable cause of action displayed against them.

20. The other respondents did not file their responses.

III. The interested party’s case 21. The 2nd and 3rd interested parties put in an appearance.

22. There was no response from any interested party.

D. Issues For Determination 23. Having considered all the facts and the pleadings herein, the tribunal has framed the following issues for determination:i.Whether this tribunal has jurisdictionii.Whether the suit displayed any cause of action against the 1st respondentiii.Whether Zoo Kericho FC should have been allowed to play in the NSL 2021-2022 Seasoniv.Whether the petitioner’s failure to honour the match appointment was justifiablev.Whether the 1st, 2nd and 3rd respondents exercised their discretion judiciouslyvi.Whether the points should be awarded to the petitioner and the goals should be reinstatedvii.Whether the decisions rendered by the 4th respondent were proper

E.Analysis I. Whether this tribunal has jurisdiction 24. Section 58 of the Sports Act provides: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; andc.appeals from decisions of the Registrar under this Act.

25. We are persuaded that the ruling made by the 3rd respondent herein falls within the ambit of a disciplinary decision and therefore accords the tribunal jurisdiction to hear and determine the matter.

II. Whether the suit displayed any cause of action against the 1st respondent 26. The 1st respondent opposed the suit on the ground that there is no reasonable cause of action against it. It is trite law that at the first instance, the petitioner’s ability to sue is unrestricted and they can cast a wide net and leave the determination as to whether the judicial body was properly joined in the suit to the judicial body.

27. The panel is inclined to agree with the 1st respondent’s ground of opposition. The Cabinet Secretary for the Ministry for Sports, Culture and Heritage’s mandate extended only to the appointment of the committees that were managing football in the country. Since the committees are legally in place, the Cabinet Secretary’s role in the running of league championships was only relegated to a supervisory one.

28. The committees’ actions are largely autonomous and the tribunal is moved on the basis of the autonomous decisions of the 3rd and 4th respondents. Emphasis should be placed on the fact that the 1st respondent is not the originator of the decisions.

29. Whether the decisions of the autonomous body are quashed or upheld the 1st respondent will not be obligated to implement the orders given by the tribunal.

30. The import of the above is that the 1st respondent herein is a passenger to these proceedings and has no direct claim against it and can do nothing to enforce the outcome. The High Court at Nakuru reached a similar conclusion in Simon Ogada Andiwo v Safaricom Plc & 15 others [2021] eKLR“From this and the plaintiff’s main prayers, it is evident that the defendants are right in seeking their being expunged from this suit. There has not been established from the pleadings a connection between them and these events and any final orders that this court may make in this suit as drawn. There would no reasonable ground to keep them in it.”

31. Therefore, we find that there is no reasonable cause of action framed against the 1st respondent.

III. Whether Zoo Kericho FC should have been allowed to play in the NSL 2021-2022 Season 32. Briefly, the FIFA disciplinary committee made a decision on April 23, 2021 meting out two separate punishments to Zoo FC including expulsion from the league and relegation. The committee further clarified that the relegation was not just from the top tier league to the immediate lower league, it stated that the relegation was to the division one league. Zoo FC filed an appeal on August 2, 2021 against the FIFA committee ruling where an unsuccessful application for stay of execution was filed. The appeal was dismissed on September 16, 2021 by the FIFA appeals committee.

33. The FKF included Zoo FC in the National Super League for the 2020/2021 and 2021/2022 season to which Muhoroni Youth and the National Super League Clubs Committee appealed the decision contending that Zoo FC had been illegally listed and participated in the league. The Independent Disciplinary Appeals Committee (IDAC) held in a ruling dated 29th day of July 2022 that:“The Federation expunge all matches played by Zoo FC and all points earned or lost by the said team on the League Table as the team featured illegally in the Super League for the 2021/2022 season.The Federation update the league table with all the expunged matches and disseminate the updated league table to all the teams in the Super League.”

34. We are persuaded that the Independent Disciplinary Appeals Committee had the right of it and the Federation should expunge all matches played by Zoo FC. The Football Kenya Federation is an associated member of the International Organization in the form of FIFA.

35. The FKF constitution defines FKFas an Associative body and that it is associated with FIFA. Article 1(3) of the FKF Constitution provides that:“Football Kenya Federation is a member of FIFA, CAF and CECAFA.”

36. Further, article 2(e) and (f) of the Constitution makes outlines the objectives of FKF and that they are:“e)to respect, and prevent any infringement of, the Constitution, regulations, directives and decisions of FIFA, CAF CECAFA and of FKF as well as the laws of the game and to ensure that these are also respected by its members;f)to promote integrity, ethics and fair play with a view to preventing all methods or practices such as corruption, doping or match manipulation, which might jeopardise the integrity of matches, competitions, players, officials and members or give rise to the abuse of Association Football, futsal or beach soccer.”

37. An official FIFA decision (Decision FDD-6516) was rendered on April 23, 2021 against Zoo FC for match manipulation. An application for stay of execution was made by Zoo FC and was determined to be unsuccessful on August 13, 2021. The correct position of the law therefore was that Zoo FC was relegated to division one regardless of whether there was an appeal. Further, the appeal was determined on September 16, 2021 well before the first matchday of the National Super League which occurred on November 6, 2021.

38. We are therefore inclined to agree with the Independent Disciplinary Appeals Committee that the FKF acted unconstitutionally in including Zoo FC in the National Super League for the 2021-2022 season. In the panel’s considered view, any action made by Zoo FC after the decision in participation of the 2021-2022 league season was void ab initio and should not have been allowed to take place.

39. What remedy can the tribunal apply to the league then now that Zoo FC should not have been in the league? We agree further with IDAC that the appropriate remedy would be to expunge all matches played by Zoo FC and restore all opposition to a point as if no league match was played. We shall leave it to the current body in charge of running sports affairs to compute and update the league table and determine who shall be promoted to the Kenya Premier League based on sporting merit.

IV. Whether the petitioner’s failure to honour the match appointment was justifiable 40. The Football Kenya Federation drafted a Constitution endorsed by the National Executive Committee on November 17, 2017 and ratified at the General Assembly of November 18, 2017 and shall come into force on February 1, 2018.

41. Article 39 (1)(i) of the Football Kenya Federation(FKF) Constitution provides that:“The National Executive Committee shall draw up regulations governing the conditions of participation in and the staging of competitions organised by the Association”

42. Football Kenya Federation Rules and Regulations Governing Kenyan Football (2019) were subsequently enacted. Rule 2. 9.8 of the Rules provides that:“The FKF shall cater for all the match day logistics for the play off matches which shall include hire of venue, provision of ambulance and security services and payment of match officials.”

43. The petitioner herein was scheduled to play against Zoo FC on January 9, 2022 as part of the National Super League 2021-2022 season. The match did not take place as scheduled. The petitioner has alleged that there was a valid reason as to why the match appointment was not honoured in the shape of lack of ambulatory services. They alleged that there was no ambulance at the site of the venue at 3pm and that an ambulance was only driven to the site at 3. 45 pm. Paragraph 67 and 68 of their petition stated the following:“67. That by 3. 00 pm, there was no ambulance in site within the stadium contrary to the safety and security requirements provided under rule 3. 4.5 of the rules and Regulations Governing Kenyan Football 2019 and the directive by the FKF Leagues and Competitions Committee that before a game commences there must be a fully equipped ambulance provided by the home team.

68. By 3. 40 pm there was still no ambulance in site at the venue of the game and only a purported ambulance (a vehicle marked “ambulance”) was driven into the venue at around 3. 45 pm, therefore the match could not take place as scheduled.”

44. A long-standing maxim that has now been codified in the laws of evidence is ‘he who alleges must prove’. Section 107(1) of the Evidence Act provides as follows:Whoever desires any tribunal to give judgment as to any legal right or liability dependent on the existence of a fact which he asserts must prove that those facts exist.

45. Further, section 109 of the Evidence Act states:The burden of proof as to any particular fact lies on that person who wishes the tribunal to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person.

46. The petitioner herein, Murang’a Seal FC, wanted the tribunal to believe their own assertion that there was no ambulance provided for the match and that was the reason why they did not fulfil their obligations. However, they have not attached any proof that there was no ambulance. What is to stop any team feeling the pressures of attending a league game from alleging the same and refusing to participate?

47. This tribunal is alive to the provisions of rule 10. 2 of the rules 2019 regarding protests. Rule 10. 2.2. 2.2 provides that:“Any other contravention of the FKF statutes and/or these rules by a team, team official, player or match official (offending party) who participated in the said match, the protesting team must ensure that the exact nature and cause of the protest is furnished in writing to the referee in the presence of the senior assistant referee, and is counter-signed by the opposing team official, immediately prior to the kick-off of the match, or on the field of play at any time before the final whistle. The opposing team official and the match official are obligated to sign the protest. Failure to do so will attract disciplinary sanctions.”

48. This tribunal has not been directed towards any protest furnished in writing to the referee at any time immediately prior to kick off of the match. We find it very curious that the party that was most irked by the football match not proceeding did not take any measures to safeguard their interest despite knowing the sanctions that would come their way if they did not proceed with the match.

49. The petitioners have alleged that an ambulance had arrived 45 minutes late relative to the kick-off time. How were they in possession of this information? Was 45 minutes enough that they should have left the stadium? Did the match official decide that the match could not go on given that the ambulatory service came late? Were the teams precluded from playing the match later than the scheduled time due to no fault of any party?

50. This matter is of a civil nature and as such we are persuaded that the correct balance of making rulings and determinations is that of on a balance of probability. We find it probable that the petitioner knew about the late entry of the ambulance because they were still in the vicinity of the stadium. In the event that they had left, 45 minutes was not enough time for them to have completely left the stadium’s location and rendered the match incapable of occurring.

51. Rule 3. 2 of the rules Governing Football Rules 2019 provides for changes in match scheduling. Rule 3. 2.1 and rule 3. 2.2. provide that:“3. 2.1. If any doubt arises as to whether a match can take place as scheduled, the club concerned must immediately notify the FKF National Leagues and Competitions Committee. The committee shall then decide if the match is confirmed as scheduled or if any change has to be made concerning the venue, date or kick-off time.

4. 2.2 The referee shall decide if a match cannot start or if a match which has started must be abandoned. This decision is made after consultation with the match commissioner. A club which refuses or fails to respect the instructions of the referee to start or resume play or in any other way abandons a match shall forfeit the match”

52. We are of the opinion that there was doubt as to whether a match can take place as scheduled due to the lack of ambulatory services. The question that then arises is whether the FKF National Leagues and Competition Committee were informed. We are alive to the decision of this Tribunal in SDTSC E021 of 2022 - Migori Youth FC v FKF Transition Committee wherein the Tribunal ruled that the Transition Committee replaced the National Executive Committee and the rest of the Committees are in place legally. The committee was therefore functional and would have been able to receive any complaint and would rule in exercise of their discretion as to whether the match shall proceed.We find that there was no complaint as the allegations were simply made and no evidence was tendered to prove otherwise by the Petitioners.

53. We are guided by the decision of Justice J Mativo (as he then was) in Hellen Wangari Wangechi v Carumera Muthoni Gathua [2015] eKLR who observed as follows:“It is a well-established rule of evidence that whoever asserts a fact is under an obligation to prove it in order to succeed. As observed above, the appellant made allegation in the plaint, hence she was under an obligation to support the allegation. For example, since there was a denial in the defence, it was necessary to adduce evidence to show how the amount of Kshs 316,000/- was arrived at.”

54. The Court of Appeal buttressed this position of the law of evidence in Jennifer Nyambura Kamau v Humphrey Mbaka NandiNyr CA civil appeal No 342 of 2010[2013]eKLR as follows:“We have considered the rival submissions on this point and state that section 107 and 109 of the Evidence Act places the evidential burden upon the appellant to prove that the signature on these forms belong to the respondent. Section 107 of the Evidence Act provides that “whoever desires any Tribunal to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” Section 109 stipulates that the burden of proof as to any particular fact lies on the person who wishes the tribunal to believe in its existence. If an expert witness was necessary, the evidential burden of proof was on the appellant to call the expert witness. The appellant did not discharge the burden and as section 108 of the Evidence Act provides, the burden lies on that person who would fail if no evidence at all were given on either side.”

55. Further, there was no evidence tendered that they approached the referee who would have acted as an agent of the federation and have consulted with the match commissioner and exercised judicial discretion in determining whether the match should have proceeded. Contrary to what the petitioner has alleged, the match referee can determine whether a match cannot start by dint of rule 3. 2.2 of the 2019 rules and regulations. In the circumstances, I find it very hard to be swayed in my reasoning with the petitioner’s unsubstantiated averments.

56. Rule 2. 9.8 of the Rules and Regulations governing Kenyan football supraprovides that:“TheFKF shall cater for all the match day logistics for the play off matches which shall include hire of venue, provision of ambulance and security services and payment of match officials.”

57. The wording of the regulations made by the Football Kenya Federation Executive Committee do not leave any doubt as to whom the responsibility lies with for ensuring that there are ambulances in the stadium. The petitioners herein have suggested to the tribunal that Zoo FC should have been the party to provide the ambulatory services. However, we find this suggestion to be an attempt at misdirecting the court.

58. The petitioners herein have attached several provisions of the Rules and Regulations (2019) and quoted from several provisions of the same that we find it highly unlikely that they would not have apprehended the provisions of Rule 2. 9.8. We were not informed of the facts in the AFC Leopards v Ulinzi Stars Case and are therefore not competent to comment on it. We are bound to determine the matters before this tribunal and on the evidence that has been tabled before it.

59. I am not convinced through the lack of evidence supporting their claim that there were no ambulatory services that Murang’a Seal FC were proper in not honouring their match appointment. I find that there are sufficient avenues they could have pursued and several paths they could have used to prove that indeed they suffered injustice. A party that suffers injustice will so often move mountains and be relentless in their claim, which traits I find conspicuously absent in the present case. A party should always endeavour to prove the claims that they have made in order to prove their case through strong evidence that shifts the tribunal towards their side. The tribunal was not moved through any evidence regarding the lack of ambulances and as such will not hold in favour of unsubstantiated allegations on a piece of paper.

60. However, I shall clarify for the avoidance of doubt in light of the previous ruling as to whether Zoo FC should have participated in this particular season that even though I am not convinced that there was no evidence in support of their valid reason for non-participation, the petitioner has escaped such sanctions by virtue of the nullification of Zoo FC. In line with the previous directive, the league table shall be updated as if Zoo FC did not participate in the league.

V. Whether the 1st, 2nd and 3rd respondents exercised their discretion judiciously 61. Rule 9. 1.2 of the 2019 rules expressly make provision for what is to be construed as misconduct on the part of a team. Rules 9. 1.2. 5, 9. 1.2. 7 and 9. 1.2. 8 classify the relevant instances of misconducts for the purposes of this case:“9. 1.2. 5. It fails to comply with or contravenes any provision of these rules, theFKF Statutes,and/or any other relevant FKF prescripts, the CAF Statutes and the FIFA Statutes,and as well as the Laws of the Game;

9. 1.2. 7. It fails to fulfill a fixture for which a date and a venue have been fixed byFKF;

9. 1.2. 8. It fails to comply with any lawful order or instruction made by any FKF judicial body, an official of FKF, and/or match officials;”

62. Rule 9. 2 of the 2019 rules make provision for decisions on misconduct. Rule 9. 2.1 provides that:“9. 2.1. Any act of misconduct or offence committed during a National League or competition must be dealt with by the FKF National Disciplinary Committee. Any act of misconduct or offence committed during County League or competition must be dealt with by the relevant County Disciplinary Committee.”

63. The match in question was scheduled to take place in the National Super League. The correct construction of these rules would mean that the decision for whether there was misconduct would be dealt with the FKF National Disciplinary Committee. Rule 9. 2.3 provides that:“9. 2.3 Upon receipt of any reported act of misconduct or offence the relevant Disciplinary Committee will as soon as is practicable set the case for hearing. The committee, upon hearing all parties involved and giving them an opportunity to call witnesses and give evidence in support of their cases, has the power;

64. 2.3. 1 to temporarily suspend or permanently ban from all or specified activities organized or authorized by the FKF;

65. 2.3. 2 to fine; 3. to order payment of compensation;

4. to censure;

5. to temporarily close or permanently ban a playing field;

6. to order payment of costs related to a case; and or

7. to require fulfillment of any other or further conditions as it shall deem fit to order.”

66. This tribunal is alive to the rules of natural justice and the principle of audi alteram partem. The Constitution of Kenya 2010 also makes explicit provisions protecting the right to a fair hearing. It is clear that the rules were also enacted with the same in mind. In this instance, Murang’a Seal FC have alleged that they were not accorded a fair chance to be heard and that the decision was rendered without due regard for their representation and a hearing.

67. We are persuaded by the reasoning of this tribunal in AFC Leopards SC & another v Football Kenya Federation [2021] eKLR wherein the tribunal stated:“49. The right to be heard is a central tenet of the rules of natural justice as seen from all these important provisions above. It is our observation that FKF failed to give the petitioners an opportunity to be heard and the sanctions meted out were unmerited. No less than rule 3. 1.7 of the FKFRules and Regulations Governing Kenyan Football provide for this. FKF ought to have allowed the Petitioners to respond to the charges before sanctioning them. It is therefore our considered view that the sanctions meted against the petitioners were unjustified, illegal, irregular and null and void ab initio.”

68. We are inclined to agree that on the balance of probability, there was no fair hearing. The letter from Lindah Oguttu as the CEO from the FKF Caretaker Committee looks to have been written unilaterally and not as part of a decision that has been taken after the hearing of witnesses. The caretaker committee was bound to operate under the auspices of the FKF Constitution as well as the 2019 Rules. They were therefore supposed to exercise their discretion after the hearing of all parties in an attempt to exercise their discretion judiciously.

69. It is regrettable that they have not filed a response to the petition as they would have provided a better answer as to whether there was a hearing and the outcome of the same. As it is however, I am inclined to find fault in the unfettered exercise of their discretion in applying the penalty provided for in rule 3. 1.6.

70. If a proper hearing had been conducted, the petitioner would have probably made their case and if aggrieved, lodged an appeal before coming to the court. I can therefore not fault them for pursuing justice through the court. In my view this suit would have been unnecessary at this particular stage if only the 2nd respondent would have taken its time and heard the petitioner. The decision by the 2nd respondent was in contravention with the FKF Constitution, the rules and regulations of 2019 and can therefore not stand. The sanctions imposed against the petitioner were unjustified, illegal, irregular and null and void ab initio.

VI. Whether the points should be awarded to the petitioner and the goals should be reinstated 71. The petition brought before us sought to determine the correctness of the decisions rendered against them by the FKF caretaker committee. One of their prayers was to invite the tribunal to order the 2nd respondent to reinstate their three points and two goals as docked by the committee.

72. We have already determined that the decision by the 2nd respondent was illegal and unconstitutional by virtue of it not according a fair hearing to the petitioner. I concur with them to that regard. However, I am not convinced that we should order the 2nd respondent to restore their docked goals and award them three points based on the evidence that has been tabled before us.

73. I have considered the merits of the petitioner’s case and have accorded them the fair hearing that they needed. However, when given an opportunity to ventilate their claims and substantiate the reasons for non-participation, it appeared that the vexed petitioner could not come up with evidence. This was despite the caretaker committee not being present to defend their side of the story.

74. As has been stated before, it was disappointing that given such a free run, the petitioner could not prove by way of any evidence affidavit or otherwise that there were no ambulatory services present at the facility. They also could not prove that they talked to the match official cordially in seeking for the provision of these services and that they could not proceed with the match. Additionally, they have not demonstrated their willingness to participate even when the van finally arrived and the match was poised to continue.

75. For the avoidance of doubt, the lack of ambulatory services is a valid reason for seeking a match to be postponed. Players have suffered injuries on the field of play that require the immediate assistance of a medic or even worse, players having heart problems and collapsing on the field of play. Ambulances should therefore be one of the primary essentials before taking to the field of play. However, the Rules and Regulations of 2019 and the FKF Constitution make various avenues for the resolution of this problem, including pre-match briefings and the liaising with match officials and the match commissioner for a valid reason.

76. If Zoo FC had legally participated in the league, the decision should have stood docking the goals and the forfeiture of goals. However, in line with our previous directive, the league table shall be updated as if Zoo FC did not participate in the league.]

VII. Whether the decisions rendered by the 4th respondent were proper 77. It is a trite principle in law that courts are bound by the pleadings that are before it. The High Tribunal of Kenya at Migori in Daniel Otieno Migore v South Nyanza Sugar Co Ltd[2018] eKLR stated that:“It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings.”

78. Having looked at the pleadings and the evidence tendered in support, this tribunal could only comment on the issues that have been raised before it. The evidence that has been tendered in support of the allegation that the decisions of the 4th respondent are improper are below par.

79. For one party to seek a declaration that the decisions were improper they needed to have demonstrated any such impropriety. We shall not belabour the point that whoever alleges must prove. However, there has been no evidence that has been tendered in support of the claim and we are therefore not persuaded that the decisions as a whole should be quashed.

80. Similarly, we must stress that the other decisions part of the report have not been tabled before this court. They have not opted to pursue proceedings before this tribunal and to make a blanket decision would be prejudicial to the aggrieved party as we appreciate that decisions are to be made on a case to case basis.

F. Disposition 81. This tribunal has jurisdiction to hear and determine this matter as accorded by section 58 of the Sports Act.

82. Zoo FC should not have participated in the National Super League in the 2021-2022 season and all matches it participated in should be expunged and an updated league table issued.

83. There was insufficient evidence in support of the reason for the petitioner's participation which was the lack of ambulatory services. The petitioner had indeed failed to honour the match appointment on January 9, 2022.

84. The decision by the Head of Secretariat, the FKF Caretaker Committee communicatedvide a letter dated March 14, 2022 was illegal, unfair, irregular, null and void for having been reached without due consideration to the rules of natural justice.

85. The points for the match should not be awarded to the petitioner however, the goals should be reinstated. The correct position would be that Zoo FC was never part of the league and should not affect the standings.

86. There has not been enough evidence in support of the claim that the decisions were improper and that they should be quashed.

87. In light of the foregoing the tribunal makes the following orders:i.The petition dated August 25, 2022 partly succeeds.ii.All matches that Zoo FC has participated are expunged. No points should be awarded to any team for win or draw.iii.The FKF and the transition committee should update the league table with the correct standings reflecting sporting merit.iv.The decision by the Head of the Secretariat, the FKF caretaker committee communicated on March 14, 2022 is hereby quashed and rendered void ab initio.v.Each party to bear their own costs.

DATED AT NAIROBI THIS 15TH DAY OF NOVEMBER, 2022JOHN M. OHAGA, SC; C.ARB; FCIARB CHAIRPERSONIn the presence of:1. Mary N Kimani, Member2. E. Gichuru Kiplagat, Member