[2024] KESDT 1060 (KLR)

Mwabindo & 20 others v Okoyo & 3 others (Tribunal Case E045 of 2023) [2024] KESDT 1060 (KLR) (7 August 2024) (Ruling)

Neutral citation: [2024] KESDT 1060 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Tribunal Case E045 of 2023

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

August 7, 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

James Mbaraka Okoyo

1st Respondent

Doreen Nabwire

2nd Respondent

Dick Arudo

3rd Respondent

Naftali Aseka

4th Respondent

Ruling

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

2. The 1st Respondent is represented by Mr. Muhuyu Advocate.

3. The 3rd Respondent is represented by the firm of Busaidy Mwaura Ouma & Co. Advocates.

4. The 4th Respondent is represented by MJM Law LLP 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 Mwatete United Football Club) as elected by the membership and stakeholders of the club from a meeting held on 18. 3.4. 6. 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 to the Case 4. The Appellants approached the Tribunal vide their Memorandum of Appeal, a certificate of urgency and Notice of Motion all dated 01/11/2023.

5. The Appellants claimed that the 1st and 2nd Respondents’ actions in an 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. 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.

8. The Respondents filed their responses and prayed that the appeal be dismissed with costs. The 3rd and 4th Respondents also 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 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.

Decision 9. The matter was heard on the 15/12/2023 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 01/11/2024 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.

Notice of Motion 10. The Appellants have subsequently moved the Tribunal via a Notice of Motion dated 28/06/2024 on grounds that:a.The Tribunal be pleased to grant leave that criminal contempt of court proceedings be commenced against the 1st,3rd and 4th Respondents jointly and severally for disobedience of the judgment of this Tribunal entered herein on 13. 02. 2024 and the decree and orders of the Tribunal issued on the 26/02/2024 emanating therefrom.b.The Tribunal in the alternative be pleased to issue notice to the 1st,3rd and 4th Respondents jointly and severally to show cause why civil contempt of court proceedings ought not to be commenced against them for disobedience of the judgment of this Tribunal entered herein on 13. 02. 2024 and the decree and orders of the Tribunal issued on the 26/02/2024 emanating therefrom.c.The Tribunal in the alternative be pleased to issue a notice to the 1st,3rd and 4th Respondents jointly and severally to show cause why they ought not to be punished for contempt of court in the face of disobedience of the judgment of this Tribunal entered herein on 13. 02. 2024 and the decree and orders of the Tribunal issued on the 26/02/2024 emanating therefrom.d.The Tribunal be pleased to issue a notice to the 1st,3rd and 4th Respondents jointly and severally that until they purge the contempt to the satisfaction of the Tribunal the said Respondents ought not be heard by this honourable Tribunal or allowed to participate in the proceedings.

11. The Appellants also relied on the supporting affidavit of one, Suleiman B. Mwabindo the 1st Appellant herein dated 28/06/2024 in support of the motion.

Preliminary Objection 12. The 1st Respondent filed a notice of preliminary objection dated 16/07/2024 on grounds that:a.The notice of motion is an abuse of the court process since the Applicants have failed to approach the internal judicial forum to ventilate its claim as per Articles 59,65 and 70 of the FKF Constitution.b.The notice of motion herein has been drafted to couch and convert a purely league issue which by law ought to be dealt with by the Leagues and Competitions Committee into a contempt application.c.The notice of motion application is couched under Section 46(2) of the Contempt of Court Act which statute was declared unconstitutional vide court Kenya Human Rights Commission v. Attorney General & Another (2018) eKLR.d.The notice of motion is fatally defective and a nullity ab initio for seeking orders against the 2nd Respondent who is deceased.

13. The 3rd Respondent also filed a preliminary objection dated 25/07/2024 on the ground that:a.The Applicant’s application is clearly an afterthought and offends the provisions of sections 7 and 8 of the Civil Procedure Act and thus ought to be dismissed as the same Applicant has also filed Wundanyi Magistrates Case MCCCMISC E001 of 2024; Suleiman B Mwabindo vs FKF Leagues Committee and 3 Others.

Hearing 14. The matter proceeded for hearing on 26/07/2024 and the parties were directed to file and serve written submissions. The Appellants filed written submissions dated 28/07/2024 while the 3rd Respondent filed their written submissions dated 03/07/24. The rest of the parties in this case did not file any written submissions.

Determination 15. We have taken into account the parties’ pleadings and written submissions and the Tribunal makes the following findings:

16. At the very onset the question that we have to determine first is the challenge on the Tribunal’s jurisdiction among other grounds as raised by 1st and 3rd Respondents in their preliminary objections.

17. 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 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).

18. The 1st Respondent asserts that the Tribunal has no jurisdiction in her preliminary objection dated 16/07/2024 because first, the Applicants have failed to approach the internal judicial forum to ventilate its claim as per Articles 59,65 and 70 of the FKF Constitution and secondly the motion herein has been drafted to couch and convert a purely league issue which by law ought to be dealt with by the Leagues and Competitions Committee into a contempt application

19. The question of jurisdiction was determined in the celebrated case of Owners of The Motor Vessel “Lillian S” –Vs- 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.”

20. We find that these first two grounds of the preliminary objection dated 16/07/2024 are pure points of law and meet the Mukisa Biscuit Test as the issue of jurisdiction is at play. 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.”

21. However, we disagree with the 1st Respondent’s assertion that this matter ought to be handled by the FKF Appeals Committee and not this Tribunal for the reason that the Applicants from a close reading of the motion dated 28/06/2024 are seeking the Tribunal’s intervention to sanction the individuals cited in the motion for having failed to carry out or implement in full the decision of the Tribunal dated 13/02/2024. This therefore is not a dispute within the jurisdiction of the FKF Appeals Committee as erroneously submitted.

22. On the third ground raised by the 1st Respondent’s preliminary objection that the notice of motion application is couched under Section 46(2) of the Contempt of Court Act which statute was declared unconstitutional vide Kenya Human Rights Commission v. Attorney General & Another (2018) eKLR we have these to say. This assertion is contested as the Tribunal will have to weigh the evidence before it to establish if indeed the Applicants are relying on a legislation that has otherwise been declared unconstitutional. In other words, this is not a pure point of law that meets the Mukisa Test as facts have to be ascertained.

23. On the fourth ground again by the 1st Respondent that the notice of motion application is fatally defective and a nullity ab initio for seeking orders against the 2nd Respondent who is deceased. This is not an issue that can be dealt with us a pure point of law by merely stating that the 2nd Respondent is deceased but as an issue that requires proof such as providing a certificate of death and permit for burial under the Births and Deaths Registration Act (Cap149) Laws of Kenya. This ground is also untenable.

24. The 3rd Respondent’s preliminary objection dated 25/07/2024 is premised on the ground that the Applicant’s application is clearly an afterthought and offends the provisions of sections 7 and 8 of the Civil Procedure Act and thus ought to be dismissed as the same Applicant has also filed Wundanyi Magistrates Case MCCCMISC E001 of 2024; Suleiman B Mwabindo vs FKF Leagues Committee and 3 Others. Again, it is our finding that this ground can only be tested through evidence as facts are in issue here based on the positions that the parties hold that are at variance. Suffices to say that it fails the Mukisa Biscuit test for failing to be a pure point of law.

Conclusion 25. It is therefore in consideration of this, as well as the parties’ submissions that the Tribunal makes the following orders:a.The preliminary objections dated 16/07/2024 and 25/07/2024 be and are hereby dismissed;b.The Notice of Motion dated 28/06/2024 shall be fixed for hearing;c.Costs shall be in the cause;d.Orders accordingly.

DATED AT NAIROBI THIS 7TH DAY OF AUGUST, 2024GICHURU KIPLAGAT, PANEL CHAIRPERSONMARY N. KIMANI, MEMBERPETER OCHIENG, MEMBER