[2023] KESDT 389 (KLR)

Muruah & 3 others v Cheboi Ouma & Associates Advocates & 17 others (Tribunal Case E019 of 2023) [2023] KESDT 389 (KLR) (Civ) (1 August 2023) (Decision)

Neutral citation: [2023] KESDT 389 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Civil

Tribunal Case E019 of 2023

E. G. Kiplagat, Chair, Benard Murunga & Peter Ochieng, Members

August 1, 2023

Between

Edwin Muruah

1st Petitioner

James Muriithi Mugo

2nd Petitioner

Pauline Awuor Awange

3rd Petitioner

Alfred Simiyu

4th Petitioner

and

Cheboi Ouma & Associates Advocates

1st Respondent

Kenya National Paralympic Committee

2nd Respondent

Sports Registrar

3rd Respondent

James Akama

4th Respondent

Ronald Milare & 13 others

5th Respondent

Decision

1. E. Gichuru Kiplagat – Panel Chairperson

2. Benard Murunga - Member

3. Peter Ochieng – Member

Appearances 1. The Petitioners are represented by Ms Njagi Advocate.

2. The 1st ,2nd ,4th ,5th,6th,7th,8th,9th ,10th,11th,12th,13th,14th,16th,17th & 18th Respondents are represented by Mr.Obura Advocate.

3. The 3rd Respondent is represented by Mr. Munene Advocate.

4. N/A by the 15th Respondent.

The Parties 1. The Petitioners describe themselves as adults of sound mind and citizens of Kenya resident in Nairobi County.

2. The 1st Respondent is a law firm established in Kenya and carrying on legal practice.

3. The 2nd Respondent is registered as an umbrella sports organization under the Sports Act, laws of Kenya.

4. The 3rd Respondent is established in section 45 of the Sports Act.

5. The 4th Respondent is described as an adult of sound mind and a citizen of the Republic of Kenya.

6. The 5th to 18th Respondents are described either as elected officials following the 2nd Respondent’s elections held on 26/05/2023 or interim officials holding office on a temporary basis with the 2nd Respondent.

The Case 7. The Petitioners have approached the Tribunal vide their petition dated 01/06/2023.

8. The Petitioners claimed that on 26/05/2023 the 2nd Respondent held its elections where all its affiliate federations participated but the petitioners were dissatisfied with manner in which the elections were conducted which they claim was in disregard of the Constitution of Kenya, the rule of law, national values and principles of good governance and the 2nd Respondent’s constitution.

9. They further noted that the 4th and 15th to 18th Respondents were elected unfairly, unprocedurally and unlawfully and should not be recognized as office bearers if the 2nd Respondent.

10. They also noted that the tribunal in SDTSC NO. E034 OF 2022 pronounced itself on how to conduct elections of 26/05/2023 but that the Respondents failed to follow this Tribunal’s directions.

11. They noted that the 2nd Respondent did not fully comply with the delegate nomination requirement and that the Respondents allowed members without good standing such as Para Volleyball Federation to participate in elections.

12. The Petitioners also claim that there were various other illegalities committed by the 1st,2nd,3rd,4th,15th to 18th Respondents such as allowing the Kenya Curling Federation nominee who is the 13th Respondent here to participate in the elections yet he had done his 8 year term and unlawfully barring the 1st Petitioner from participating in the elections.

13. The Petitioners also allege that there was no AGM conducted before the elections as required and that there were no minutes to that effect. They also claim that during the elections there were no observers present while agents of some candidates were also barred from accessing the voting rooms.

14. They also noted that the hiring of the law firm that oversaw the elections was not properly done as it was not backed by the necessary quorum of the 2nd Respondent.

15. The Petitioners pray for:a.A declaration that the elections of the 5th to 14th Respondents as held on 26th May,2023 be declared null and void.b.A declaration be made that non-compliance with the law, irregularities and failure to follow prescribed procedures was so substantial and significant that the elections held were unfair,unprocedural,opague and are hereby nullified and a fresh election be conducted.c.That the 2nd and the 15th Respondent be compelled to give certified copies of the minutes of the AGM if at all it was done.d.That the status quo of the officers holding office at KNPC be maintained until fresh elections ordered within 21 days in accordance to the 2nd Respondent’s constitution.e.That in the alternative the interim officers holding the KNPC office continue to do so until the elections are done afresh.f.A declaration that the 1st Respondent be barred from conducting elections for and on behalf of the 2nd Respondent.g.That the 1st Respondent be declared unfit to oversee the elections on account of impartiality, incompetence, unprocedural disqualification of nominees and non-adherence to the 2nd Respondent’s constitution, its by-laws and directions of this honourable tribunal.h.An order do issue prohibiting the 2nd Respondent from procuring a law firm to conduct elections. The 2nd Respondent to involve stakeholders while deciding who will manage its elections as contemplated in SDTC E034 of 2022. i.A declaration that the 1st Petitioner be allowed to participate in the fresh elections.j.Costs of the petition and any other relief.

The Response 16. The Respondents in response filed a notice of preliminary objection dated 16/06/2023 together with written submissions dated the same day. The main and sole ground of the objection is that the jurisdiction of this Tribunal has been improperly invoked against the doctrine of exhaustion contrary to the mandatory provisions of Chapter 10(1) & (2) of the 2nd Respondent’s constitution, which states:“All disputes arising between KNPC members and the KNPC shall be referred to an Arbitration Committee appointed by the Executive Committee and confirmed by the General Assembly within 30 days.”

17. The Respondents pray that:a.The Notice of Preliminary Objection dated 16/06/2023 be allowed.b.The Notice of Motion and Petition dated 01/06/23 be struck out.c.That the costs of this Application and Petition be borne by the Petitioners.

Hearing 18. The Tribunal mentioned the matter on 13/06/2023 and rescheduled it for hearing for 27/06/2023. On 27/06/23 the parties indicated that they had filed their written submissions and requested for a decision. However, the Tribunal has noted that only the 2nd Petitioner filed a replying affidavit dated 26/06/2023 in response to the objection. The rest of the Petitioners did not file any response to the objection. The Tribunal directed that its decision will be delivered on 01/08/2023.

19. The Respondents in their written submissions relied entirely on the contents of the objection save to add that they relied on the case of Mukisa Biscuit Manufacturing Limited v. West End Distributors Limited [1969]EA 699 stating that their objection fits the definition of the court as it’s a challenge on jurisdiction that is purely a point of law issue.

20. They also relied on this Tribunal’s decision of Fortune Ladies FC v. FKF Caretaker & Leagues Committee and Others as consolidated with Young Boys FC v. FKF Caretaker and Leagues Committee & Others where the Tribunal said that it will not assume jurisdiction where an internal mechanism has not been exhausted by the parties.

21. The 2nd Petitioner filed a replying affidavit in response to the objection. He did not however, indicate whether he was filing the affidavit on behalf of the other three Petitioners. We therefore did not get to benefit from the response of the three.

22. The 2nd Petitioner noted that while all disputes arising between members of the 2nd Respondent and the 2nd Respondent ought to be referred to the Arbitration Committee which is to be appointed by the Executive committee and confirmed by the General Assembly this election dispute is not between KNPC and its members.

23. The 2nd Petitioner also noted that since the last elections were held there has never been an Arbitration Committee formed in accordance with the KNPC Constitution which formed part of the reasons of the Petitioners to move to this Tribunal.

24. The 2nd Petitioner also raised an issue of biasness before the Arbitration Committee since the interim committee members who would have formed the Arbitration Committee were part of the nominees in the elections held.

25. The 2nd Petitioner therefore prayed that the objection be dismissed with costs.

Determination 26. We have taken into account the parties’ pleadings and written submissions and the Tribunal determines as follows:

27. The jurisdiction of this Tribunal stems from section 58 of the Sports Act that 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; and(c)appeals from decisions of the Registrar under this Act.”

28. The Respondents have raised an objection to our jurisdiction on the basis that the 2nd Respondent’s constitution requires that any dispute between it and its members should first be resolved by the Arbitration Committee. Chapter 10(1) & (2) of the 2nd Respondent’s 2022 constitution that the main parties have relied on here establishes the Arbitration Committee and states as follows:“All disputes arising between KNPC members and the KNPC shall be referred to an Arbitration Committee appointed by the Executive Committee and confirmed by the General Assembly within 30 days.”

29. The case that is widely quoted that has set out what test to apply when determining jurisdiction is the case of Mukisa Biscuits Manufacturing Co Ltd v West End Distributors [1969] EA 696 Sir Charles Newbold JA stated that:“…a preliminary objection consists of a point of law which has been pleaded or which raises by clear implication out of the pleadings and which if granted as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or plea of limitation or submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration….it raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” (Emphasis Ours).

30. We find that the objection meets the Mukisa Biscuits test as it touches on the jurisdiction of this Tribunal. The question of jurisdiction was determined in the celebrated case of Owners of The Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd[1989] KLR 1 where the Court stated that:-“Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of Law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

31. John Bacroft Saunders in a treatise headed Words and Phrases Legally Defined-Volume 3: I-N the Author states at page 113 the following on the issue of jurisdiction:-“By jurisdiction is meant the authority which the Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the Statute, Charter or Commission under which the Court is constituted, and may be extended or restricted by the like means. If no restrictions or limits is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the nature of actions and matters of which the particular Court has cognizance or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior Court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the Court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the Court or tribunal has been given power to determine conclusively whether the facts exists. Where a Court takes it upon itself to exercise a jurisdiction which it does not possess its decisions amounts to nothing. Jurisdiction must be acquired before Judgment is given.”

32. It is clear to us that the 2nd Respondent’s 2022 constitution under Chapter 10(1) & (2) that all disputes arising between KNPC members and the KNPC shall be referred to an Arbitration Committee appointed by the Executive Committee and confirmed by the General Assembly within 30 days.

33. We have said time without number that where an internal mechanism exists the Tribunal will hesitate to invoke its jurisdiction under section 58 of the Sports Act unless such internal mechanism of a sports organization has been exhausted. In our most recent decision SDTSC Petition No.E016 of 2023 Samson Cherop V. Nick Mwendwa & Others we said:“In construing the provisions of section 58 of the Sports Act, it must be restated that the jurisdiction of the Tribunal is of an appellate nature. It follows that the Tribunal can only be seized of a matter upon dissatisfaction of a party by the decision of a sports organization…In the event that the Petitioners and 6th Respondents are dissatisfied by the decisions of the FKF Appeals Committee, they may approach this this Tribunal under the provisions of Section 58 of the Sports Act.”

34. The Court of Appeal in Speaker of the National Assembly v. James Njenga Karume,Civil Application No. NAI 92 of 1992 eKLR the court said that:“In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”

35. The Tribunal in the Samson Cherop above quoting with approval Mombasa High Court Constitutional Petition No.159 of 2018 As Consolidated With Constitutional Petition Number 201 of 2019 William Ramogi & Others v Attorney General & Others stated that:“The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside court.”

36. We find that this case is not properly before us. The Petitioners have prematurely invoked the Tribunal’s jurisdiction instead of first invoking the jurisdiction of the Arbitration Committee as set out under Chapter 10(1) & (2) of the 2nd Respondent’s constitution. Mere apprehension alone that the Arbitration Committee is not in place without empirical evidence and without any real demonstrable attempts at exhausting that mechanism cannot stand.

37. On the 2nd Petitioner claim that this election dispute is not between KNPC and its members, we have this to say. This assertion can only be tested through evidence. As noted by the court in the Mukisa Biscuit Case above this is a matter in controversy and cannot be raised if any fact has to be ascertained.In any event we cannot say more as we are divested of jurisdiction at this point in time.

38. The Tribunal’s cardinal objective is to inculcate proper sports governance in the sports industry as we have always said. Helping sports organizations built, harness and maintain internal disputes resolution structures is certainly consistent with this solemn goal.

Conclusion 39. It is therefore in consideration of this, as well as the parties’ submissions that the Tribunal makes the following orders:a.The preliminary objection dated 16/06/2023 is hereby allowed;b.The Petition and Notice of Motion dated 01/06/2023 is hereby dismissed;c.Each party shall bear its own costs;d.Orders accordingly.

DATED AT NAIROBI THIS 1ST DAY OF AUGUST,2023. .......................................................GICHURU KIPLAGAT, PANEL CHAIRPERSON........................................................BENARD MURUNGA, MEMBER........................................................PETER OCHIENG, MEMBER