[2024] KESDT 139 (KLR)

Nyangweso v Maiyo & 4 others (Tribunal Case E031 of 2023) [2024] KESDT 139 (KLR) (20 February 2024) (Ruling)

Neutral citation: [2024] KESDT 139 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Tribunal Case E031 of 2023

Peter Ochieng, Chair, A.M Owinyi & Benard Murunga Wafula, Members

February 20, 2024

Between

Samuel Mugata Nyangweso

Petitioner

and

Philip Maiyo

1st Respondent

Neddy Chelimo

2nd Respondent

Wachira Gatuiria

3rd Respondent

Kenya Volleyball Federation

4th Respondent

Registrar Of Sports

5th Respondent

Ruling

Appearances:Messrs Langat and Fatah instructed by Fatah & Co. for the Petitioner; Chepchumba and Kurgat instructed by KKOA Advocates for the 1st to 4th Respondents; Munene for the 5th Respondent The Parties 1. The Petitioner was a contestant in the elections of the national sports organization responsible for volleyball in Kenya.

2. The first, second and third Respondents are persons who contested positions in the elections of the national sports organization responsible for volleyball in Kenya.

3. The fourth Respondent is the national sports organization duly registered under the Sports Act, 2023 and responsible for the sport of volleyball in Kenya.

4. The fifth Respondent is the duly enacted public office under the Sports Act, 2023 responsible for the registration of sports organization in Kenya.

Background 5. The Petitioner filed the Petition on 30th August 2023 at The Tribunal against the Respondents following the elections of the fourth Respondent in which he had contested a position.

6. When the matter was mentioned before the Hon. the Chair of the Tribunal under Certificate of Urgency on or about 1st September 2023, the Tribunal directed that the pleadings be served upon the Respondents and be listed for hearing thereafter.

7. Subsequent to this, the matter came up before the Tribunal either through mentions or hearing dates on 4th October 2023, 31st October 2023, 14th November 2023, 28th November 2023, 20th December 2023 and 23rd January 2024.

8. On 23rd January 2024, the parties confirmed to the Tribunal that they had filed their written submissions upon the conclusion of the hearing of the Petition.

Petitioner’s Case 9. In the summary of material evidence that the Petitioner produced before the Tribunal, the Petitioner indicated that the Tribunal had midwifed the elections of the fourth Respondent in which he had expressed interest to be one of the three Executive Committee members.

10. The Petitioner indicated that by the time the nominations closed for the positions that were on offer, he was one of only three of the contestants who had submitted his Forms for the nomination and in effect he was expecting to be declared as elected unopposed since the absence of other candidate meant that there was no need to hold an election for the position.

11. The anomalies of the elections therefore included the opaque nature of adding two more candidates to the position of Executive Committee members. The original names of the three who had submitted their names were the Petitioner Samuel Mugata together with Dorcas Ndasaba and Neddy Kilimo but James Gautira and Philip Maiyo were added.

12. In, there were Branches that were added to the election when the expected Branches were only 33. In effect, the candidates had only campaigned in the 33 Branches and were not expecting other Branches to be cleared to vote.

13. Consequently, the Petitioner claims that there were also certain people who voted during the election and they were not cleared to vote. They however appeared as delegates during the elections and were allowed to vote. This constituted illegitimate delegates.

14. The Petitioner claims that the rigging was so well orchestrated that even basic identification of delegates was done away with and the list of delegates also failed to have any form of identification numbers attached to the delegates.

15. This resulted in some positions having more delegates having the votes cast to be more than those cast for other positions. The Vice President position saw 222 votes cast whilst that of Deputy Secretary General saw 226 votes cast.

Respondent’s Case 16. The fourth and fifth Respondents opposed the Petition and relied on the evidence that was finished to the Tribunal.

17. The fourth Respondent insisted that the Counties that took part in the elections had been duly registered by the fifth Respondent and therefore had a right to vote.

18. The Petitioner had not utilized the internal dispute resolution mechanism that was available as per the Constitution of the fourth Respondent and in particular Clause 13. 24 thereof.

19. The fourth Respondent denied that there were delegates who were sneaked in to vote and averred that the list of eligible delegates was read out on the floor and no objection was raised by any person including the Petitioner.

20. The fourth Respondent averred that the candidates who were cleared to contest had not been cleared out of time but had fulfilled the conditions of vying for the elections and thus it was not correct that the Petitioner was to be declared elected unopposed.

Issues 21. The Tribunal has concurred with the Petitioner in his Written Submissions on what constituted the issues for determination from the pleadings, the evidence and the submissions filed before the Tribunal. The issues were listed as follows:a.Whether the Tribunal has Jurisdiction to hear this matter.b.Whether the Application and Petition meet the threshold for the nullification of the election?c.Who should meet the costs of this Petition?

a. Whether the Tribunal has jurisdiction 22. The issue of jurisdiction is central in the determination of any dispute. This is because without jurisdiction the decision of a court is rendered superfluous. The fourth Respondent has indirectly challenged the jurisdiction of this Tribunal to hear this matter on the grounds that the same had been brought prematurely before the Tribunal.

23. In effect, the issue raised is about whether the Petitioner had exhausted his rights of appeal before the national sports federation before approaching the Tribunal.

24. Beyond the powers granted under Section 58 of the Sports Act, the Tribunal also draw from powers granted under the law in other sections of the Act, the Regulations and other enactments.

25. The Tribunal has powers expressly granted under Regulation 20(7) of the Sports Act (Regulations) 2016 that states:(7)A person who is dissatisfied with the results of an election may appeal to the Tribunal within thirty days of the elections.

26. According to the dictum in Owners of Motor Vessel Lilian “S” v Caltex Oil [1989] KLR, jurisdiction provides a judicial body such as this Tribunal with the basis upon which its authority can be couched and enforced. Therefore it is important that the Tribunal dispenses with jurisdiction as a matter of priority.

27. Section 46(5) of the Sports Act has made it obligatory for sports organizations, including the fourth Respondent, to submit a constitution to the Registrar of Sports prior to registration which shall contain as a basic minimum, the provisions set out in the Second Schedule to the Sports Act. The Second Schedule then goes ahead to list under (f) that:The constitution of a body seeking registration as a sports organization shall provide that (f) subscription to Court of Arbitration of Sports policies and rules which conform with requirements set out in Sports Disputes Tribunal policy and rules for sports disputes resolution.

28. The fourth Respondent through its Constitution therefore will be expected to have internal dispute resolution mechanisms that dovetail into the national jurisdiction granted by the Sports Act to the Sports Disputes Tribunal to hear and determine disputes and which can then flow into the Court of Arbitration of Sports to hear and determine the matter through the international jurisdiction.

29. Preceding the election of the fourth Respondent, this matter was indeed before the Tribunal in a separate matter that had been filed prior in order of filing and the elections were in a sense supervised by the Tribunal though its conferred jurisdiction by law.

30. What the fourth respondent now raises is the issue of whether the Petitioner bypassed the internal dispute resolution mechanisms before approaching the Tribunal. This proposition inclines us to the doctrine of exhaustion.

31. On the doctrine of exhaustion, the court in William Odhiambo Ramogi & 3 others v Attorney General & 3 others; Muslims For Human Rights & 2 others (Interested Parties)[2021] eKLR averred as follows:The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts…

32. Where there are means of dispute resolution then it is expected and it is encouraged that they should be exhausted before the Tribunal is called into the arena to settle the dispute. This is the interplay of the internal dispute resolution and subsequent external dispute resolution mechanism that was adverted to by the Respondents. Nevertheless, the nature of the dispute is critical in determining if it was indeed incumbent for a party to exhaust such mechanisms.

33. Notwithstanding, the Tribunal is bestowed with the powers to determine electoral disputes such as this Claim by dint of Regulation 20 of the Sports Registrar Regulations, 2016 as long as the claim is filed within 30 days of the election.

34. The fourth Respondent contends that under Article 13 of the Constitution of the national sports federation, the first point of call wou;d be to lodge appeals with the Hon. Secretary General of the Federation and the Independent Election and Boundaries Commission. The Hon. Secretary General is an officer of the fourth Responent and having challenged the outcome of the elections wherein some of the officials could be the first instance of redress in an internal dispute resolution mechanism, the Tribunal does not see it fit to insist that there was an omission on the part of the Petitioner to bypass these mechanisms. The rules of natural justice are clear that a man cannot be made judge in their own case. This is aptly captured in the principle of nemo judex in causa sua.

35. To that extent, the Tribunal does not only affirm its jurisdiction in this matter but also diverts from the assertion that exhaustion of internal dispute resolution mechanisms was mandatory.

b. Whether the Application and Petition meet the threshold for the nullification of the election? 36. Next is to determine whether the impugned election ought to be annulled based on the nature of violations alleged by the Petitioner. Certain matters that were not in conformity with the expected procedures have been alleged by the Petitioner including the supposed tampering with the nominated persons and the tampering with the list of the delegates and by effect the number of counties that were to take part in the election.The standard of proof of these allegations and the analysis of the responses thereto by the fourth and fifth Respondents is critical in determination of whether the election conducted by the fourth Respondent in the presence of the fifth Respondent was valid and fair or not.

37. In Mohammed Mahamud Ali v Independent Electoral and Boundaries Commission v Independent Electoral and Boundaries Commission, the court averred as follows:In coming to this conclusion, the court relied on the Raila 2013 decision where we stated: “[196]…Where a party alleges non-conformity with the electoral law, the Petitioner must not only prove that there has been non-compliance with the law, but that such failure of compliance did affect the validity of the elections.”

38. We are also quick to point out the decision in Mohammed Mahamud Ali (supra) where the court echoed the decision of the Supreme Court in Raila case by positing as follows:50]Coming back to the matter at hand, the test for nullification of an election, is stipulated under Section 83 of the Elections Act which specifies the measure within which an election can be invalidated. The said section applies to this appeal as provided before the 2017 amendment and states;“No election shall be declared void by reason of non-compliance with any written law relating to that election if appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non – compliance did not affect the result of the election”

39. The Petitioner has invited the Tribunal to declare the election as irregular alleging that the extent of malpractices made the process indeterminate of a winner. Specifically, the Petitioner asserts that there were 9 county branches that ought not to have participated. According to the Petitioner, this was illegal and the votes cast by delegates from these branches adulterated the process.

40. In rejecting the argument, the Respondents averred that the participation of all the county branches was by right since they are members of the overarching Kenya Volleyball Federation. Nevertheless, it is alleged that they had not yet conducted their own elections prior to the national elections.

41. The Tribunal seeks to interrogate whether the purported branch elections are of fundamental consequence to the validity of the branch membership at the fourth Respondent as the national sports federation. It is notable that the fourth Respondent through the functions of the Sports Act and the determination of the Office of the Registrar of Sports plays a primary and fundamental role in the administration of the volleyball in Kenya. On the other hand, the county branches play a secondary role within their regions while ultimately subscribing to the dictates of the national federation.

42. Just by the fact that county branches can be likened to an off-shoot of the main body, the Tribunal notes that would be disproportionate to declare a bona fide member of a county branch federation as ineligible to vote simply because they have not organized elections at their local level, if indeed that branch exists in law as per the Constitution of the national sports federation. Indeed, if there was any failure to hold elections at the branch level or there were delays to hold the elections, it would seem the better option to hold that the failure by some of the county branches to organize elections does not negate the fact that they are members of the national federation.

43. To this extent, it is imperative that the votes from all county branches who were recognized as members should count since these elections were at a national level to which they are subservient to.

44. In any event, there are no complaints from the county branches on the integrity of the elections at that level or opposition to the delegates representing them at a national level. For that reason, the Tribunal considers their participation in the elections as merited.

45. When looking at the matters in question, the Tribunal has also considered the gravity of the complaints. Serious infractions will invalidate an election. In Mohammed Mahamud Ali (supra), the judge stated as follows on integrity of an electoral process in compliance with the law;[10]In its Judgment delivered 26th July, 2018, the Appellate Justices agreed with the trial Court and dismissed the appeal. On the issue of its jurisdiction, the Court stated that:“As stated earlier, we do not think we have the latitude to heed the invitation of the appellant to wade into the labyrinth of the evidence presented before the trial court and make our own determination on facts. Section 85A (1) of the Elections Act is succinct. It states:-‘An appeal from the High Court in an election petition concerning membership of the National Assembly, Senate or the office of county governor shall lie to the Court of Appeal on matters of law only.’”(11)The Court went on to state;“…….. In the present case, we are inclined to agree with the trial court’s assessment and holding that the irregularities would not affect or alter the results of the 3rd Respondent. All the appellant has achieved is to show that there would be an alteration in the number of votes given to the candidates but not to show the 3rd Respondent as the winner of the election would be affected. In that regard, we find no basis to upset the trial court’s finding and thus this ground of appeal also fails.

46. Consequently, the judge went on to state the following:Similarly, in Raila 2017 this Court considered the application of Section 83 of the Elections Act and the circumstances under which an election may be nullified for failure to adhere to provisions of the Constitution and the law or on account of irregularities finding; “[209]therefore, while we agree with the two Lord Justices in the Morgan v Simpson case that the two limbs should be applied disjunctively, we would, on our part, not take Lord Stephenson’ route that even trivial breaches of the law should void an election. That is not realistic. It is a global truism that no conduct of any election can be perfect. We will also go a step further and add that even though the word “ substantially” is not in our section, we would infer it in the words “ if it appears” in that section. That expression in our view requires that, before vitiating it, the court should, looking at the conduct of the whole election, be satisfied that it substantially breached the principles in the Constitution, the Elections Act and other electoral law. To be voided under the first limb, the election should be what Lord Stephenson called “a sham or travesty of an election” or what Prof. Ekirikubinza refers to as “a spurious imitation of what elections should be”.”

47. In the John Harun Mwau Case when faced with the question whether the non-compliance, irregularities and improprieties in the second Presidential election of 2017 were substantial and significant, and affected the result thereof we stated:“[407] Was the election credible? From the controlling factor of legitimacy, the election would be perceived as credible, in the absence of clear evidence that the bulk of it simply failed; that due procedure was not followed in the conduct of election; that someone other than IEBC conducted the election; that the procedures of vote counting were not followed; that false results were announced, in place of the true outcome; that the voters were turned away from polling stations by IEBC, or by State agencies of power; that the motions of verification and announcement of vote-outcome were not complied with. We have stated elsewhere in this judgment that none of these factors were at play or at play in any significant manner.

48. To buttress the foregoing, the elections were specifically over the management of the Kenya Volleyball federation. All county branches were ordinarily expected to participate and it has not been contested that they are bona fide members except that some did not conduct their local elections. Inarguably, the national elections prevail over branch elections in priority and importance. Therefore, the votes cast by all the current delegates are valid to the extent that they are tasked with the duty to represent their regions at the national level. It is upon the local branches to streamline those who shall represent them at the national level or abide by their acts and/or omissions.

49. The Petitioner has also alleged that there were names added to the list of contestants which subsequently put several positions that had been previously unopposed up for contention. Undeniably, the Petitioner appreciates that he was not in conduct of election and thus it would have been difficult to know who are the participants without requesting for the information from its organizers i.e. the Independent Electoral and Boundaries Commission. The answers as to whom had been cleared to vie for the positions within the mandated time would be from the persons who were running the election. For this reason, the Tribunal is of the position that contestants of the election had complied with the nomination requirements. More so, they gave sufficient and credible notice to the organizers of their intention to vie for the seats and the Petitioner was not privy to the same.

50. Notably, the Petitioner has made an adverse allegation that presents grim prospects over the validity of the election. In particular, he asserts that in the midst of voting, there was a shortage of ballot papers forcing the organisers to hurriedly print more in a nearby cyber cafeteria, which can be either be interpreted as a shambolic way to handle an election by not preparing adequately for it or a last ditch effort to ensure that everyone who was supposed to vote actually voted and thus an action that saved the election from further dissaray. In any event, it is important for such a grave allegation to be proved for it can beset the foundation of the whole election process. The law of evidence is clear, he who alleges must prove.

51. Indeed, the Tribunal will not be eager to be swayed by the gravity of an allegation but by its probative value. It was integral that the Petitioner present robust evidence as a basis for the allegation lest it only remain as a probable but not a definite occurrence.

52. This being an election matter, the Tribunal elects to apply the dictum in Raila Odinga & Others -v- Independent Electoral & Boundaries Commission & Others, Petition No. 5 of 2013, which was echoed in Bavon Joseph vs Esports Federation where the court stated that:(46)In respect of the standard of proof, we held that;[203]…. The threshold of proof should, in principle, be above the balance of probability, though not as high as beyond-reasonable-doubt – save that this would not affect the normal standards where criminal charges linked to an election, are in question.

53. Even so, there was not an iota evidence of the ballot papers haphazardly printed that would extensively cast aspersion on the integrity of the process. The Tribunal is therefore skeptical about relying on these assertions in making a determination.

54. The Tribunal seeks to contradistinguish the evidence provided in this Claim with that of the decision in Olendo vs Kenya Rugby Union and 8 Others that was cited by the Petitioner in its written submissions. Importantly, in the Olendo Case, the Claimant’s nomination and subsequent election had been revoked by the KRU long after the process was complete to pave way for a new election. This was irredeemably improper without any compelling reason. Nonetheless, it is also not for any judicial body to replicate a decision simply because there is a correlation of claim. Prudence demands that each matter is handled on a case by case basis.

55. Furthermore, the Petitioner averred that voters did not present their national identity cards during the voting, which would make it cumbersome to identify them and their eligibility to participate in the process. The Petitioner interpreted this as deliberate to allow for illegitimate delegates to participate resulting to a ballooned participant number.

56. The Tribunal takes note of the inconsistency in the argument of the Petitioner, on one hand the Petitioner alleges that there were approximately 27 delegates from 9 county branches who ought not to have participated. Concurrently, he alleges that the participants were more than expected by roughly a similar number which loosely illustrates the origin of the disputed numbers.

57. Be that as it may, there was no significant variance on the votes cast between all the posts available for contention. Thus, it is unlikely that ineligible voters presented themselves with a singular motive to rig out the Claimant. The Tribunal does not overlook the presence of the Registrar of Sports who observed the process and who in their Written Submissions dated 22nd January 2024 has contended at paragraph 7 that the Petitioner is not clear on the total votes cast. This is because she would have been acutely aware of malpractices of such magnitude since any concerned party could have raised it at the material time.

58. Moreover, from the available evidence, it can be seen that there was a list of total registered voters indicated on record contrary to the Petitioner’s assertion that it was not provided. It is not likely that those who voted in the process were ferried to alter the playing field in favour of one candidate when it has not been disproved that the registered members were delegates from the counties.

59. Lastly, the Petitioner is apprehensive that he was denied the opportunity to campaign. The Tribunal notes that elections for positions within the sports organizations and in particular the national sports organizations borrow a lot from the national elections and are in some cases a microcosm of the national elections but applied to a smaller specified grouping. Denial of campaigning at the elections is often looked at from the point of view of whether a candidate’s advantage was lost only on him or every other candidate. Moreover, owing to the nature of this election, the Tribunal does not deem campaigns as an indispensable element in the pursuit of credible leadership. Unlike national elective politics, this is a sports organization with fairly fewer and acquainted members who are associated with a particular sport which the Tribunal believes is not as susceptible to political sloganeering but more opportunity to network within the fraternity so that delegates vote for the candidate. The opportunity or lack of it to sufficiently campaign does not negate the process.

60. In light of the foregoing, we are not persuaded that the process was so marred with irregularities that the outcome was indeterminate of respective winners.

c. Whether costs are payable 61. Costs are discretionary, this was espoused Haraf Traders Limited v Narok County Government where the court held as follows2]In Republic vs Rosemary Wairimu Munene, Ex-Parte Applicant Vs Ihururu Dairy Farmers Co-operative Society Ltd Judicial Review application no 6 of 2014 court held as follows: -"The issue of costs is the discretion of the court as provided under the above section. The basic rule on attribution of costs is that costs follow the event....... It is well recognized that the principle costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case.’’

62. Furthermore, the Halsbury provides as follows:(24)Costs are at the discretion of the court, yet, follows the event. See the Halsbury’s Laws of England; 4th Edition (Re-issue), {2010}, Vol.10. para 16“The court has discretion as to whether costs are payable by one party to another, the amount of those costs, and when they are to be paid. Where costs are in the discretion of the court, a party has no right to costs unless and until the court awards them to him, and the court has an absolute and unfettered discretion to award or not to award them. This discretion must be exercised judicially; it must not be exercised arbitrarily but in accordance with reason and justice” (Emphasis added).

63. From the foregoing, the Tribunal reiterates that it has full discretion on the award of costs and will exercise the power as it deems fit especially in a matter that also has Public Interest within it.

Conclusion 64. Having analyzed the issues as above, the Tribunal makes orders as follows on the issues raised.

65. With regards to jurisdiction, the Tribunal points out that it is a specialized body whose primary object is to hear sports related dispute. Hence, it shall not abdicate the exercise of its mandate by not providing persons aggrieved in this sport related matter the forum tailored to ventilate their issues.

66. On the issue of integrity of the election and the extent of irregularities, the Tribunal observes that the Petitioner did not demonstrate that the process was so heavily marred with such irregularities as to nullify the election.

67. For this and all the reasons set out in the foregoing, it is the finding of the Tribunal that the elections have successfully stood the test of what constitutes a lawful process. Therefore, the outcome is valid.

68. Consequently, the Tribunal orders as follows:a.The Notice of Preliminary Objection dated 8th September 2023 is dismissed.b.The Notice of Motion and Petition dated 29th August 2023 is dismissed.

69. Each party shall bear costs.

70. The Tribunal thanks the Counsel on both sides for the efficient and dignified matter in which they have conducted these proceedings. Ultimately in sporting contests on the court and on the ballot, there may appear to be winners and losers but the volleyball fraternity is enriched more as a winner with the eagerness of participation by the various stakeholders including those that offer themselves for elections and those that are elected and held to account.

DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF FEBRUARY, 2024____________PETER OCHIENG - PANEL CHAIRPERSONALLAN OWINYI - MEMBERBENARD MURUNGA WAFULA - MEMBER