[2023] KESDT 194 (KLR)

Ogara & 13 others v Kenya Volleyball Federation & 2 others (Tribunal Case E010 & E012 of 2023 (Consolidated)) [2023] KESDT 194 (KLR) (28 April 2023) (Decision)

Neutral citation: [2023] KESDT 194 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Tribunal Case E010 & E012 of 2023 (Consolidated)

John M Ohaga, Chair, Gabriel Ouko & A.M Owinyi, Members

April 28, 2023

Between

John Odhiambo Ogara

Applicant

and

Kenya Volleyball Federation

Respondent

As consolidated with

Tribunal Case E012 of 2023

Between

Ibrahim Efumbi

1st Applicant

John Gitari

2nd Applicant

Ngala Birgen

3rd Applicant

David Leting

4th Applicant

John Wambaya

5th Applicant

Okanda Mangala

6th Applicant

Adhe Huka

7th Applicant

Moses Mbuthia

8th Applicant

Baldin Mengo

9th Applicant

Onsongo Nicodemus

10th Applicant

Celestine Odiwuor

11th Applicant

Etiyang Wamai

12th Applicant

Mbabu Muriithi

13th Applicant

and

Kenya Volleyball Federation

1st Respondent

Ben Juma Chepkechir

2nd Respondent

The Sports Registrar

3rd Respondent

Decision

The Parties and their pleadings 1. The Applicant in the first action, SDTSC No. E010 of 2023 describes himself as a member of the Kenya Volleyball Federation (hereinafter ‘the Federation’ or ‘the KVF’).

2. The second action, SDTSC No. E012 of 2023, is brought by thirteen (13) Applicants who are all officials of various branches of the Federation.

3. The Respondent in SDTSC No. E010 of 2023 is the Kenya Volleyball Federation; it is also the 1st Respondent in SDTSC No. E012 of 2023. We therefore hereafter refer to it as the Federation or the KVF.

4. The 2nd Respondent in SDTSC No. E012 of 2023 is Ben Juma Chepkechir. He is the Secretary General of the Federation. It is not clear to us why he was joined as a party to these proceedings as he is merely an official of the Federation and no substantive orders are sought against him. We take the view that the 2nd Respondent’s joinder is improper and the proper respondent is the Federation. We therefore strike his name out from the proceedings suo moto.

5. The 3rd Respondent is the Sports Registrar which is a statutory office established pursuant to Section 45 of the Sports Act, 2013 with the responsibility of registration and regulation of sports organisations. We will hereafter refer to this party as the Sports Registrar.

Directions and rationale for consolidation 6. Both applications challenge the Annual General Meeting of the Federation which is scheduled for 29th April 2023. In particular, both applications seek to restrain the Federation from holding its national elections at the said AGM. In view of the common issues to be canvassed at the hearing, it was expedient that the two actions be consolidated and heard together.

7. None of the parties expressed any objection to the directions for such consolidation.

The First Application 8. The Applicant in SDTSC No. E010 of 2023 commenced his action by way of Notice of Motion dated 17th April 2023 supported by his affidavit of the same date.

9. The application was brought under Certificate of Urgency and placed before the Chairman on 17th April 2023 when directions were issued for service of the application on the KVF and for the matter to be listed for directions on 24th April 2023.

10. The motion seeks that the Tribunal stay the provisional notice dated 23rd March 2023 as well as the final notice dated 8th April 2023 issued by the KVF pending the hearing and determination of this application. The Applicant also asks that the guidelines and regulations dated 6th March 2023 issued by the KVF and circulated on 15th April 2023 be similarly stayed.

11. The action was commenced by the Applicant in his own name, but he subsequently appointed Counsel to appear on his behalf and argue the application.

12. The application was urged confidently and competently by Ms. Wadegu notwithstanding the limitations which come when Counsel has not herself framed the papers in respect of the action.

13. At the conclusion of the arguments and after the matter had been adjourned, the Panel, in the course of preparing this decision, noted that there was no substantive Statement of Claim filed in compliance with Rule 6 of the Sports Dispute Tribunal Rules 2022 which could form the foundation upon which this action was commenced. Having not been able to identify any foundation for the claim, it follows that there is no basis upon which the motion which seeks interlocutory relief is premised.

14. In Wanja and another v Roothaert, Miscellaneous Application E193 of 2021 [2022] Lady Justice Maureen Odero observed that the filing of a suit is a mandatory statutory provision which the court cannot simply wish away and the failure or omission by the Applicant to file a substantive suit cannot be overlooked as a mere technicality.

15. The application is therefore incompetent and must be dismissed in limine.

16. The Panel reaches this conclusion with regret in view of the strong arguments advanced by Ms. Wadegu.

The Second Application 17. The second application was commenced by way of Notice of Motion dated 24th April 2023 and supported by the Affidavit of Ibrahim Efumbi, the 1st Applicant, sworn on the same date of 24th April 2023. The motion was accompanied by Certificate of Urgency of Paul Nyamodi Advocate. Underpinning the motion, is a Statement of Claim, dated 4th April 2023 setting out the substantive prayers that the applicant will be urging the Tribunal to issue.

18. When the matter first came before the Tribunal on 24th April 2023, the Chairman directed that it be listed for mention the following day, 25th April 2023 and required that the Application be served upon the Respondents by 1. 00 pm on the stated date.

19. On 25th April 2023, the Applicants were represented by Mr. Baraza whilst the KVF was represented by Mr. Langat. There was no representation for the Sports Registrar.

20. In view of the limited timeline before 29th April 2023 when the impugned General Meeting was scheduled to be held, the Chairman issued very strict directions requiring the Respondents to respond to the Application within 24 hours and further directed that the Application be served directly on Senior State Counsel, Mr. Martin Munene, who regularly appears before the Tribunal on behalf of the Sport Registrar.

21. The application was then scheduled for oral arguments on Thursday 27th April 2023 from 4. 00 pm.

22. On 27th April 2023, when the matter was called out, all parties were represented by Counsel with Mr. Baraza appearing for the Applicant, Mr. Langat for the KVF and Mr. Munene was present for the Sports Registrar.

23. The matters that aggrieve the Applicants are as set out in the Notice of Motion and relate to the 1st Respondent’s Annual General Meeting which is scheduled to be held on 29th April 2023. In particular, the Applicants challenge the agenda relating to the elections which are scheduled to be conducted at the said annual general meeting.

24. Each party was allowed sufficient time to make arguments in support of both its factual and legal position and those arguments as well as the facts set out in the various Affidavits have been given full consideration by the Panel and need not be restated in view of the very limited time within which the Panel has allowed itself to consider and deliver this decision.

The Preliminary Point 25. It is convenient to dispose of the Preliminary Objection, which was raised by Counsel for the Federation, as set out in the Notice of Preliminary Objection dated 24th April 2023. The objection challenges the jurisdiction of the Tribunal on the basis that the issues raised in both actions do not fall within the scope of Section 58 of the Sports Act, 2013

26. Section 58 of the Sports Act provides as follows: -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; andc.appeals from decisions of the Registrar under this Act.”

27. The Second Schedule to the Sports Act, 2013 provides as follows, with respect to matters which must be contained in the constitution of every sports organization which include “subscription to Court of Arbitration for Sports policies and rules which conform with requirements set out in Sports Disputes Tribunal policy and rules for sports disputes resolution.

28. Indeed Article 1. 9. (36) of the KVF Constitution provides as follows: -The Federation shall subscribe to the Court of Arbitration for Sports Policies and Rules and adopt internal arbitration guidelines, tools and mechanisms in resolving disputes. The Federation shall encourage all its members to use the Federation, KNSC and NOCK internal dispute resolution processes as a priority before reverting to the country’s and international legal systems. It shall recognize the Sports Disputes Tribunal as set out under the Sports Act 2013.

29. The Panel is persuaded that this provision of the Constitution is sufficient to satisfy the requirements of Section 58 (b) of the Sports Act, 2013. It is not necessary that separate written consent be provided every time a matter comes before the Tribunal.

30. The second limb of the Preliminary Objection relates to the exhaustion of internal dispute resolution mechanisms.

31. As a matter of principle, the Tribunal takes the view, and has repeatedly held that parties must exhaust internal dispute resolution mechanisms before approaching the Tribunal.

32. With respect to the present matter, the Panel has scanned through the Constitution of the KVF and is unable to identify any specific provision establishing a mechanism for internal dispute resolution. The Article to which we have referred makes reference to “…the Federation, KNSC and NOCK internal dispute resolution processes”.

33. It is incumbent upon the Federation to identify with exactitude which internal dispute resolution mechanism would be available to the Applicants with respect to the particular dispute that has been brought before the Tribunal. This is because the Tribunal must establish whether that mechanism is appropriate for the nature of dispute that is now before it. In the absence of such identification, the Panel is unable to fault the Applicants for approaching the Tribunal directly.

34. The third limb of the objection advanced by the Federation is that the Applicants should have filed a dispute before the Sports Registrar in accordance with Rule 21 of the Sports Registrars Regulations, 2016.

35. The simple answer to this objection is that the Sports Registrar is a Respondent to SDTSC No. E012 of 2023 in which the Applicants have made certain allegations relating to the conduct of the Sports Registrar. It is trite that a party cannot be a judge in its own cause and the Applicants cannot be expected to take their dispute before the Sports Registrar when they have already expressed dissatisfaction with the manner in which certain aspects of the process leading up to the impugned elections have been dealt with by that very office.

36. The foregoing is sufficient to dispose of the Preliminary Objection and the same is dismissed.

The dispute 37. Some background is necessary to appreciate the basis for the challenge mounted by the Applicants.

38. On 1st April 2023, the Federation finally promulgated a new Constitution in compliance with the Sports Act, 2013. The promulgation of the new Constitution was propelled by the need to align the Federation’s Constitution with the letter and spirit of the Sports Act, 2013, the World Anti-Doping Agency Regulations and the Sports Registrar Regulations, among others. The Constitution came into force on 1st April 2023.

39. There is some controversy as to the status of this Constitution and when it came into force.

40. The Applicants have averred at paragraph 2 of the Supporting Affidavit of Ibrahim Efumbi that the Constitution was amended some time in 2022; at paragraph 3 of the said affidavit, the deponent goes on to state that the amended Constitution was lodged with the Sports Registrar when the KVF was registered under the provisions of the Sports Act 2013 on 24th May 2018. The Applicants then go on to make extensive reference to “the Amended Constitution”.

41. The Federation on the other hand asserts at paragraph 14 of the Replying Affidavit of Ben Juma Chepkechir that the amended Constitution only came into force on 1st April 2023 when the Special General Meeting convened and held on that date approved and adopted the Constitution.

42. It seems clear to the Panel that the Applicants have misconstrued the status of the amended constitution because, prima facie, a constitution amended in 2022 cannot have been lodged in 2018.

43. The Panel is of the view that the proper position is that asserted by the Federation which is that the constitution came into force on 1st April 2023.

44. However, we do not consider this misconception to be fatal to the challenge mounted by the Applicants as sought to be asserted by the Federation and we will make reference to the Constitution on the basis that this came into force on 1st April 2023. The slight difficulty is that we are unable to discern under what constitution the KVF was conducting its affairs prior to 1st April 2023.

45. The process towards holding the Annual General Meeting (AGM) commenced by a Notice dated 23rd March 2023, which stated that the AGM would be held on 29th April 2023 at Nyayo National Stadium from 10 a.m. It further stipulated that the meeting would comprise members who have been approved and registered by the Registrar of Sports in accordance with the Sports Act 2013 and the amended 2023 Constitution. It then went on to state that the agenda of the meeting would be given at least 21 days prior to this meeting.

46. Of concern to the Panel is that this Notice makes reference to having been issued pursuant to a constitution which had not yet come into force. As we have already observed, the Constitution was promulgated on 1st April 2023.

47. This Notice was followed by what was described as a Final Notice of General (Quadri Annual) Meeting dated 8th April 2023. This Final Notice made reference to the notice of 23rd March 2023 as being a ‘provisional notice’. Of note is that the venue for the meeting had also changed from Nyayo National Stadium to Roasters Hotel. It then set out the agenda as well as the members or delegates who would be in attendance.

48. The Concise Oxford Dictionary defines ‘provisional’ as: “providing or serving for the time being only; temporary; existing only until permanently or properly replaced’.

49. The penultimate paragraph of the notice required educational or institutional branches to forward their certificates of registration from the Registrar to the Secretariat, five (5) days to the AGM. It ended by stating that the Election Guidelines would follow.

50. The reference to Election Guidelines following is curious because the Election Guidelines which have been produced at pages 84 to 87 of the Exhibit annexed to the Affidavit of Ibrahim Efumbi is dated 6th March 2023 which means these guidelines had already been formulated even before the ‘provisional notice’ was issued. There is no explanation as to why there was a significant delay in providing the guidelines to the aspirants.

51. Several aspects of the Notice of the AGM have caused the Panel considerable concern. First and foremost, is the question whether the notice dated 23rd March 2023 was a valid notice, in view of the fact that firstly, the elections were to be held under the new constitution and secondly, the notice was only ‘provisional’.

52. The KVF Constitution at Article 4. 1.4 sets out detailed provisions relating to Notice of General Meetings. In particular, 4. 1.4 (2) provides as follows:Notice of the General Meeting shall be given at least 30 days prior to the General Meeting and shall specify the place and day and hour of the General Meeting.

53. A notice by its very nature must be definite; it cannot be provisional as that creates uncertainty. In addition, the notice of 23rd March 2023 cannot possibly have been issued in compliance with the new constitution as the same had not come into force. The Panel therefore holds that this notice was incompetent.

54. This therefore leaves the final notice dated 8th April 2023 as the notice commencing the process towards the holding of the AGM and elections.

55. This notice is not in compliance with the requirement of Article 4. 1.4 in so far as it does not give at least 30 days prior notice for the election to be held on 29th April 2023. And even if we were to accept that the notice of 23rd March 2023 properly commenced the process towards the AGM, it would be seen that the notice of 8th April 2023 changes the venue of the elections from Nyayo National Stadium to Roasters Hotel.

56. In the result, the Panel comes to the conclusion that no proper notice has been given for the AGM scheduled for 29th April 2023. This conclusion is enough to require the Federation not to proceed with the AGM.

57. However, there are other important issues which were addressed by Counsel for the Applicants as well as Counsel for the Federation and the Sports Registrar. These relate to the legitimacy of the elections in view of the registration of various County Associations and the requirement that the educational or institutional members must present their certificates of registration prior to being permitted to attend the AGM and to vote.

58. Article 4. 2.2 (3) of the KVF Constitution provides as follows: -The National Executive Committee shall be elected directly by all registered member branches and teams registered under this constitution and duly paid up with the Federation as well as representatives of Kenya Secondary Schools Sports Association, Kenya Primary Schools Sports Association and Kenya University Sports Association. Provided that only active clubs which shall have participated in at least two national tournaments and fifty percent (50%) of their respective branch competitions held in the volleyball season preceding the election term shall be eligible to vote.

59. This provision suggests to us that the named institutions are core members of the Federation, otherwise they would not have been specifically identified in the Constitution.

60. Further, the Transitional Clause of the Constitution at Article 6. 10 is instructive and provides as follows: -1. The amended constitution and all provisions therein will take progressive effect immediately after ratification by the General Meeting.2. The National Elective Committee shall proceed to call for and together with the respective existing KVF branches supervise the simultaneous county branch election in all the existing 47 counties.3. Incumbent branch officials will have a voting right in their domicile respective branches. A complete list of these preferences must be arrived at in a duly constituted branches executive committee meeting and furnished with the Secretary General at least 14 days before the branch elections.

61. The gravamen of the Application in SDTSC No. E012 of 2023 is that the KVF is seeking to hold its national elections before the county-based branches have conducted theirs so as to constitute their executive committees from which they will then appoint or nominate the relevant number of delegates to represent them at the AGM. The further complaint is that the institutional branches being the Kenya Primary Schools Sports Association, the Kenya Secondary Schools Sports Associations and the Kenya University Sports Association will be disfranchised because of the requirement that they must forward their certificates of registration from the Sports Registrar at least five (5) days prior to the AGM. These requirements were as circulated in the guidelines dated 6th March 2023 but which were only circulated on 15th April 2023 and these institutions will therefore only have between 15th and 24th April 2023, a period of just nine (9) or so days within which to comply with the requirement.

62. The requirement at Article 6. 10(2) requiring that the holding of branch elections is intended to ensure that those officials of the branch who are ultimately designated as delegates are legitimate representatives in the branch. In its decision in Football Kenya Federation v. Sports Registrar & Others SDTSC No. 3 & 5 of 2020, the Tribunal observed as follows:Further, the avenue allowed under Regulation 4(4) to the effect that where an organization is applying for registration for the first time, the organization may use the particulars of an interim official could potentially be used by national sport organizations to subvert the democratic process required under the Second Schedule to the Act and bring into the leadership of a county sports organization persons who are ‘sponsored’ by the national organization and have no support amongst the sporting fraternity at the county level.

63. Counsel for the KVF argues that the requirement for registration is a legal requirement set out in the Sports Act and that the institutions should have been aware that they can only be recognised as sports organisations after they have registered with the Sports Registrar, and their failure to achieve registration should not hold back the elections, their likely disfranchisement notwithstanding.

64. This argument is disingenuous when one considers that the Certificate of Registration No. 42 issued to the Federation on 24th May 2018 contained express requirements including the requirement that the Federation review its Constitution within three (3) months from the date of the certificate. It has taken the Federation almost five (5) years to comply with this requirement.

65. In any event, the Panel is unable to discern the basis upon which the Federation and its Counsel insist that the institutional members are required to register.

66. Section 46 of the Act provides for registration of Sports Organizations and states as follows:(1)A body shall not operate as a sports organization unless it is registered under this Act.(2)The Registrar shall register sports organizations as either—(a)a sports club;(b)a county sports association; or(c)a national sports organization.’’

67. Rule 4(1) of the Sports Registrar Rules and Regulations 2016 then provide as follows:‘’A sports organization may apply to the Registrar to be registered as a sports club, a county sports association or a national sports association.’’

68. A plain reading of the provisions in both the Act and the Regulation do not disclose the basis or category in which educational institutions such and those specified in the KVF Constitution are to be registered and the Sports Registrar must provide the necessary guidance to these institutions.

69. Indeed, the Panel is not surprised that while various counties have successful achieved registration, these institutions are still at sea.

70. Article 3. 4 of the KVF Constitution provides for the ‘Supremacy and Observance of the Constitution’ and states inter alia that “the Federation and member branches agree that they are bound by this Constitution and that this Constitution operates to create uniformity in the way in which the objects of the Federation and the sport of volleyball are to be conducted, encouraged, promoted and administered in Kenya”.

71. It is the responsibility of the Federation in the first instance to act in compliance with its own constitution in relation to the conduct of its elections and other affairs. Such fidelity to the Constitution is what gives legitimacy to the functions and processes of any sports organisation.

72. Counsel for the Federation urged that we allow the Federation to have continuity in the conduct of its affairs by allowing the elections to be held. He disclosed in the same breath that the current office holders have had their terms of office extended more than three (3) times.

73. We think it will be clear by now that the Panel elevates legitimacy over continuity. It is legitimacy which will stand the Federation in good stead as it conducts its affairs, including the excellent performances on the sporting field which Counsel highlighted.

74. Article 81 of the Constitution of Kenya sets out the general principles of the electoral system as follows:The electoral system shall comply with the following principles—a.freedom of citizens to exercise their political rights under Article 38;b.not more than two-thirds of the members of elective public bodies shall be of the same gender;c.fair representation of persons with disabilities;d.universal suffrage based on the aspiration for fair representation and equality of vote; ande.free and fair elections, which arei.by secret ballot;ii.free from violence, intimidation, improper influence or corruption;iii.conducted by an independent body;iv.transparent; andv.administered in an impartial, neutral, efficient, accurate and accountable manner.

75. Universal suffrage simply refers to the right of all adult citizens, subject to qualification, to vote at an election. The question therefore is whether there is justifiable basis for excluding institutional members from voting at the national level and for not facilitating the holding of elections at county branch level before these counties can select legitimate delegates to represent them at the national elections.

76. If the elections are allowed to proceed without these constituencies, the opportunity for participation will be lost until the next national elections which will not be held for another four (4) years. This is irreparable and irretrievable loss which cannot be compensated.

77. For the foregoing reasons, we have come to the conclusion that the Applicants have made out a good case for the grant of the orders sought and the Tribunal accordingly issues orders in the following terms:

i.That there will be an order suspending the Kenya Volleyball Federation Annual General Meeting (AGM) scheduled to be held on 29th April 2023 whether at Nyayo National Stadium or at Roasters Hotel in Nairobi;ii.The Kenya Volleyball Federation shall take steps to hold a proper Annual General Meeting (AGM) within ninety (90) days from the date hereof, that is to say on or before 29th July 2023. iii.The Kenya Volleyball Federation will take appropriate steps, prior to the holding of the AGM, to hold elections of its branches as contemplated by Article 6. 10 of its Constitution and in compliance with Rule 6 of the Sports Registrars Rules and Regulations 2016;iv.The Kenya Volleyball Federation shall facilitate the full participation of the educational and institutional branches in the AGM including the elections. For the effectual compliance with this order, the Sports Registrar shall provide appropriate guidance to the educational and institutional branches relating to the provisions under which they are required to apply for registration and shall, if appropriate, facilitate their registration prior to the AGM;v.The officials of the Kenya Volleyball Federation presently holding office will continue in office for a further ninety (90) days in order to ensure continuity in the functions and activities of the Federation;vi.This matter shall be mentioned periodically before the Tribunal for the purpose of monitoring compliance with these directions. The first such mention to be held on Tuesday, 30th May 2023 at 2:30 p.m.vii.Each party shall bear its own costs of the Application.

DATED THIS 28TH DAY OF APRIL, 2023. Signed:.................................................John M Ohaga, SC; CArb; FCIArbChairpersonMr. Gabriel Ouko, Member Mr. Allan Mola Owinyi, MemberProtocol: This decision has been delivered by the Tribunal remotely by circulation to the parties’ representatives by email and subsequent release to eKLR. A copy of the fully signed decision will be available for collection by the parties from the Tribunal registry in due course.