[2023] KESDT 423 (KLR)

Njoki & another v Kenya National Sports Council & 3 others; Ngugi & 3 others (Interested Parties) (Appeal E006 of 2023) [2023] KESDT 423 (KLR) (Civ) (15 August 2023) (Decision)

Neutral citation: [2023] KESDT 423 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Civil

Appeal E006 of 2023

J Njeri Onyango, Chair, MN Kimani & Benard Murunga Wafula, Members

August 15, 2023

Between

Purity Njoki

1st Claimant

Mary Muriuki

2nd Claimant

and

The Kenya National Sports Council

1st Respondent

Nderitu Gikari

2nd Respondent

Vanraj Sarvaiya

3rd Respondent

Charles Nyaberi

4th Respondent

and

David Ngugi

Interested Party

Mududa Waweru

Interested Party

IEBC

Interested Party

Sports Registrar

Interested Party

Decision

Parties 1. The 1st Claimant/Applicant has lodged the instant Claim as a concerned Kenyan citizen and taxpayer on behalf of the general public whilst the 2nd Claimant/Applicant is presently serving as one of the committee members of the 1st Respondent.

2. The 1st Respondent is an umbrella body of several Sports Organizations duly registered under the Sports Act, 2013 and bearer of Certificate of Registration No. 34 whilst the 2nd, 3rd and 4th Respondents and the 1st and 2nd Interested Parties serve as officials of the 1st Respondent.

3. The 3rd Interested Party is a Constitutional Commission established under Article 88 of the Constitution of Kenya, 2010 and was contracted by the 1st Respondent under a Memorandum of Understanding to conduct the elections of 15th December 2022.

4. The 4th Interested Party is an office established under the Sports Act, 2013.

Background 5. The crux of the instant claim follows the election conducted by the 3rd Interested Party on 15th December 2022 on behalf of the 1st Respondent to fill the positions of Chairperson, Vice Chairperson, Honorary Treasurer, and Two Committee Members.

6. The Applicant herein, approached this Honourable Tribunal by way of Notice of Motion dated 27th January 2023 under a certificate of urgency of even date seeking inter alia, a declaration that the 1st Respondent conducted illegal elections and should thus be nullified.

7. The Claimants invited the Tribunal to find and make the following ordersi.A declaration that the 15th of December 2022 elections was not conducted in accordance with the Constitution and Applicable law thus they should be voidedii.A declaration that the 2nd – 4th Respondents were not eligible to vie in the elections.iii.An Order of injunction restraining the 2nd, 3rd and 4th Respondents from further participation in the conduct of elections and responsibilities appurtenant to the officeiv.An order to demand for the conduct of a fresh election in conformity with the relevant laws within 30 daysv.An Order directing IEBC, the third interested party, to oversee the full process of the elections from nominations to declaration of the winner

8. The 1st, 2nd, 3rd and 4th Respondents entered appearance and subsequently filed a Notice of Preliminary Objection dated 21st February 2023 challenging the Claimants’ claim by raising 3 grounds to wit; that the Claimant lacked locus standi, the Application was time barred and that the suit was frivolous and vexatious.

9. The Tribunal having considered the rival submissions filed by the parties disposed of the Preliminary Objection on 21st February 2023 by issuing orders that Statement of Claim be heard on merit and the Respondents to file their Statement of Response to the Statement of Claim within 14 days of service thereof. Thereafter the Claimants had 7 days to respond and file their Response to the Statement of Response to the Statement of Claim. The Respondents filed a Reply to the Statement of Claim on the 13th March 2023 denying each allegation levelled against them.

10. On the 14th of March, the matter came up for mention to confirm compliance upon which orders were issued to join the Sports Registrar as an Interested party and have responses filed in due time.

11. The Claimants responded to the Reply reiterating the issues raised in the Statement of Claim and traversing each of the Respondent’s position filed on the 20th of March 2020.

12. The matter was listed for further directions on the 28th March 2023 and the Statement of Claim was amended to include the 2nd Claimant. The Tribunal granted leave to file additional/supplementary documents and amending of pleadings as the matter was listed for mention to confirm compliance on 18th April 2023.

13. A supplementary Reply to the Claimant’s Response reiterating the Respondent’s position that the elections conducted met necessary regulations was filed on the 14th April 2023.

14. Subsequently, on the 18th of April 2023, the matter came up for mention and a hearing date was set for the 10th of May 2023.

The Claimant/Applicants’ Case 15. The Claimants invited the Tribunal to find that the elections conducted on 15th December 2022 by the Kenya National Sports Council (KNSC) for the positions of chairperson, vice chairperson, treasurer and two committee members were marred with irregularities

16. They also advanced arguments that the 2nd, 3rd and 4th respondent were ineligible to participate in the elections having served two statutory terms.

17. The 2nd,3rd and 4th Respondent were said to have held office since 2010 over 12 years as at the time of the impugned election contra wise to the Constitution of Kenya 2010 (CoK) and the Sports Act 2013 (hereinafter referred to as the “Act”). An anomaly which permitted officials to hold office for a term of 4 years and a right of re-election once.

18. The 1st Claimant in a letter dated 13th December 2022 to the 1st Respondent, through her advocates, days before the elections requested that an investigation be conducted on the irregularities observed among the list of contesters for the election and asked for the removal of the 2nd, 3rd and 4th Respondents from the said list on account of illegibility.

19. The 1st Claimant alleged that the elections were bereft of any integrity and tainted with illegalities and irregularities and as such the 2nd, 3rd and 4th Respondents could not be considered to have been validly elected in such a rigged process.

20. The 1st Claimant stated that the blatant breach of rules by the 1st Respondent implied that there is no proper election to have warranted any persons to assume the offices.

21. The 1st Claimant also reiterated that the elections are null and void and should be cancelled. The Claimants invited the tribunal to declare that a proper nomination and election process that declares winners in strict conformity with the laws of Kenya should guide the new election to be held.

22. The Claimant’s witness, 2nd Claimant, Ms. Mary Muriuki, led evidence that she had served as one of the committee members of the 1st Respondent and an aspirant for the seat of the Chairperson to the 1st Respondent in the impugned elections.

23. The 2nd Claimant admitted that whilst the election was peaceful it was nonetheless marred with irregularities.

24. The 2nd witness called by the Claimants was Mr. Duncan Kiprop, who testified that he was a sports official and wanted to contest in the impugned elections but did not make it to the ballot citing insufficient time to obtain the clearance documents and not finding officers of the 1st Respondent to receive his nomination papers.

25. The Claimant alleged that the Respondents availed the nomination forms only two days to the deadline with an assortment of requirements to be fulfilled such as clearances from Higher Education Loans Board (HELB), EACC (Ethics and Anti-Corruption Commission), Directorate of Criminal Investigations (DCI) and Credit Reference Bureau (CRB). In addition, they further allege that it was only on the last day that the offices were opened to enable them pick these forms.

The Respondents Case 26. The 1st to 4th Respondents filed a response on various dates refuting the allegations spelt out in the claim they alleged that the 1st Respondent was only eligible to register itself under the Act after registration of its constituent members and enactment of the Regulations to the Act. The registration was pegged on the existence of the Regulations enacted on or about on 2nd September 2016 vide Legal Notice no 158.

27. It was only after the enactment of the Regulations that most of the 1st Respondent members were registered between 2017 and 2018.

28. The delay in the enactment of the Regulations and constitution of the Office of the Registrar thereby hindered the 1st Respondent from registration within the year transition window provided under the Act within which previous sports organizations registered under the Societies Act, 1968 could convert to the Act could not have been registered within the one-year transitional period.

29. In light of the above, the Respondents gave evidence that they complied with the Act sometime in 2018 by registering culminating in the issuance of a Certificate of Registration on 24th May 2018. Against that backdrop, an election was held in which the 2nd, 3rd and 4th Respondents were elected as the Chairperson, Vice Chairperson and Treasurer.

30. The Respondents alleged that following their election in 2018 they served a single-four-year-term and were thus eligible for another term to reach the two-term limit stipulated in Clause 16 and Clause 17 of the Constitution of the Kenya National Sports Council (KNSC Hereinafter) and Article 1(c) of the 2nd Schedule to the Act.

31. The 1st Respondent therefore operated as a body in transition between 2013 and 2018 in contrary to the provisions of Section 49(1) of the Sports Act 2013.

32. Further, the Respondents argued that they could not hold their elective annual general meeting unless the list of the compliant registered sports organizations was provided by the registrar of sports. This list was provided in September 2022 and the annual elective Annual General Meeting (AGM) was thus planned for December 2022.

33. The 1st Respondent’s 1st witness, Mr. Ndiritu Gikaria, testified to have allegedly issued sufficient notice to the 1st Respondent members to send a participant to the 15th December 2022 elections. In the said notice, any person interested in the elective positions were to submit the forms by close of business on the 6th of December 2022 to the 1st Respondent’s offices that were said to have been open between 8 am and 5pm.

34. The 1st Respondent’s 2nd witness, Mr. James Akama, led evidence to have served as the 1st Respondent’s administrative secretary and that the latter were always open. He refuted Mr. Kiprop’s testimony and averred that the latter wanted to submit his nomination after close of business. It was also his evidence that the position of chairperson attracted two participants while that of the vice chair and treasurer attracted only one candidate each.

35. Lastly, the Respondents alleged that they are under no legal obligation to provide a delegate list and if any candidate wanted a supply of the list, they could have written to the 1st Respondent and it would have been availed as per the request.

Issues 36. From the foregoing, the issues to be addressed by the Tribunal are -i.Whether the 1st Claimant has locus standi;ii.Whether the 2nd, 3rd and 4th Respondents were eligible to vie in the election;iii.Whether there was a fair nomination process; andiv.Whether the elections were marred with illegalities and irregularities.

Discussion 37. The Tribunal asserts jurisdiction to determine the instant Claim by dint of Regulation 20 of the Sports Registrar Regulations, 2016 that confer the Tribunal powers to entertain appeals by persons aggrieved with the result of an election that is filed within 30 days of the election. However, the tribunal, in furtherance of its mandate to solve sports related dispute, exercises discretion to hear this suit on merits in conformity with Article 159 of the Constitution of Kenya 2010.

i. Whether the 1st Claimant has locus standi 38. The Respondents at the onset challenged the locus standi (legal standing) of the 1st Claimant in their Preliminary Objection to challenge the elections having not been a member of any affiliate of the 1st Respondent or disclosing any reasonable affiliations with its members.

39. While we are mindful that the Chairperson of the Tribunal, Mr. John Ohaga, disposed of the Preliminary Objection in his directions of 21st February 2023 by indicating that the petition can be heard on its merits and that the public had a legitimate interest thus it was one issue that the tribunal would rather deal with, we are nonetheless going to address the legal standing required in matters as the one before us.

40. Locus standi as defined in Law Society of Kenya v Commissioner of Lands & 2 others [2001] eKLR signifies a right to be heard. A person must have a sufficiency of interest to sustain his standing to sue in court.

41. Gone are the days where locus standi required while filing matters had to be direct. The current Constitutional dispensation has widened the scope of legal standing to include persons who may lodge claims, suits and/or matters before judicial bodies on behalf of the general public. This is in consonance with the Court of Appeal decision in Mumo Matemu v Trusted Society of Human Rights Alliance and 5 Others cementing the place of Article 22 and 258 of the Constitution in our current legal order.28. it still remains to reiterate that the landscape of locus standi has been fundamentally transformed by the enactment of the Constitution in 2010 by the people themselves. In our view, the hitherto stringent locus standi requirements of consent of the Attorney General or demonstration of some special interest by a private citizen seeking to enforce a public right have been buried I the annals of history. Today, by dint of Articles 22 and 258 of the Constitution, any person can institute proceedings under the bill of Rights, on behalf of another person who cannot act in their own name, or as a member of, or in the interest of a group or class of persons, or in the public interest…”

42. A cursory look at the Act denotes a non-restricted avenue to the public to interrogate the affairs of Sport bodies. Sports bodies are, by dint of the provisions of the Act, open to the public both in their access and administration, and we hasten to add, access to information. We must however, further hasten to say that on occasion a direct interest may need to be established before a matter is referred to the administrative bodies and Tribunal established thereunder by a member of the public.

43. The long-standing Constitutional values buttressed under Article 10 of the Constitution of Kenya 2010 of public participation, transparency and accountability mandates the 1st Respondent to be answerable to concerns from the public. We take note that the 1st Respondent is funded by public funds through the Sports, Arts and Social Development Fund. Against that backdrop, elections of officials in a public body that receives public funding and additionally enjoys a level of grant of exclusivity by the Registrar of Sports (where no rival bodies can be registered) is not one that should have interest restricted only to members.

44. Nevertheless, it is still imperative to avoid an avalanche of frivolous applications by members of the public that can hamper the business of the Tribunal and the smooth operation of public bodies such claims must not be based on wanton and unmerited allegations.

45. An observant member of the public critically questioning integrity of the electoral process of the 1st Respondent is the hallmark of public participation as a principle in good governance. Participation is both qualitative and quantitative. There is no bar to questioning the conduct of an election by a member of the public.

46. It is the legitimate expectation that if elections are conducted by a public body, they should be irreproachable and when put to task to confirm the same, the matter need not be limited to only a certain class of people. Public bodies must strictly adhere to principles of the Constitution and the Tribunal will not divest the power of oversight from the public.

47. In any event, the proposed KNSC constitutional amendments of 24th February 2018 that were meant to align the Constitution of the 1st Respondent with the Sports Act also widely used the words ‘persons’ in reference to people who qualify to be members.

48. Under section 3(j), the Constitution of the 1st Respondent states that one of the objects is to cooperate by affiliation, collaboration or otherwise with any authority, organizations or persons whose aims are similar. Persons is, in our interpretation, used in the wider sense to imply neutral and legal persons who may include the 1st Claimant.

49. Moreover, under clause 3(l), the 1st Respondent has powers to raise funds through public appeal which implies member of the public have an obligation to fund the activities of the 1st Respondent. It would be approbating and reprobating to seek funds from members of the public then also stifle their involvement in the same organization. This carries with the other sentiments expressed before about members of the public also funding national associations through their taxes.

50. In addition, in describing the composition of the Council, Clause 16(c) anticipates persons actively engaged in sporting activities. The words ‘actively involved in sporting activities’ are quite wide and do not only limit involvement to being an elected official in a sports body. An association that draws both membership and funding widely would not ordinarily be expected to claim that they are closed to scrutiny by the public.

ii. Whether the 2nd, 3rd and 4th Respondents were eligible to vie in the election 51. The Claimants allege that the 2nd, 3rd and 4th Respondents were ineligible to vie since they had served as officials of the 1st Respondent since 2010 to 2022.

52. The Respondents refute the Claimant’s assertions alleging that the 1st election was held in 2018 after the transition of the 1st Respondent under the provisions of the Act. It is undisputed that the 1st Respondent was registered under the Act in 2018. It is also undisputed that the Act came into being in 2013 and by dint of its Section 49 provided a year-transitionary period for sport organizations that duly registered under the Societies Act and in existence before the commencement of the Act. Such sports organizations were to be registered under the Act within the year to avoid being deemed as an unlawful sports organization.49. Transition of existing sports organizations(1)A sports organization, which was duly registered under the Societies Act (Cap. 108) and existing immediately before the commencement of this Act shall be required to apply for registration under this Act within one year after the commencement of this Act.(2)A sports organization, which was duly registered under the Societies Act (Cap. 108) and existing immediately before the commencement of this Act shall not be deemed to be an unlawful sports organization before the period prescribed under subsection (1) has expired.(3)An existing sports organization that does not apply for registration within the time prescribed in subsection (1), shall not be recognized as a sports organization for the purposes of this Act:Provided that an existing sports organization in respect of which—(a)an application for registration has been made by it under subsection (1) and has not been rejected; or(b)an appeal has been lawfully made under this Act and remains undetermined, shall continue to be recognized as a sports organization for the purposes of this Act.

53. In light of the aforementioned Section, the 1st Respondent was expected to have applied for registration between 1st August 2013 and 1st August 2014, however the same did not happen and the latter was only registered in March 2018.

54. The 1st Respondent advanced a plethora of reasons for the non-compliance with Section 49 of the Act including the delay in enactment of the Regulations to the Act to give effect to the provisions of the Act which came into being in 2016 vide Legal Notice 158.

55. What was the intention of the legislature in prescribing Section 49 of the Act? To our mind, the section was directory and clear on the repercussions that would ensue from non-compliance; status of unlawfulness. In Football Kenya Federation v Sports Registrar & 64 others (Interested Parties), Case No. 3 and 5 of 2020 it was stated as follows:113. As far back as 1877, Lord Penzance observed as follows in Howard v Boddington (1877) 2 P.D. 203 on the distinction drawn between requirements which were 'imperative' on the one hand and 'directory' on the other:"The real question in all these cases is this: A thing has been ordered by the legislature to be done. What is the consequence if it is not done? … There may be many provisions in Acts of Parliament which, although there are not strictly observed, yet do not appear to the court to be of that material importance to the subject matter to which they refer, as that the legislature could have intended that the non-observance of them should be followed by a total failure … On the other hand, there are some provisions in respect of which the court would take the opposite view… I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory." (210-211)

56. The predicament the Tribunal is faced with is determining therefore the character of the 1st Respondent between 1st August 2014 when the transition period lapsed and 24th May 2018, which is approximately 4 years. We acknowledge that administrative duties exercised by the Registrar of Sports do not fall under the purview of this Tribunal unless under appeal. However, turning a blind eye to the very legislations we are called upon to interpret, protect and promote we wish to express our dissatisfaction at the manner in which the 1st Respondent conducted itself.

57. The Respondents invited the Tribunal to their position that the 2nd, 3rd and 4th Respondents were eligible to vie for another term in office having served a single term. A term is considered as after the enactment of Regulations to give effect to an Act that prescribes the establishment of an organization, office and/or body. This position was elucidated in James Aggrey Orengo v Daniel Toroitich Arap Moi (Election Petition 8 of 1993) where the eligibility of then President Mr. Daniel Toroitich to vie in the 1992 presidential elections was called to question. The court stated that expunging Section 2A of the now repealed constitution of Kenya (Act no. 5 of 1992) heralded a new era and that the years already served by the then president, Daniel Moi, could not be counted as a term.

58. The contradistinction in the present matter and the Orengo case lay in the fact that a subsisting term under an existing law at the time was being served and being completed before the commencement of the new law. In the present matter, the transition period strictly limited the time of transiting to the new law and in effect the anticipated new terms of office of Sports Organizations were to commence on or about 1st August 2014 after the lapse of the grace period.

59. Indeed, it is worth also noting that the four years stipulated per term is the upper limit of the length of a single term that may be served. There are sports organizations who, at their own discretion through their constitutional stipulations, may opt for shorter term limits such as two years for each term.

60. The 2nd Schedule to the Act postulates that sports organizations including the 1st Respondent shall have elections at regular intervals after a period of between two years and four years for a term not exceeding four years with a right of re-election for one more term. Further, the elections are to be held in accordance with the general principles of the electoral system stipulated in Article 81 of the Constitution of Kenya 2010. The constitution of a body seeking registration as a sports organization shall provide that—(a)elections of officials and athletes representatives at the national, branch and sub-branch levels shall be done directly by club members;(b)only citizens of Kenya shall be eligible for election as the chairperson, secretary or treasurer of a body at the national level;(c)the elections contemplated in paragraph (a) above shall be held at regular intervals after a period of between two years and four years, and persons elected as officials thereof shall consequently hold office as follows—(i)the chairperson shall hold office for a term not exceeding four years, but is eligible for re-election for one more term;(ii)any other official shall hold office for a term not exceeding four years, but is eligible for re-election for one more term.;(d)elections shall be held in accordance with the general principles for the electoral system as stipulated in Article 81 of the Constitution;

61. The 1st Respondent’s Proposed Constitutional Amendments of 24th February 2018 chose the upper limit of term length by providing in Clause 17(2) that –The Chairman, Vice Chairman, Honorary Treasury, 2-Elected Members, 7 coopted members of the Council and 3 members of the Council appointed by the Head of the Council shall each hold office for a period of four years at a time subject only to resignation or removal as hereinafter provided within that period, but shall be eligible for re-election or re-appointment (as the case may be) for one more 4-year term.

62. The 2nd, 3rd and 4th Respondents argued that the period between 2014 and 2018 should not be considered as part of the term since the 1st Respondent was not yet duly registered. To this extent, the Organization lacked legal recognition able to bestow upon them real exercise of authority under the Act, or for that reason to have its activities subjected to the provisions of the Act.

63. It has been established that the 2nd, 3rd and 4th Respondents were in office as early as 2010 and only in 2013 did the Act give rise to term limits. There is no contention whatsoever that the period served between 2010 and 2013 does not constitute a term for the Act had not yet come to force. However, the promulgation of the Act implied that within one year, sports bodies were bound to comply or be considered an unlawful organization which was tantamount to regarding them as inert.

64. The 2nd to 4th Respondents have stated that they could not comply with the transition requirement on a myriad of reasons earlier mentioned. Their statements are not convincing and/or are without compelling justification or compelling reason since sec. 49’s only tacit requirement was that the 1st Respondent ‘apply for registration under this Act within one year after the commencement of this Act,’ without any other encumbrance placed upon the 1st Respondent by the said section. Additionally, there are other Sports Organizations that complied and transited within the stipulated period. Further, the notion of defunctness for non-compliance was a misdirection in law since the 1st Respondent retained full powers to organize and coordinate activities of its members in full glare of authorities. Subsequently, the implication for this anomaly was/that its existence after the lapse of transition period was more of an academic rather than a practical legal question.

65. The resultant effect is that although the first term under the Act officially begun in 2018, there was virtually no change in the powers exercised by the officials prior to and after the registration. To buttress the foregoing, it is indeed true that the council members were legitimately expected to comply with the law. Failure to comply should have invoked immediate consequences yet this was not the case as they continued to exercise real authority over the 1st Respondent’s activities. Being the umbrella National body for Sports Organizations, the 1st Respondent and its officials ought to have been at the forefront leading in compliance.

66. The gravamen of the argument of the respondents seems to be that the term that was served between 2014 and 2018 ought not to be recognized because the registrar of sports does not consider it as such. This argument has to be dissected within the prism of law and where there is an obvious conflict between what the law states and what the person or office which has cardinal responsibility to enforce such law abdicate on their authority then the law shall prevail.To that extent, it would be a narrow interpretation to find that the official recognized term as per the Constitution of the sporting body commenced in 2018 after the first election was held that year.

67. Nevertheless, it appears anachronistic to the intention of the Kenyan Parliament to institute term limits for a sporting organization, which then in complete awareness of the consequences of failure to register/transition, chooses to violate the law to enjoy illegitimate rights and attempt to hold office for more than the envisaged term limit duration (8 years). The upshot of the foregoing is that while the 1st respondent’s constitution only recognizes one term, it is not in harmony with statute which is superior of the two.

68. The 2nd Respondent during the hearing confirmed that he continued to give orders to the Secretariat of the Council during the period when he also claims he was not officially on record as serving in office.

69. The Tribunal shall not aid failure to comply with the law by granting relief to unresponsive official conduct that canvasses illegalities. Undeniably, by virtue of their position within the KNSC, the 2nd, 3rd and 4th Respondents enjoyed privileges and exercised identical powers prior to and after their belated transition. Thus, their mischief to deliberately delay registration is subordinate to and is abated by the statute’s intention to institute term limits in 2013 granting only a maximum of one year transition period.

70. To this end, the Tribunal reiterates the principle laid down by the English House of Lords in Alghussein Establishment v Eton College [1988] 1 WLR 587, that a party should not be permitted to take advantage of its own wrong. As stated by Lord Jauncey of Tullichettle at 591D-E:…it is well established by a long line of authority that a contracting party will not in normal circumstances be entitled to take advantage of his own breach as against the other party.And even though this rule applies to the construction of contracts, we are of the view that the reasoning can be applied to the circumstances of this matter.

iii. Whether there was a Fair Nomination Process 71. The Respondents acknowledged that elections were conducted and that only few applicants participated in them. It was not in contention that there were some positions whose nominees were elected unopposed. However, the Applicants claimed that the reason behind it was a nomination process marred with opaqueness and unwarranted restrictions making it difficult for prospective nominees to make it to the ballot. They summarized the whole process as being unfair and should therefore lead to an order of nullification of the elections.

72. Nominations process provides a platform for contestants to avail themselves for an election and voters can get to choose from those available for selection. Denial of candidates an opportunity to avail themselves in the elections process using unjustifiable bottlenecks casts aspersions on the credibility of the whole process.

73. Drawing from the case of Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR at paragraph 224…The 1st Respondent invites us to take cognizance of the fact that elections are a process and not a voting day event, therefore the learned Judge could not make a decision in isolation as though the 1st Respondent had approached it to invoke its original jurisdiction.Consequently, we take cognizance of the decision in Karanja Kabage v Joseph Kiuna Kariambegu Nganga & 2 others where the High Court observed that:“An election is an elaborate process that begins with registration of voters, nomination of candidates to the actual electoral offices, voting or counting and tallying of votes and finally declaration of the winner by Gazettement. In determining the question of the validity of the election of a candidate, the court is bound to examine the entire process up to the declaration of results….’’

74. Where potential candidates allege that they could not make it to the ballot as there were unexpected encumbrances to that effort is an indication of unfairness and an indictment of the same. The true outcome of an election cannot be established if dubious means to preempt candidates from vying was deployed. The best candidate in such a situation thus may not have won it outright if unorthodox methods were not used. We set out these guiding principles because to confirm whether the process followed in an election was the right and fair process is of utmost importance.

75. The 1st Respondent does not have separate Election By Laws in its Constitution. The Notice dated 24th November 2022 calling for the Annual General Meeting set out the procedural requirements for the elections. We have reprinted them in extenso below:All Sports Organizations are requested to send one representative who will have the voting right.Nomination forms for anyone interested in any of the elective positions to be picked from the KNSC secretariat at Riadha House room 19 and the duly filled form to be submitted on or before 6th December, 2022 by close of business.Only those Sports Organizations who have registered with the office of the Sports Registrar and fully paid their affiliation fee will be allowed to participate.Kindly acknowledge receipt of this letter and send the name and identity card or passport number of the delegate who will represent your federation during the AGM latest 6th December, 2022 for logistical planning purposes. The appointment letter of your delegate must be signed by the Chairman/President of your organization. Please note all the delegates to carry their identification documents to be allowed to participate.

76. The Claimant’s witnesses alleged in both their Affidavits and oral evidence that the process was marred with irregularities since the 1st Respondent’s offices were always closed preventing them from picking nomination papers and that the offices were made open only two days to the deadline. Consequently, the required clearances to make one eligible to vie were numerous limiting the prospects of applicants interested in the positions to get it done before deadline.

77. The Respondents vehemently denied this assertion and claimed that adequate time to announce had been issued and that it was not their fault that some participants could not meet the deadline. According to the Respondents, the Notice dated 26th November 2022 was issued to all members for an Electoral Annual General meeting to be held on the 15th December 2022.

78. The deadline for both the issuance and the return of nomination of forms to candidates interested in the election was set at 6th December 2022, roughly 10 days from the issuance of the notice. In essence, the Respondent averred that the 10 days was adequate time. In his oral statement and based on the documents submitted, the 1st Respondent’s Administrative Secretary confirmed that the return of the documents did not have the time stamp when they were received by the Secretariat. The Guidelines for the Election had simply stated that the deadline was close of business which the Tribunal was asked to consider as meaning 5. 00pm local time.

79. Accessibility to the nomination forms were an integral part of the process since it enabled potential contestants to participate. The 2nd Respondent averred in his statement that nomination forms could be collected by close of business of the last day. He further averred that the official working hours of the 1st Respondent were between 8:00am and 5:00pm. To that extent, nomination forms were not available outside the stipulated working hours.

80. Since the incumbents held authority over the operations of the 1st Respondent, it is not far-fetched to declare that they had leverage over the process. Furthermore, the administrative secretary confirmed in his witness statement that he travelled abroad but he alleged that it did not interfere with the nomination process as operations of his office were not affected. The claimants insisted though that their agents had gone to the offices several times and found the premises locked.

81. The Respondents stated that nomination forms were issued up to the last date. Additionally, the 1st Respondent’s administrative secretary personally issued the forms on the last day. Only 9 forms had been collected hence most of the nominees only managed to get the forms on that day. This lends credence to the claimant’s assertion that it was on the last day that the 1st Respondent’s offices witnessed much activity.

82. According to the 2nd Respondent Witness, a potential nominee, after failure to access the 1st Respondent’s administrative secretary’s office, he sent his application on WhatsApp before making a trip to physically present the papers to the 1st Respondent’s secretary at a Sports Club and not the 1st Respondent’s offices highlighting the desperate attempt to comply.

83. The 2nd Respondent opines that those who had issues with nomination forms should have raised it up during the Annual General Meeting, yet that would not have been possible as the election was scheduled to take place during the said meeting. It has not been alleged or shown that there was ready and available a complaints process leading to the election date. Further the Nomination process and determination of eligibility was clearly being processed by persons who were themselves candidates in the same election.

84. We note with regret that it is unclear how the elective positions attracted such few candidates; 4 contestants for 3 executive positions, raising doubt as to the effectiveness and integrity of the nomination process. Interestingly, the incumbents were the mainly the only nominees despite the 1st Respondent’s large membership of up to at least 62 active Federation members from which 37 were eligible to present candidates to vie for available positions and to vote. Subsequently, the 2nd, 3rd and 4th Respondents are on record to have been mired in a nexus of proposing and seconding each other as candidates. For instance, the 4th Respondent and 2nd Respondent were the proposer and seconder respectively of the 1st Interested Party. The said Respondents then scrutinized the forms of each candidate after which the 2nd Respondent declared those who had been successful in the nomination. Further, in their defence they opine that this was not an issue as they complied with Chapter 6 of the Constitution of Kenya neither did the law bar them from the exercise. If it were as they claim, there would have been no dispute and the Tribunal exerts itself to determine the strength of each allegation raised.

85. It has also been suggested that the election was fair and open by reason of being conducted by the IEBC, the 3rd Interested Party. The Memorandum of Understanding between the 1st Respondent and IEBC was produced. We observe that the said IEBC seem to have only participated on the election day using a list made out and provided by the 1st to 4th Respondents. As observed above, an election is a process and not the vote day event. When the process leading to that day cannot stand the test of fairness, transparency and reasonableness, then the entire act is marred by irregularities and cannot stand the test of integrity.

86. The evidence availed by the Respondents and the Claimants demonstrates that the Respondents did not handle the election process with the diligence it deserves. The Administrative Secretary’s left the country during the nomination process and though it was indicated that there were other members of Staff at the secretariat who would have handled the process, the issue of delegation of duties of the Returning Officer who accepts the nomination forms came up as his office was the one charged with the mandate to issue nomination papers does not help the situation. The Tribunal does not wish to interrogate the urgency of the travelling decision but takes into account in these days of advanced technology, information should have gone out to the membership on who was clearly mandated to issue and receive nomination forms. In fact, simpler methods such as having nomination forms downloaded on the 1st Respondents website or some other platform that was freely accessible, or remitted together with the Notice convening the electoral AGM, would have allayed the allegations now raised by the Applicants.

87. It begs the question of whether fairness of a process is evident at face value or do we have to painstakingly look through the facts. It is the Tribunal’s understanding that something that is fair should be so obvious that someone alleging the contrary has to pinpoint instances of unfairness. Since it is unclear as to why there were few candidates for each position while contestants have come out alleging, they were denied an opportunity to contest, then it is more probable than not that the nomination process was not conducted fairly.

88. The Sports Acts Registrar Regulations under section 20 provide for the list of statutory clearances that prospective candidates have to acquire. For some members to claim they were ignorant of these and caught unawares is no defence. Nevertheless, giving a ten days notice for the lection and also not mentioning these in the Elections Requirements by availing Nomination Forms having this detail to the candidates encumbered the candidates’ ability to fully appraise themselves with what is needed. Some of those documents take a considerable time to obtain as stated by the 2nd Applicant. Insisting that candidates obtain the forms from the offices only during business hours yet they could have been equally available online round the clock in cognizance of the short timeline imputes the challenges encountered in the said process.

89. A fair election as outlined in Regulation 20 (2) of the Sports Registrar Regulations, 2016 is one which satisfies the criteria set out hereunder:(2)Notwithstanding paragraph (1), a sports organization seeking to hold an election shall—(a)appoint an independent panel consisting of at least five members to conduct the election;(b)include observers from at least one umbrella sport organization, the Ministry responsible for matters related to sports and the Registrar's office(c)observe the principle of non-discrimination as provided in their Constitution(d)inform the Registrar at least four weeks prior to the expected date of the elections(e)conduct the election in an open, free and fair environment(f)ensure that the nominated candidates obtain clearance from the Directorate of Criminal Investigation, the Kenya Revenue Authority; the Ethics and Anti-Corruption Commission, the Credit Reference Bureau and the Higher Education Loans Board; and(g)ensure that the office of the chairman or president, secretary and treasurer are reserved for Kenyan citizens only

90. If hurdles are placed that preempt people from reasonably presenting themselves as candidates, then the entire process may be considered to have been choreographed and/or skewed towards achieving a particular outcome from the onset.

iv. Whether the Elections were marred with Illegalities and Irregularities 91. The Claimants submitted that the election was marred with malpractices perpetrated by the Respondents with the tacit approval of the 3rd Interested Party.

92. The burden of proof required in cases such as the instant one lies with the Claimant is one on a preponderance of evidence. The degree and or standard while slightly higher than that of ordinary civil claims is not to be equated to that required in criminal matters. Such evidence should impress the Tribunal to a position that the events claimed are more likely to have happened. In the case of Elijah M Aliero and another v Agnes Flora Oluoch and Another; Patrick Muthiani (Interested Party) [2019|] eKLR, the Tribunal cited with approval Lord Denning J. in Miller v Minister of Pensions (1947) 2 ALL ER 372, in discussing the burden of proof had this to say-“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the Tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not.Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the Tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.” (Emphasis ours)

93. The Claimants averred that they made a request to the Respondents to provide them with a list of delegates who were also the registered voters. This request was not honoured and in the absence of any explanation as to why, it is a reasonable conclusion that there was lack of transparency that casts doubt on the eligibility of the voters.

94. It was the Respondents assertion that there was no legal requirement to provide the list and alleged that it was not requested. Based on a balance of probabilities as in Miller v Minister of Pensions, it is the Respondents who would have benefited from the secrecy of the process. Thus, from the Memorandum of Understanding with the 3rd Interested Party, a request for the list to be made public was not mandatory since it was incumbent for the Respondents to provide it. In particular, this was to be done after settling of disputes. Taking a leaf from National Elections, it is of extreme importance that the list of voters be readily available for scrutiny and where necessary use by all candidates to canvass for votes. The hallmark of transparency is to avert suspicion of foul play and irregularities in such contests whether real or imagined. It is therefore procedurally prudent to ensure that a voters list be accessible or where requested it be availed.

95. Considering that each sport association was to only send one delegate to represent them, it was unclear to know the voters to be able to conduct a successful campaign. The Election Guidelines had indicated that the delegates list would be closed on 6th December 2022 for logistical planning purposes – which the Tribunal presumes would have included availing of the delegates list to the IEBC for the circulation to the membership or directly to the membership. This hoarding of the list on one hand disproportionately favoured the Respondents who were aware of the relevant persons to sell their agenda while prejudicing the other contestants and their own membership on the other hand. The Sports Registrar Regulations, 2016 on Election regulations demand for an open, free and fair environment. The Tribunal resists the temptation to declare an election as open, free and fair if the delegates’ list is only accessed by one side of the divide participating in the process. If a neutral party withheld the list from publicization, then the impact on the process would not have been as adverse as in this situation.

96. Further scuttling the process on the election date was the decision to have two members present in the AGM and only one possessing the rights to vote. The whole election process raised questions as some competitors were by virtue of information held put at an advantage, which can reasonably be deemed as a means to a skewed outcome.

97. From the attendance register, it can be clearly seen that there are delegates whose names were added to the list of attendees in handwritten form. The Tribunal ponders as to why this is so when a complete list was already forwarded to the 3rd Interested Party who was to manage the voting exercise. These additions have not been explained to the panel’s satisfaction, it is a peculiar action that needs thorough interrogation. The affirmative answer is that the process was either deliberately or by default shrouded in mystery to allow for such changes.

98. For this reason, the Tribunal considers that the voting and tallying on the date the elections were conducted was largely regular and without any proven illegalities and irregularities on the actual voting day.

Conclusion 99. Having analyzed the issues as above, it is imperative to determine the ramifications of each contested ground on the general outcome of the election. The issue of locus standi has been settled that both claimants could move the Tribunal to adjudicate on the dispute.

100. With regards to allegations over electoral malpractices, the Tribunal has found that indeed there were incidences of illegalities or irregularities in the election process. Whereas the counting and tallying of votes may have been legal and regular, the entire election is only valid if it is a by-product of a sound process.

101. Consequently, eligibility of the 2nd, 3rd and 4th Respondents was instrumental. As argued by both the claimants and Respondents, the concept of term served has been contested. The blurred distinction in the exercise of de jure and de facto authority by the 2nd to 4th Respondents effectively implied that the term only began with the registration of the 1st Respondent as a sports organization under the Act. This is almost four years since the lapse of mandatory transition period.

102. In consideration of the circumstances surrounding their positions as officials and the inordinate delay to push for registration of the 1st Respondent, the only logical alternative is to ensure that the process of election where they defend their seats should have been beyond reproach.

103. If the first election was conducted on 18th February 2018, and a term is supposed to be 4 years, conducting the second election in 15th December 2022 is already an indictment on the officials since the elections were held two months’ shy from reaching a five-year term aptly capturing their continuous attempt to extend and violate the term limits set.

104. To serve for an excessively long period that transcends the conventional legally stipulated terms and still fail to conduct elections in a scrupulously fair manner is against the principles of fair administrative action espoused in Article 47 of the Constitution of Kenya.

105. As such, it leaves a lot to be desired when the current office holders are the only contestants in some of the available seats. It would not have been an issue if no complaint was raised, however, based on the allegations by prospective contestants that they were denied the opportunity to vie then the 1st Respondent’s council has to convincingly defend themselves and allay the concerns.

106. Elections grant people an opportunity to express their voice in the kind of leadership they envisage. It is through a fair election process that the voices of the people are heard. The evidence against the fair conduct of the process is compelling.

107. Where the integrity of the process cannot be vouched for, the Tribunal considers the question if the nomination was too obfuscated with irregularities that it extensively impacted the process to the point that the purported outright winner was selected rather than elected. The answer is in the affirmativeIn these circumstances, the following orders commend themselves to the Tribunal,i.The process leading towards the elections held on the 15th December 2022 did not meet the fairness threshold necessary to affirm its integrity. The election outcome is thus voidedii.A fresh open and transparent election to be held in conformity with the Act and the Registrar’s Regulations 2016, within 60 days from the date of this Ruling.iii.The 1st Respondent to ensure the supervision of the election process from the beginning of the nomination process and the actual election is conducted by an independent body.iv.The 2nd, 3rd and 4th Respondents are ineligible to vie for re-election in the same positions they hold but can seek other seats within the council.v.This being a public interest matter, each party to bear their own costs.vi.The matter shall be mentioned after 60 days for purposes of the confirmation of compliance.The Tribunal thanks both Counsel for the Appellant and the Respondents for their very helpful contribution and for going over the usual timelines to ensure the matter was conducted within the timelines of the impending deadlines.

DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF AUGUST, 2023. J NJERI ONYANGO - PANEL CHAIR...........................MARY KIMANI - MEMBER...........................BERNARD WAFULA MURUNGA - MEMBERAppearances;-Tj Michael and Company Advocates for the 1st and 2nd ClaimantsVa Nyamodi and Company Advocates for the 1st, 3rd and 4th Respondents