[2024] KESDT 1560 (KLR)

Ogol v Football Kenya Federation Electoral Board & 2 others (Tribunal Case E040 of 2024) [2024] KESDT 1560 (KLR) (7 November 2024) (Ruling)

Neutral citation: [2024] KESDT 1560 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Tribunal Case E040 of 2024

John M Ohaga, Chair

November 7, 2024

Between

Tom Odhiambo Ogol

Claimant

and

Football Kenya Federation Electoral Board

1st Respondent

Registrar of Sports

2nd Respondent

Football Kenya Federation

3rd Respondent

Ruling

1. The Appellant appeared before us through counsel Mandela Migele to advance the application by way of Notice of Motion dated 4th November, 2024.

2. The Application is premised primarily on two limbs;a.The first being that the Appellant has been omitted from the list of candidates for the position of Chairperson Homabay County in the forthcoming FKF elections scheduled for 9th November 2024. b.Secondly, there are delegates who are not members of the clubs they purport to represent as evidenced by the minutes of meetings and various resolutions and that their presence is a deliberate attempt to subvert the electionsl .

3. The Tribunal gave an opportunity to Mrs. Ligunya, Advocate on behalf of the Electoral Board to make representation as to the basis upon which the candidature of the Appellant has been rejected.

4. Due to the very limited time before the event which is sought to be challenged and in respect of which an injunction is sought, the Tribunal preferred to deal the election of officials at national, branch and sub-branch levels shall be done directly and only registered club members are entitled to vote at those elections; with the merits of the Appeal itself and allowed the parties to address the matter orally and indeed gave significant latitude to the parties representatives to address the matters arising and consult their respective clients as necessary for further instructions or information.

5. The Appellant's candidature is supported by the affidavit of one Joab Oreta who affirms that the candidate is a patron of a football club Kalanding FC and Gideons Women's Club and has previously also been the Chairman of the West Nyanza FKF branch.

6. The Appellant contends therefore, that he has established his affiliation to FKF as well as his participation in football activities within the last two years as required under the Electoral Code.

7. As we understand it, the sole basis upon which the Electoral Board has rejected his candidature is that he is the chairperson of the Homabay County Football Association, which is a rival association and by reason thereof, he should be excluded from participation in the forthcoming elections.

8. The Tribunal is unable to uphold that position. The position taken by the Election Board is inimical to constitutional values relating to freedom of association as well as the tenets relating to the holding of elections for sports federations as stated in the Second Schedule to the Sports Acts0 as well as Section 46 of the Act, which requires that membership of all national sports associations shall be open to the public in their leadership activities and membership.0elections shall be held in accordance with the general principles for the electoral system as stipulated in Article 81 of the Constitution;

9. The exclusion of members by reason of their affiliation with a separate organization which is not set out in an explicit rule cannot be sustained by the Tribunal. Section 46 of the Sports Act requires sports organizations to open to the public in their leadership, activities and membership and it must be shown that there is an express rule barring the candidature of an individual on the basis that he is an official of a county football association.

10. For that reason, the Tribunal directs that Tom Odhiambo Ogol's candidature for the position of Chairperson Homabay County be put forward.

11. That leaves us with the second question relating to the allegation that the delegates list contains names of individuals who are not members of the clubs in respect of which their names have been put forward.

12. We recognize that this allegation, if proven, has the potential to subvert the candidature of the Appellant as well as other candidates and accordingly it is the Tribunal's view that in the absence of a demonstration that the delegates are bonafide, the purpose of competitive elections will be defeated.

13. For that reason, with respect to elections for Homabay County scheduled for 9th November 2024, the Tribunal issues an interim injunction restraining the holding of those elections until the question of the bona fide of the delegates is determined.

14. The Tribunal accordingly directs that the Respondents address that issue by way of affidavit setting out the basis upon which the delegates have been selected and their affiliations to the various clubs within the next five (5) days.

15. The matter would be mentioned on the 12th of November 2024 at 2. 30 pm for necessary directions.

DATED AND DELIVERED AT NAIROBI THIS 7TH DAY OF NOVEMBER 2024SIGNEDJOHN M. OHAGA SC, CARB; FCIARBCHAIRPERSON, SPORTS DISPUTES TRIBUNALIn the presence of:HON. E GICHURU KIPLAGAT, MEMBERHON. GABRIEL OUKO, MEMBER,HON. MARY N KIMANI, MEMBERHON. BERNARD MURUNGA, MEMBER