Nduta v Football Kenya Federation (Petition E006 of 2026) [2026] KEHC 11564 (KLR) (24 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG’A** **HCCHRPET NO. E006 OF 2026** **BETWEEN** | | | | --- | --- | | **EVANS NDUTA…………………………………..** | **PETITIONER** | | **VERSUS** | | | **FOOTBALL KENYA FEDERATION…….…** | **RESPONDENT** | **RULING** 1. This matter came up for inter-partes hearing of a Notice of Motion application dated 22nd June, 2026, whereby counsel for the Petitioner/Applicant **Mr. Mbugua** stated that the Respondent had been served with the said pleadings together with the court’s directions and orders issued on 12th June, 2026 and that the Respondent had failed to comply with the said orders necessitating the Petitioners to file contempt proceedings against them vide a Notice of Motion application dated 22nd June, 2026, upon which the court directed that the same be served upon the Respondents for a response to be filed and parties attend court for hearing on 22nd July, 2026. According to the Petitioner’s Counsel, the Respondent had not filed or served them with any responses to the two applications. 2. In response, M/s Cherono counsel for the Respondent confirmed that they had been instructed to act for the Respondents on 19th June, 2026 whereby they were further instructed to file an application seeking to set aside the orders issued on 12th June, 2026. That they then filed the Notice of Motion application dated 10th July, 2026 and they were under the belief that the prayers had been allowed but on interpreting the actual order which was uploaded the previous day, they noticed it was required that they serve the same upon the Petitioner and attend court on 22nd July, 2026 for inter-partes hearing of the same. Counsel confirmed that despite the confusion, they filed their responses to the Petition application and the contempt application, all dated 10th July, 2026. She also confirmed that they had filed a Notice of Preliminary Objection on even date. 3. It is the Petitioner’s Counsel’s argument that their contempt application be heard in priority on the ground that the Respondents had failed to comply with court orders made on 12th June, 2026. The Respondents’ Counsel on the other hand has urged that their Notice of Preliminary Objection dated 10th July 2026 be heard in priority since it raises issues of jurisdiction and doctrine of exhaustion. 4. This ruling answers one question, that is, in what order should the matters and applications now pending before the Court be heard? It does not determine *whether the Respondent is in contempt of court; whether the Preliminary Objection is well founded; whether the conservatory orders ought to be discharged; or whether the Petition succeeds*. Those questions remain wholly open for determination upon the parties being heard on merit. 5. It will be noted that the Petition and a Notice of Motion were filed on 12th June, 2026 and upon considering the Motion ex parte, the Court granted only prayers No.1 and 2 of the same. Prayer No.1, court certified the matter urgent while in Prayer No. 2, it issued an interlocutory conservatory order against the Respondent whereby the court specifically **restrained the implementation of, or reliance upon, the FKF Rules and Regulations Governing Football (Revised 2025) in the administration of competitions and in decisions concerning promotion and relegation; the constitution or commencement of the 2026/2027 FKF Premier League on the basis of the impugned automatic relegation of the clubs placed 16th, 17th and 18th without the stated play-off; and steps such as player registration, fixture scheduling, club licensing or league-composition announcements only to the extent that those steps were premised on, or consequential to, the impugned automatic relegation and the 2025 Rules.** 6. The order in prayer No.2 was expressed to operate pending the hearing and determination of the Petitioner’s Motion dated 12th June, 2026. The Court then directed service of the application and orders upon the Respondent for an inter-partes hearing on 22nd July, 2026. That Motion has not yet been heard and determined. 7. On 22 June, 2026, the Petitioner filed a second Notice of Motion wherein he alleges that, after service of the order, the Respondent published a league-season announcement, opened player registration and required clubs to submit home-venue information in breach of the order issued on 12th July, 2026. That Motion seeks, among other reliefs, a finding of contempt and orders directed at certain officials of the Respondent. 8. On 10th July, 2026, the Respondent filed its own Notice of Motion seeking the discharge, setting aside, vacation or variation of the orders of 12th June, 2026 and, in the alternative, their suspension pending an inter partes hearing. That Motion also seeks the striking out of the Petition and the Petitioner’s first Motion on grounds that include *jurisdiction,* *exhaustion and locus standi*. A Notice of Preliminary Objection of the same date was also placed on record. 9. The record now includes the Respondent’s replying material dated 21st July, 2026. In relation to the contempt Motion, the Respondent admits knowledge and service of the order but denies wilful defiance, attributing the impugned steps to regulatory and calendar obligations. I mentioned that response only to show that the controversy has crystallised. However, I will express no view, whatever, on its sufficiency or on the allegations made against the Respondent. **THE COMPETING POSITIONS** 10. When counsel appeared, the Petitioner’s counsel urged that the Motion dated 22nd June, 2026 be heard first because alleged disobedience calls into question the authority of the Court and the rule of law. Counsel proposed written submissions and asked that all other matters await the determination of contempt. 11. The Respondent’s counsel took the contrary position. She urged that the Preliminary Objection be heard first because jurisdiction is foundational. If the objection succeeds, counsel argued, the Petition and the applications founded upon it would fall without a consideration of their merits. 12. In my view,both positions invoke important principles. Contempt proceedings protect the administration of justice whereas Jurisdiction marks the lawful boundary of judicial power. It is important to add that the Court controls its own process. **Article 159(1) of the Constitution** vests judicial authority in the courts on behalf of the people. **Article 159(2)(a), (b), (d) and (e)** requires justice to be done to all without delay, without undue regard to technicalities, and in a manner that protects the purposes and principles of the Constitution. **Rule 3(4), (5), (6) and (8) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013** requires the Court and the parties to secure a just, expeditious, proportionate and affordable determination and preserves the Court’s inherent power to make orders necessary for the ends of justice and to prevent abuse of its process. 13. The power to punish for contempt is presently anchored in **Section 5** **of the Judicature Act** and in the inherent authority of a superior court to make its orders effective. In case of **Githiga & 5 others v Kiru Tea Factory Company Ltd [2023] KESC 41 (KLR),** the Supreme Court stated that **courts possess inherent power to enforce compliance with their lawful orders through contempt sanctions. The Court added an equally important qualification, that because contempt proceedings are quasi-criminal, the procedure must be fair and reasonable and the alleged contemnor must have a full opportunity to answer the charge.** 14. The obligation to obey a subsisting order is not suspended by disagreement with it. In case of **Shimmers Plaza Limited v National Bank of Kenya Limited [2015] KECA 945 (KLR)**, the Court of Appeal stated that *obedience to a court order is mandatory, not optional, and that a party may not decide for itself whether an order is regular, irregular, valid or invalid. The lawful course is to return to court for discharge, variation, review or stay. Until that occurs, the order speaks.* 15. The same point was put plainly in the case of **Teachers Service Commission v Kenya National Union of Teachers & 2 others [2013] KEELRC 656 (KLR)** the court stated that a *court order is not a suggestion, an opinion or a point of view; it is a directive and a dissatisfied party has lawful avenues of challenge, but defiance is not one of them.* 16. The Court is equally alive to the rule in the case of **Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR)** where the Court of Appeal stated that *jurisdiction is everything and that, once a jurisdictional issue is raised, it should be decided without further ado because a court without jurisdiction cannot take another step in the merits of the dispute.* 17. In the case of **Econet Wireless Kenya Limited v Minister for Information & Communication of Kenya & another [2005] KEHC 3180 (KLR)** the court confronted the same apparent collision. The High Court explained the general rule that an allegation of contempt is ordinarily dealt with urgently and before other business. The court went on to express itself as follows: - *“Where an application for committal for contempt of court orders are made the court will treat the same with a lot of seriousness and urgency and more often will suspend any other proceedings until the matter is dealt with and if the contempt is proven to punish the contemnor or demand that it is purged or both. For instance, an alleged contemnor will not be allowed to prosecute any application to set aside orders or take any other step until the application for contempt is heard. The reasons for this approach are obvious – a contemnor would have no right of audience in any court of law unless he is punished or he purges the contempt. So, the court is obliged to hear the application for committal first before any other matter. This is a general rule which must be applied strictly.* 18. Here, the acts complained of are alleged to have occurred on 18th and 19th June, 2026. The Respondent’s application for discharge and its Preliminary Objection were filed on 10th July, 2026. The filing of a later challenge did not, by itself, stay or retrospectively erase the order. **Rule 25** **of the Mutunga Rules** allows a dissatisfied party to apply for discharge, variation or setting aside. It does not provide that the mere filing of such an application suspends the order under challenge. 19. This is why a challenge to the validity of the suit cannot, without more, become a licence for self-help. In case of **Kihoto Munyaka Building Company v David Mwangi Gitau & 9 others [2013] KEHC 5355 (KLR)**, the High Court stated that *the validity of the suit may be relevant to the answer to contempt, but it is not a passport to disobey an order which has not been set aside. That is a question for adjudication, not unilateral election.* 20. The authority of a court is not an ornament to be displayed only when convenient. It is the public assurance that disputes will be settled by law rather than by the stronger hand. If an order may be ignored until every objection to the proceedings has run its course, the order ceases to preserve anything. Conversely, because contempt may carry penal consequences, priority cannot mean presumption of guilt. It means only that the allegation will be heard promptly, fairly and first. 21. In the circumstances of this case, the Motion dated 22th June 2026 shall be heard first. It is a discrete inquiry into knowledge, the terms and clarity of the order, the conduct alleged to constitute breach, and whether any non-compliance was deliberate. Those matters can be determined on an expedited timeline without deciding the constitutional validity of the 2025 Rules, the exhaustion question, the Petitioner’s standing, or the merits of the Respondent’s application to discharge the conservatory order. 22. That sequence causes no unfair prejudice to the Respondent. Its replying affidavit is already on record. The identified officials will be served personally and afforded an opportunity to respond and make submissions. 23. Once the contempt Motion has been determined, **the Preliminary** **Objection dated 10 July, 2026,** the **Petitioner’s Motion dated 12th June** **2026, the Respondent’s Motion dated 10th July, 2026 and the Petition** **dated 12th June, 2026** substantially overlap and they shall be canvassed together under one consolidated decision. **24.** Accordingly, the Court gives the following directions: 1. **The Petitioner’s Notice of Motion dated 22 June 2026 shall be heard and determined first, separately from the other pending matters.** 2. **Within three (3) days of this ruling, the Petitioner shall personally serve the Notice of Motion dated 22nd June 2026, the supporting affidavit and annexures, the order of 12 June 2026, and this ruling upon every officer against whom personal penal or show-cause relief is sought, and shall file affidavits of service.** 3. **The Petitioner shall file and serve written submissions on the contempt Motion within seven (7) days, from the date of this application. The Respondent and every officer properly served may file and serve responding submissions within Seven (7) days thereafter.** 4. **The parties shall limit their submissions to four (4) pages only.** 5. **The contempt Motion shall be mentioned on Friday, 14th August 2026 before the Deputy Registrar to confirm compliance and to take a date for ruling.** 6. **Upon determination of the contempt Motion, the Notice of Preliminary Objection dated 10th July, 2026, the Petitioner’s Notice of Motion dated 12th June, 2026, the Respondent’s Notice of Motion dated 10 July 2026 and the Petition dated 12th June, 2026 shall be canvassed jointly by way of written submissions.** 7. **Each party is at liberty to file submissions limited to seven (7) pages.** 8. **In the resulting determination, the Preliminary Objection shall be decided first; the merits of the applications and Petition shall be reached only if the objection is not upheld.** It is so ordered. **DATED, SIGNED AND DELIVERED VIA ELECTRONIC CASE TRACKING SYSTEM AT MURANG’A THIS 24TH DAY OF JULY 2026.** ............................................................... **HON. DORAH O. CHEPKWONY** **JUDGE**