https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9734

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **CONSTITUTIONAL PETITION NO. E022 OF 2026** **KEVINCE ODONGO ………….……………..… PETITIONER/APPLICANT** * **VERSUS -** **AUSTINE MUMA THE CHIEF PRINCIPLE** **KISUMU BOYS HIGH SCHOOL ……………………..…. 1ST RESPONDENT** **ROSE MADUGU KESSHA,** **CHAIRMAN, KISUMU COUNTY …………………...….. 2ND RESPONDENT** **DR. PAUL OKELLO, THE CHAIRMAN KISUMU** **SECONDARY SCHOOLS SPORTS ASSOCIATION …. 3RD RESPONDENT** **MILKA MATIKU, SECRETARY** **KISUMU COUNTY SPORTS ………………………...……. 4TH REPONDENT** **THE COUNTY DIRECTOR OF EDUCATION,** **KISUMU COUNTY …………………………………….…. 5TH RESPONDENT** **AND** **THE HON. ATTORNEY GENERAL ……….........…. INTERESTED PARTY** **R U L I N G** 1. By a Motion on Notice dated **1/7/2026**, **KEVINCE ODONGO** (‘**the petitioner’**) has sought conservatory orders against the respondents to retain **Agai Mixed Secondary School** (‘**the said school’**) as a qualifying team participating in the Secondary Schools regional ball games scheduled to begin on **7/7/2026**; an order to stay any communication if already made to the Principal of the said school, barring the said school from participating in the said games and to compel the respondents to include the full squad of the said school in the said games. 2. The Motion was brought, *inter alia*, under ***Articles 10, 22, 23, 28, 31 and 159 of the Constitution*** and ***Rule 11 of the Basic Education Regulations 2015*** and ***sections 1A, 1B and 3A of the Civil Procedure Act***. 3. The grounds for the Motion were set out in the body thereof and the supporting affidavit of the petitioner sworn on **1/7/2026**. These were that; the petitioner is a stakeholder in the said school and a former football player thereof. That a football match took place at Chavakali between the said school and Kisumu Boys whereby, the said school won and was supposed to advance to the regional games. However, the respondents arbitrarily barred the said school on the grounds that its squad consisted of non-students. That the jury chaired by the 3rd respondent had made a verdict to exclude the said school as aforesaid. The said decision had caused the said school emotional distress, humiliation and loss of opportunity. That unless the orders sought are granted, the rights of the said school would be denied and infringed. 4. The Motion was opposed by the respondents. The 1st respondent opposed the same vide a Preliminary Objection dated **3/7/2026**. The objection was that, this Court lacked jurisdiction to entertain both the Motion and Petition as jurisdiction lies with the **Sports Disputes Tribunal** established under the ***Sports Act No. 25 of 2013***. That the 1st respondent had irregularly been sued instead of the board of the school. That the Kisumu Boys School had lodged an appeal under the internal dispute resolution mechanism and the decision thereof is to be made on Monday **6/7/2026**. 5. The rest of the respondents opposed the Motion vide the Replying Affidavit of **Kavai Kisia** sworn on **3/7/2026**. He averred that the Secondary Schools Sports Association has a Constitution that establishes two juris to hear matters touching on sports disputes. That Kisumu Boys played under protest against the said school but lost. It appealed and the said school was disqualified for fielding non-eligible players. The said school has already appealed against that decision which is being awaited. That the application was therefore misconceived. Both the decision of the Sports Jury and the Appeal by Agai Secondary School dated **30/6/2026** and **2/7/2026**, respectively were produced in support of the aforesaid contestations. 6. The Motion was heard orally. **Mr. Ojalla** appeared for the petitioner. **Mr. Mwamu SC** appeared for the 1st respondent, while **Ms. Juma** appeared for the 2nd to 4th respondents. The Learned Counsels submitted along the lines their respective clients had contended. 7. Having considered the respective contestations, I think the best course is first to consider the objection raised by **Mr. Mwamu SC** and supported by **Ms. Juma**. The main objection is that this Court has no jurisdiction by virtue of the principle of exhaustion. That the internal dispute mechanism had not been exhausted. The first jury had made a decision which had been appealed by the said school on **2/7/2026**. That the decision on the said appeal had not yet been rendered and even if rendered, it will be subject to the ***Sports Act of 2013***, whereby it has to go to the **Sports Disputes Tribunal** and not this Court. 8. In **William Odhiambo Ramogi & 3 Others vs Attorney General & 4 Others (2020) eKLR**, a five judge bench of this Court held: - ***“52. 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. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs Independent Electoral and Boundaries Commission (I.EBC) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the Court opined thus:*** ***‘42. This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words: ‘Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.*** ***43.While this case was decided before the Constitution of Kenya 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine. This is Geoffrey Muthiga Kabiru & 2 others – vs- Samuel Munga Henry & 1756 others [2015] eKLR, where the Court of Appeal stated that:*** ***‘It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews … The exhaustion doctrine is a sound one and 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. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution."*** 1. However, one can still pursue a Constitutional Petition to this Court and seek conservatory orders where, in the petition itself, there is room to adhere to the internal dispute resolution mechanism. That is, to have conservatory orders, pending the exhaustion of the mechanisms set out by statute. 2. In **Philemon Jos Origa vs Commissioner General Kenya Revenue Authority & 2 Others (2026) KEHC KLR**, the Court held: - ***“30. It was contended that the Tax Appeals Tribunal could not grant the reliefs being sought in the petition. That may be so but this Court’s opinion is that, what the petitioner should have done was to first lodge an objection to the assessment in the normal manner as provided for in the Tax Laws and contemporaneously, seek the information he sought from the 1st respondent. The reasons for the objection should have been, amongst others, that there was no information on which the assessment was based and that he had sought that information from the relevant offices of the 1st respondent. That he would give the full reasons for the objection upon receipt of the expected information.*** ***31. This Court opines that, if the petitioner had taken the foregoing route, the timelines set out in the Tax Laws on objections and objection decision by the Commissioner of Domestic Taxes would have stopped to run until the information sought was provided. If for any reason, the Commissioner of Domestic Taxes then proceeded to give his Objection Decision, the petitioner would have then had the right to come to this Court and seek the present reliefs without necessarily going to the Tax Appeals Tribunal which would not have the jurisdiction to grant these reliefs.*** ***32. Further, I believe that the suit and application falls foul of the doctrine of Constitutional avoidance. The courts are not to deal with constitutional issues where those issues can be resolved under the other normal statutory provisions. Had there been any objection proceedings pending as aforesaid and review applications under the Access to Information Act as set out above, then the present proceedings would have been sustainable on the basis that they would have been meant to assist the petitioner get justice either before the Commission on Administrative Justice and the Commissioner of Domestic Taxes. There being no any such proceedings pending, the present proceedings are premature.”*** 1. In the present case, I have seen the Petition. The four prayers sought are: - ***“(1) A declaration that the decision to bar the football team at Agai Mixed Secondary School from participating at the Regional football games upon winning against Kisumu Boys High School is unconstitutional, unlawful and null and void.*** ***(2) A declaration that the respondents be compelled to reinstate the football team at Agai Mixed Secondary School’s participation in the regional ball games to be held in Homabay County.*** ***(3) A declaration that the respondents facilitate and ensure the football students of Agai Mixed Secondary School’s attend and participate in the regional ball games as scheduled.*** ***(4) An order awarding costs of the Petition to the petitioner.”*** 1. ***Section 58 of the Sports Act*** provides: - ***“The Tribunal shall determine—*** ***(a)appeals against decisions made by national sports organizations or umbrella national sports organizations, whose rules specifically allow for appeals to be made to the Tribunal in relation to that issue including —*** ***(i)appeals against disciplinary decisions;*** ***(ii)appeals against not being selected for a Kenyan team or squad;*** ***(b)other sports-related disputes that all parties to the dispute agree to refer to the Tribunal and that the Tribunal agrees to hear; and*** ***(c)appeals from decisions of the Registrar under this Act.”*** 1. In the present case, the Association in question is the Kenya Secondary Schools Sports Association. It has its own constitution. Under ***Article 15*** thereof, it has set out the appellate structure, to wit, the Jury, the Executive Committee, the Supreme Jury, then the Patron. It does not subject itself to the jurisdiction of the Sports Tribunal. 2. Be that as it may, the internal dispute mechanism within KSSSA had not been exhausted. Neither did the petitioner seek the conservatory orders to enable him or the said school pursue the said internal mechanisms. 3. In view of the foregoing, I find that the Preliminary Objection dated **3/7/2026** to be meritorious. I uphold the same and strike out the Motion together with the Petition. As this was a well-founded Public Interest litigation, I direct that each party do bear own costs. It is so ordered. **DATED** and **DELIVERED** at Kisumu this **6th** day of **July, 2026**. **A. MABEYA, FCI Arb** **JUDGE**