[2024] KESDT 1326 (KLR)

Mwabindo & 20 others v Nabwire & 3 others (Tribunal Case E045 of 2023) [2024] KESDT 1326 (KLR) (10 September 2024) (Decision)

Neutral citation: [2024] KESDT 1326 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Tribunal Case E045 of 2023

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

September 10, 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 CB 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

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.

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

7. The Appellants claimed 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.

8. In summary the Appellants prayed 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.

9. 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.

10. 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.

11. She stated 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.

12. 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.

13. She deponed 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.

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

15. The Respondents prayed that that the appeal herein be dismissed with costs.

16. 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.

17. 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.

18. The Appellants also claimed 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.

19. The 3rd Respondent prayed that the appeal be dismissed with costs

20. The 3rd and 4th Respondents filed a preliminary objection dated 4th December,2023 who’s main grounds were: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.

21. The matter was heard on the 15th December,2023 and the Tribunal delivered its decision on 13/02/2024 in the following terms: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.

Application for Contempt and Application for Joinder 22. The Appellants filed a motion for contempt dated 28/06/2024 but before the Tribunal could hear the contempt case, Mwatate Football Club filed an application dated 26/08/2024 seeking to be enjoined to the contempt proceedings.

23. The Tribunal in its wisdom directed the parties to file their response to the joinder application which was disposed of via a hearing conducted on 02/09/2024.

Hearing 24. Mwatate United Football Club (Mwatate United FC) and the rest of the applicants in the application dated 26/0/2024 relied fully on its application dated 26/08/2024 and the supporting affidavit of Beatrice Matunda dated the same day while the Appellants herein relied on a replying affidavit dated 27/08/2024 deponed to by Suleiman B.Mwabindo,the 1st Appellant. The 1st Respondent herein who is also the 22nd Respondent in the Application dated 26/08/2024 relied on her replying affidavit dated 30/08/2024 deponed to by herself.

25. Mwatate United FC and the rest of the applicants in the application dated 26/08/2024 note that the Appellants’ motion on contempt dated 28/06/2024 seeks various orders from the Tribunal which may have dire consequences on the organization and functions and it is only just, equitable and fair that Mwatate United FC and its bonafide officials be granted the right to make official representations in response to the contempt application. At the hearing the 4th and 22nd and 24th Respondents in the application dated 26/08/2024 supported Mwatate United FC.

26. Mwatate United FC and the rest of the applicants in the application dated 26/08/2024 disputed the list of club officials as listed by the Appellants herein also relied on Rule 17(1) of the Sports Disputes Tribunal Rules that provides for joinder of parties in proceedings.

27. The 22nd Respondent while supporting and echoing Mwatate United FC’s application and the rest of the applicants in the application dated 26/08/2024 noted that this dispute can be resolved through mediation as there are leadership wrangles within the club.

28. The Appellants herein opposed the Application dated 26/08/2024 stating that the intended Applicants came late in the day and should have sought to be enjoined earlier in the proceedings or in the primary suit. They also noted that the 2nd and 3rd Applicants in the joinder application are proxies of Dick Arundo and Naftali Aseka, the 3rd and 4th Respondents herein and are disguised as interested parties who are seeking to institute a fresh suit on a non-existent row.

29. The Appellants herein equally disputed the list of officials as provided for by Mwatate United FC and the rest of the applicants in the application dated 26/08/2024.

30. The Appellants also stated that the Applicants in the instant motion have not articulated their interests well and that the dispute all along has never been premised on leadership wrangles. They finally prayed that the joinder motion be dismissed with costs.

Determination 31. We have taken into account the parties’ pleadings and oral submissions and the Tribunal makes the following findings:

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. The parties have by their own conduct subjected themselves to the jurisdiction of the Tribunal. At the outset the Tribunal is faced with an application for joinder of Mwatate United FC as a party in this matter.

34. Mwatate United FC and the other applicants in the joinder motion note that the Appellants’ motion on contempt dated 28/06/2024 seeks various orders from the Tribunal which may have dire consequences on the organization and functions and it is only just, equitable and fair that Mwatate United FC and its bona fide officials be granted the right to make official representations in response to the contempt application. The Appellants strenuously oppose this application.

35. Rule 17(1) of the Sports Disputes Tribunal Rules provides that:“If it appears to the Tribunal on its own motion or on an application of a party that it is desirable that any person be made a party to the proceedings, it may order such person to be joined as a party to the proceedings.”

36. In the case of Nairobi High Court Civil Suit No.517 of 2014-Lucy Ngigi & Others v. National Bank of Kenya eKLR the court said that joinder of parties can be done at any stage of the proceedings.

37. Article 48 of the Constitution of Kenya provides that the state shall ensure access to justice to all person. Article 50(1) of the Constitution provides that every person has a right to have any dispute that can be resolved by the application of the law decided in a fair and public hearing before a court or an independent and impartial Tribunal.

38. Mwatate United Football Club and the rest of the Applicants in the joinder application are central to these proceedings as the orders sought by the Appellants herein may adversely affect them. They have every right to participate. Indeed, as much as they did not participate in the original suit that does not obviate their right under the law to participate in these present proceedings in the interest of justice. Besides, the issue of who the bona fide officials of Mwatate United FC are was not an issue for determination before the Tribunal in the original suit. We therefore find that Mwatate United Football Club and the rest of the Applicants in the motion dated 26/08/2024 have met the conditions for joinder of parties under Rule 17(1) of the Sports Disputes Tribunal Rules.

Conclusion 39. It is therefore in consideration of this, as well as the parties’ submissions that the Tribunal makes the following orders:a.The motion dated 26/08/2024 is hereby allowed in part in terms of prayers (2) and (3);b.Costs in the cause;c.Orders accordingly.

DATED AT NAIROBI THIS 10TH DAY OF SEPTEMBER, 2024GICHURU KIPLAGAT, PANEL CHAIRPERSONMARY N. KIMANI - MEMBERPETER OCHIENG – MEMBERAppearancesThe Appellants by Mr. Ochieng Advocate for Ken Ochieng & Co. Advocates.1st Respondent is represented by Mr. Muhuyu Advocate for Kirimi Kinoti & Co. Advocates.The 2nd - 4th Respondents are represented by the firm of Busaidy Mwaura Ouma & Co. Advocates.Mr.Kungu Advocate for the Applicants in the Application dated 26/08/2024. Mr.Mbugua Advocate for the 4th Respondent in the application dated 26/08/2024. Mr Mwaura Advocate for the 24th Respondent in the Application dated 26/08/2024