[2024] KESDT 117 (KLR)

Mwabindo & 20 others v Nabwire & 3 others (Tribunal Case E045 of 2023) [2024] KESDT 117 (KLR) (Civ) (13 February 2024) (Decision)

Neutral citation: [2024] KESDT 117 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Civil

Tribunal Case E045 of 2023

E. G. Kiplagat, Chair, MN Kimani & Peter Ochieng, Members

February 13, 2024

Between

Suleiman B Mwabindo

1st Appellant

Zachel Murila

2nd Appellant

Basil Mwakulomba

3rd Appellant

Mohammed Hassan

4th Appellant

Samwel Mwangemi

5th Appellant

Gamaliel Mwarabu

6th Appellant

Abass Mghendi

7th Appellant

Boniface Mwakima

8th Appellant

Simeon Mkala

9th Appellant

Peter Mwakungu Waduu

10th Appellant

Moses Nyange

11th Appellant

Chrisine Mwalimo

12th Appellant

Rophus Mwadime Wuganga

13th Appellant

Johnson Senja Wache

14th Appellant

Zablon Mwanyumba

15th Appellant

Ali Mwang’ombe

16th Appellant

Fredrick Mwambanga Mwandoe

17th Appellant

Joseph C.B.Kina

18th Appellant

Henry Mwanzala

19th Appellant

Michael Kombe Kenga

20th Appellant

Basil Kiung Mwakilomba

21st Appellant

and

Doreen Nabwire

1st Respondent

James Mbaraka Okoyo

2nd Respondent

Dick Arudo

3rd Respondent

Naftali Aseka

4th Respondent

Decision

Hearing 15th December,2023 Panel1. E. Gichuru Kiplagat – Panel Chairperson2. Mary Kimani - Member3. Peter Ochieng – Member

Appearances 1. The Appellants by Mr. Ochieng Advocate for Ken Ochieng & Co. Advocates.

2. The 1st Respondent is represented by Mr. Muhuyu Advocate for Kirimi Kinoti & Co. Advocates.

3. The 2nd - 4th Respondents are represented by the firm of Busaidy Mwaura Ouma & Co. Advocates.

The Parties 1. The 1st – 12th Appellants claim to hold various positions as officials/board of Mwatate United Football Club Youth (also known as Mwatate United Football Club) as elected by the membership and stakeholders of the club. Their role they contend is to run the day to day management of club. The rest of the Appellants claim to hold other positions in the Club

2. The 1st Respondent is described as the Head of the FKF Leagues and Competitions and that the appeal is lodged against her in that capacity and as an authorized representative of FKF League and Competitions Committee.

3. The 2nd- 4th Respondents are former Chairman, Current Chairman and Current Secretary General of Dimba Patriots FC respectively.

The Case 4. The Appellants have approached the Tribunal vide their Memorandum of Appeal, a Certificate of Urgency and a Notice of Motion all dated 01/11/2023.

5. The Appellants claimed that the 1st and 2nd Respondents’ actions in and email dated 05/09/2023 approved and condoned and effected changes in the management of Mwatate United Football Club in line with a merger or combination with the take-over, acquisition or purchase by Dimba Patriots FC without the knowledge and or consent of the Appellants and without public participation in contravention of Rules 8. 1.5,8. 1.6,8. 1.8,8. 1,9. 2,8. 1.9. 3 and 8. 1.9. 4 of the FKF Rules and Regulations Governing Kenyan Football 2019 and the Mwatate United Football Club’ constitution.

6. The Appellants also claim that the 3rd and 4th Respondents without the consent and knowledge of the Appellants bought Mwatate United Football Club and mergered or purchased it in favour of Dimba Patriots FC.

7. The Appellants submit that Rule 8. 1.5 of Rules and Regulations Governing Kenyan Football,2019 provides that no individual or group or legal person shall have control of more than one Club. The Appellants further contend that Rule 8. 1.6 of Rules and Regulations Governing Kenyan Football,2019 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 the recommendations of the FKF National Leagues and competitions Committee and the respective FKF Branches under whose jurisdiction the team is based.

8. The Appellants also relied on Rules 8. 1.7 which provides that any club being sold and relocating will be relocated to its current county or FKF Branch League,8. 1.8 that provides that no club shall be permitted to change its name save with prior written permission of the FKF National Executive Committee on the recommendations of the FKF National Leagues and Competitions Committee, Rule 8. 1.9. 2 no club,Director,official or player in the FKF Leagues and Competition may directly or indirectly be a member of another participating in the FKF Leagues and Competition and Rule 8. 1.9. 3 no Director,Club,official or player in FKF Leagues and Competitions may directly or indirectly may have any capacity whatsoever in the management or running or coaching or administration of another club participating in the FKF Leagues and competition.

9. The Appellants further aver that Rule 10. 3.4 prescribe procedure for lodging an Appeal with the FKF Appeals Committee. Rule 10. 3.4. 1 states that such an appeal must be lodged in writing within 72 hours of receipt of the written disciplinary hearing decision and that under Rule 10. 3.4. 2 the Appellant must lodge all the relevant documents including grounds for appeal and pay Kshs.100,000 as appeal fees and a decision made within days after appeal as been received by FKF as per Rule 10. 3.4. 6

10. The Appellants note that the ruling/decision of 05/09/2023 by the 1st Respondent went against the principles of fair hearing/natural justice as the Respondents were not given an opportunity to be heard.

11. The Appellants claim that having been aggrieved by the decision of 05/09/2023 they duly filed an appeal on 08/09/2023 as Football Kenya Federation Appeals Committee Appeal No.3 of 2023 which has hitherto not been heard having been past the 30 day window period within which to make a determination.

12. In summary the Appellants pray for among others:a.Appeal be allowed with costs.b.A declaration be and is hereby issued that the 1st and 2nd Respondents’ actions approving and condoning and effecting changes in the management of Mwatate United Football Club in line with a merger or combination with the take-over, acquisition or purchase by Dimba Patriots FC without the knowledge and or consent of the Appellants and without public participation is in contravention of Rules 8. 1.5,8. 1.6,8. 1.8,8. 1,9. 2,8. 1.9. 3 and 8. 1.9. 4 of the FKF Rules and Regulations Governing Kenyan Football 2019 and the Mwatate United Football Club’ constitution and an order of a permanent injunction again the two from carrying out these actions.c.A declaration be issued against the 3rd and 4th Respondents that selling Mwatate United Football Club to Dimba Patriots FC and without the consent and knowledge of the Appellants participation is in contravention of Rules 8. 1.5,8. 1.6,8. 1.8,8. 1,9. 2,8. 1.9. 3 and 8. 1.9. 4 of the FKF Rules and Regulations Governing Kenyan Football 2019 and the Mwatate United Football Club’ constitution and an order of a permanent injunction again the two from carrying out these actions.d.An order against the 1st Respondent for the refund of Kshs.100,000/=.e.Any further relief the Tribunal deems fit.

The Response by the 1st Respondent 13. The 1st Respondent filed a replying affidavit dated 04/11/2023 in her answer to the appeal. She states that she is the Head of the FKF Leagues and Competitions and is well versed with the facts of this appeal and duly authorized by the Leagues and Competitions to swear the affidavit on its behalf.

14. She stated the Appellants were given an opportunity to be heard by the Leagues and Competitions before the Leagues and Competitions decision of 05/09/2023. She notes that on 21/08/2023 they received an email from James Mbaraka Okoyo informing them of change in the management of the club. She stated that Mr. Okoyo attached a letter dated 16/08/2023 and an email dated 21/08/2023.

15. She states that there they were cautious about Mr.Okoyo’s representations as they also had received information from the Appellants that they were the new officials of the club. The 1st Respondent claims to have brought this to the attention of the Appellants and Mr Okoyo via an email dated 24. 08. 2023.

16. The 1st Respondent further noted that the two sides were brought together for adjudication of the dispute surrounding the change in management of the clubs before the Leagues and Competition Committee as per copies of WhatsApp screenshots and the parties appeared before it in 1st September 2023 but the parties failed to agree and requested FKF to make a decision. She relied on minutes of that day filed with the Tribunal. A decision she said was arrived at on 05. 09. 2023 based on the club’s constitution.

17. She depones that the club’s constitution provides at Chapter 15 that elections shall be held every 4 years through secret ballot and that the quorum for such election must be at least 75% of the members. She contends that no changes could have been made in the manner suggested by the Appellants. The Appellants did not also comply with Rule 8. 1.10 of the Rules and Regulations Governing Kenyan Football that required clubs to observe their constitution that all actions by the Appellants are illegal, null and void abinitio.

18. She further notes that the bonafide officials of the club are James Mbara Okoyo as Chairman, Patricia Chao Mwashighidi as Treasurer and Beatrice Matunda as Secretary.

19. The Respondents pray that that the appeal herein be dismissed with costs.

Response by the 3rd Respondent 20. The 3rd Respondent filed a replying affidavit dated 13/12/23. He largely associated himself with the averments of the 1st Respondent and noted that the decision of the 1st Respondent of 05/09/2023 was correct and confirmed the status of the club having legally merged with Dimba Patriots FC.

21. The 3rd Respondent also noted that the Appellants do not have locus and cannot sue on behalf of the club as they are not the bona fide officials and have relied on unsigned questionable minutes and no evidence of their elections as club officials have been tabled. The 3rd Respondent also allege that the Appellants are relying on the Club’s constitution dated 29/03/2023 yet the Club’s constitution precedes that date and the club could not have participated in FKF activities without a constitution as per Rule 8. 1.4 of the Rules and Regulations Governing Kenya Football.

22. The Appellants also claim that the Appellants filed an appeal with the FKF Appeals Committee and did not provide a transcript or minutes and as such that appeal is not complete and the same would perhaps explain the delay in rendering its decision.

23. The 3rd Respondent prays that the appeal be dismissed with costs.

Preliminary Objection 24. The 3rd and 4th Respondents filed a preliminary objection dated 4th December,2023 who’s main grounds are:a.The Tribunal lacks jurisdiction to hear and determine this matter since the Appeal filed by the same Appellants at the FKF Appeals coming being appeal number 3 of 2023 is still pending and yet to be heard and determined and is sub judice as per section 6 of the Civil Procedure Act.b.The Tribunal lacks jurisdiction because the Appellants have not exhausted internal remedies.c.The Tribunal lacks jurisdiction to hear and determine the matter since it is not a sports dispute but rather a management and control of club dispute that should be referred to the Registrar of Societies for determination.

Hearing 25. The matter was heard on the 15th December,2023 and all the parties were directed to file written submissions on all aspects of the case including the preliminary objection and a date for decision was reserved for 6th February,2024. However,on 6th February,2023 not all parties had complied and filed written submissions so the matter was rescheduled for delivery of the decision for 13th February,2024.

26. The Appellants filed written submissions dated 04/01/24 and the 1st Respondent filed written submissions dated 17/01/2024 while the 2nd,3rd,4th Respondents filed their written submissions dated 29/01/2024

Determination 27. We have taken into account the parties’ pleadings and written submissions and the Tribunal finds the following questions for determination:a.Whether the Tribunal has jurisdiction to hear the case.b.Whether Mwatate Football Club was legally sold/merged /acquired by Dimba Patriots FC .

a). Whether the Tribunal has jurisdiction to hear the case. 28. At the very onset the question that we have to determine first is the challenge on the Tribunal’s jurisdiction as raised by the 3rd and 4th Respondents in their preliminary objection dated 4th December,2023.

29. The case Mukisa Biscuits Manufacturing Co Ltd v West End Distributors (1969) EA 696 defines what a preliminary objection is.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 arean objection to the jurisdiction of the courtor 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 ascertainedor if what is sought is the exercise of judicial discretion.” (Emphasis Ours).

30. The question of jurisdiction was also 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. We find that the preliminary objection meets the Mukisa Biscuit Test

32. 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.”

33. It is not clear to us why the 1st Respondent or for that matter the FKF Appeals Committee has not heard and determined this matter within a period of 30 days as per Rule 10. 3.4. 6 of the FKF Rules and Regulations Governing Kenyan Football. The Rule provides as follows:“…If further investigations are needed, they must be completed and a decision made within thirty (30) days after the date the appeal was received by the FKF.”

34. The Appellants filed Appeal No.23 of 2023 before the FKF Appeals Committee on 08/09/2023 and by the time the Appellants moved the Tribunal it was after the 30 day window period within which the FKF Appeals Committee had to determine the matter. The Respondents do not offer any plausible reasons for this delay. We are not told if in the words of Rule 10. 3.4. 6 ,further investigations were needed. The best explanation we get for this is from the 3rd Respondent in paragraph 13 of his replying affidavit when he says that the Appellants filed an appeal with the FKF Appeals Committee and did not provide a transcript or minutes and as such the appeal was not complete and this perhaps explain why. This is absolute conjecture to us and offers no utility in these proceedings as no evidence has been tabled to support that proposition.

35. The Tribunal in SDT Appeal Case No.5 of 2019 West StarFCv. Francis Oliele & Anorhad occasion to say that:“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.”

36. It is our finding that the 1st Respondent did not fulfil the constitutional imperative of article 48 on the constitutional thresholds on access to justice to the Appellants. Secondly, the delay in delivering justice to the Appellants by the FKF Appeals Committee and failure to observe their own Rule 10. 3.4. 6 of the FKF Rules and Regulations Governing Kenyan Football would naturally mean that the pathway for justice for the Appellants was not clear hence the need for this Tribunal to assume jurisdiction.

37. We also on the basis of the above finding disagree with the Respondents that the Appellants have not exhausted internal remedies and that the matter is sub-judice.It is evident that they made every effort to exhaust internal remedies as noted above.

38. The Tribunal also disagrees with the assertion that it lacks jurisdiction to hear and determine the matter since it is not a sports dispute but rather a management and control of club dispute that should be referred to the Registrar of Societies for determination. This is a sports related dispute within the remit of section 58 (b) of the Sports Act and the Tribunal is clothed with jurisdiction.

b).Whether Mwatate Football Club was legally sold/merged /acquired by Dimba Patriots FC . 39. The 1st Responded in paragraph 13 of her replying affidavit dated 14/12/2023 states that the club’s constitution provides at Chapter 15 that elections shall be held every 4 years through secret ballot and that the quorum for such election must be at least 75% of the members. She contends that no changes could have been made in the manner suggested by the Appellants.

40. The 1st Responded has attached the constitution of the Mwatate United Club as annexture 19-38 of her affidavit. When you read Chapter 14 of the same constitution it provides that:”For a resolution to be effected the issue must be supported by at least 75% of the membership.”

41. We find the standards set by the 1st Respondent different for the Appellants and discriminatory against the Appellants who are protected from any form of discrimination under article 27 of the constitution of Kenya. Whereas the Appellants are required to have a threshold of 75% for elections into office no such burden has been placed on the 2nd,3rd and 4th Respondents who are purporting to sell Mwatate United FC to Dimba Patriots FC yet chapter 14 of the Mwatate United FC constitution require 75 % of the membership to support such a significant resolution to sell the club.

42. Equally, the Respondents have not shared any material before us showing any such resolution with a 75% membership threshold. We also have nothing before us showing that the 2nd,3rd and 4th Respondent had the blessings of Mwatate United Football Club to sell it to Dimba Patriots FC.

43. The upshot of this is that we find that Mwatate Football Club was illegally sold/merged /acquired by Dimba Patriots FC.

Conclusion 44. 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 4th December,2023 be and is hereby dismissed;b.The Memorandum of Appeal dated 01/11/2023 be and is hereby allowed in part and the Tribunal allows prayers (b),(c) and (d);c.Each party shall bear its own costs of this petition;d.Orders accordingly.

DATED AT NAIROBI THIS 13TH DAY OF FEBRUARY, 2024GICHURU KIPLAGAT - PANEL CHAIRPERSONMARY N. KIMANI - MEMBERPETER OCHIENG - MEMBER