[2023] KESDT 20 (KLR)

Olendo v Kenya Rugby Union & 8 others (Tribunal Case E033 of 2022) [2023] KESDT 20 (KLR) (14 February 2023) (Decision)

Neutral citation: [2023] KESDT 20 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Tribunal Case E033 of 2022

John M Ohaga, Chair, E. G. Kiplagat & A.M Owinyi, Members

February 14, 2023

Between

Raymond Olendo

Petitioner

and

Kenya Rugby Union

1st Respondent

Geoffrey Oduor Gangla

2nd Respondent

Moses Olukoye Ndale

3rd Respondent

Joshua Aron Makiya

4th Respondent

Ian Mugambi Mururu

5th Respondent

James Oscar Mango

6th Respondent

Leslie Mwangale Injenga

7th Respondent

Sports Registrar

8th Respondent

Paula Nzisa Lanco

9th Respondent

Decision

A. Introduction I. The Parties 1. The Petitioner is a resident of Kisumu Town and a Director with the 1st Respondent in charge of the National 15s team – Simbas, holding office pursuant to Clause 10. 25 of the KRU Constitution.

2. The 1st Respondent, Kenya Rugby Union (‘KRU’ or ‘the Union’) is an umbrella national sports organisation registered under the Sports Act in charge of running the Sport of Rugby in Kenya.

3. The 2nd Respondent is the current Chairman of the KRU and an officer per clause 10. 2.1 of the KRU Constitution.

4. The 3rd Respondent was one of the candidates for the position of Vice Chairman in the impugned election of KRU held on 6th September 2022 and was returned as the winner for the position of Vice Chairman.

5. The 4th Respondent was one of the candidates for the position of Treasurer in the impugned election of KRU held on 6th September 2022 and was returned as the winner for the position of Treasurer.

6. The 5th Respondent was one of the candidates for the position of Secretary in the impugned election of KRU held on 6th September 2022 and was returned as the winner for the position of Secretary.

7. The 6th Respondent was one of the candidates for the position of Director in the impugned election of KRU held on 6th September 2022 and was returned as the winner for the position of Director.

8. The 7th Respondent was one of the candidates for the position of Director in the impugned election of KRU held on 6th September 2022 and was returned as the winner for the position of Director.

9. The 8th Respondent is the Sports Registrar and is an office established pursuant to Section 45 of the Sports Act, charged with the Responsibilities of registration and regulation of sports organizations in the Country.

10. The 9th Respondent is a representative of Rugby Afrique which is the Continental Rugby Associations established by member unions including KRU to promote, foster, develop and extend the game of Rugby throughout all parts of Africa.

II. Facts 11. The Kenya Rugby Union Constitution, 2010 mandates that elections should be held every four years. This provision is consistent with the provisions in the Sports Registrar Regulations of 2016.

12. The officials had been in office since March 2019 and their term was due to expire on 30th March 2022. Consequently, the Union made plans to hold elections on 30th March 2022 and issued a Notice on 28th February 2022.

13. However, the Sports Registrar wrote to the Union on 29th March 2022 advising them to postpone the elections for 2 months because only a select few members had registered with the Registrar as well as County Sport Associations were required to be registered as affiliates of the Union and the same had not been done yet.

14. The Board held the AGM as planned on 30th March but convinced the Union to postpone the elections for a period of two months to enable KRU to register the clubs and the County Sports Associations.

15. The Board held an emergency meeting on 31st March 2022 and to avert a constitutional crisis, appointed Director Kikechi Kombo as the Vice Chairman to ensure that the Board was properly constituted.

16. The lapse of two months had not brought about any change and the term kept on getting extended until 6th September 2022 when the Union held its Annual General Meeting (AGM) to among others, elect new officials and to vote on the County Associations.

17. The elections took place to completion. Soon after, the Petitioner instituted this suit seeking for a declaration that the elections were illegal and that the same should be overturned.

B. Pleadings And Preliminaries 18. The suit was instituted through a Petition dated 4th October 2022 and sought the following orders:a.A declaration be and is hereby issued that the Kenya Rugby Union elections held on 6th September, 2022 were held in contravention of the Constitution of Kenya 2010, the Sports Act, 2013, the Sports Registrar Regulations, 2016 and the Kenya Rugby Union Constitution, and therefore a nullity;b.A declaration be and is hereby made that the 4th, 5th and 6th Respondents were illegally in office upon the expiry of their term on 31st March, 2022;c.A declaration be and is hereby made that the 3rd, 4th, 5th, 6th and 7th Respondents were not validly elected on the 6th September, 2022;d.An order be and is hereby made that the Kenya Rugby Union shall hold fresh elections within 30 days of the Judgment herein in accordance with the Kenya Rugby Constitution;e.AN ORDER that the election should be conducted by an independent panel of 5 members nominated as follows;-i.The board of KRU to nominate 2 members each from either genderii.Kenya Cup sides to nominate 1 memberiii.Championship sides to nominate 1 memberiv.Women’s Rugby to nominate a woman memberv.The CEO of Kenya Rugby Union will be the secretary with no voting rightf.An order be and is hereby made directing that only eligible contestants and members shall participate in fresh Kenya Rugby Union elections;g.A declaration that the 8th Respondent is not fit to hold the office of Sports Registrar for failing to give a purposive meeting to the Act that promotes sports, and for contravening the provisions of the Sports Act, the Sports Registrar’s Regulations, the Constitution of the National Sports Organization and failing to obey valid tribunal orders and the provisions of the Constitution of Kenya 2010;h.A declaration be and is hereby made that the Kenya Rugby Union Constitution, 2010 as registered is in contravention of the Constitution of Kenya 2010, the Sports Act, 2013 and the Sports Registrar’s Regulations of 2016;i.AN ORDER be and is hereby made directing that the new officials of the Kenya Rugby Union shall within 90 days of taking office, commence and effect the amendment and registration of the Kenya Rugby Union Constitution that is in compliance with the Constitution of Kenya 2010, the Sports Act, 2013, the Sports Registrar Regulations, 2016;j.This honourable Court be pleased to issue any other order that may deem to be fit and just to ensure that the rule of law and order is upheld and maintained;k.Costs of this petition.

19. The Petition was supported by the Affidavit sworn by Raymond Olendo dated 5th October 2022.

20. A Notice of Appointment of Advocate dated 6th October 2022 was filed by the Advocates for the 1st Respondent.

21. A Notice of Preliminary Objection was filed by the 1st Respondent on 13th October 2022.

22. The 2nd Respondent’s Advocates filed a Notice of Appointment dated 27th October 2022 to formally come on record for the 2nd Respondent.

23. The 1st, 5th and 9th Respondents filed a Memorandum of Appearance dated 14th November 2022.

24. The 5th and 9th Respondents each filed another Memorandum of Appearance dated 16th November 2022.

25. The 9th Respondent filed a response to the Petition by way of Replying Affidavit sworn by the 9th Respondent dated 15th November 2022.

26. The 1st Respondent filed a response to the Petition by way of Replying Affidavit dated 15th November 2022 sworn by Ian Mugambi Mururu.

27. The 1st Respondent filed submissions dated 15th November 2022 on their Notice of Preliminary Objection. Additionally, the 1st, 5th and 9th Respondents filed their submissions to support their replying affidavit. The submissions were dated 15th November 2022.

28. The 5th Respondent filed a response to the Petition by way of Replying Affidavit dated 15th November 2022 and sworn by himself.

29. The 6th Respondent filed a Replying Affidavit sworn in opposition to the Petition dated 15th November 2022 and sworn by James Oscar Mango.

30. The 2nd Respondent filed a response to the Petition by way of Replying Affidavit dated 18th November 2022 and sworn by himself.

31. The Petitioner filed Grounds of Opposition to the Preliminary Objection dated 17th November 2022.

32. The Petitioner filed Submissions on the Preliminary Objection as well as the Petition on 25th November 2022. Additionally, the Petitioner filed Responses to all the filed Replying Affidavits dated 21st November 2022.

33. The 2nd Respondent filed submissions on the main Petition dated 30th November 2022.

34. The 1st, 5th and 9th Respondents filed Supplementary Submissions on their Replying Affidavit dated 12th December 2022.

35. The 6th Respondent filed submissions in opposition to the Opposition dated 13th December 2022.

36. The 8th Respondent filed a Replying Affidavit dated 5th day of January 2023 sworn by herself in response to the main Petition. The 8th Respondent further filed written submissions dated 6th January 2023 in support of their position.

C. Substantive Claims . The Petitioner’s Case 37. The Petitioner’s case is that the Sports Dispute Tribunal has Jurisdiction by dint of Regulation 20(7) of the Sports Registrar’s Regulations (2016) (‘the Regulations’). The Petitioner also argues that there is no express provision providing for appeals against elections in the Kenya Rugby Union Constitution or otherwise. The Petitioner argues that under Clause 10. 23. 2 of the KRU Constitution, the jurisdiction and function of the Appeals Committee is limited to only hearing appeals from the decisions of the Disciplinary Sub-Committees. The Petitioner further argues that under Clause 10. 15 of the KRU Constitution the Board does not have powers to resolve disputes raised by the Petitioner.

38. In lending further credence to his case, the Petitioner pointed out that the Petition is challenging the interpretation, decision and conduct of the Sports Registrar in the manner that she presided over the elections that took place on 6th September 2022.

39. The Petitioner further argues that as a result of the postponement of elections from 30th March 2022 on the Registrar’s advice, the Board appointed a Vice Chair and the 4th and 6th Respondents continued to be in office illegally until 6th September 2022 when elections were held. The Petitioner contended that he was overruled in the decision for members to overstay their term in office pending elections.

40. The Petitioner argues that the elections were a sham. He contends that the 5th Respondent embarked on the process of registration in a biased manner and registering teams that would support him in the vote and frustrating the registration of some teams. Further, the Petitioner contends that the 5th Respondent embarked on the process of registration of County Sports Associations to the exclusion of teams that were not in favour of voting for him. He further alleges that there was registration of Clubs not affiliated to KRU and that none of the registered County Sports Associations were affiliated to KRU.

41. The Petitioner contends that after the 5th Respondent notified the Board of progress in Registration, the Board issued a notice on 7th August 2022 to the Union notifying them of elections to be held on 6th September 2022. The Petitioner contends that the Notice was too short considering the provisions of Clause 12. 2.6 (a) of the KRU Constitution. He further contends that the same was not remedied by a ratification in the meeting in accordance with Clause 12. 2.6 (b). Further, the Petitioner contends that an independent electoral body was not appointed and the 5th Respondent assumed all those responsibilities including clearing of candidates and arranging of elections.

42. The Petitioner argues that the 8th Respondent interfered with the election by demanding that only registered top tier clubs and the County Sports Associations would vote in an election and each club and County Associations shall have one vote. The Petitioner argues that this was in contravention with her supervisory role under Regulation 20 of the Sports Registrar’s Regulations 2016, the KRU Constitution reducing the number of votes from two and Clause 8. 1 of the KRU Constitution on eligibility of members to vote. The Petitioner further contends that the delegates could not be verified as they were not approved and seconded by their respective association secretaries.

II. The Respondents’ Case 43. The 1st Respondent argues that the Tribunal has no jurisdiction by dint of Regulation 20 of the World Rugby Regulations.

44. The 1st Respondent in an affidavit sworn by Ian Mugambi Mururu contends that the Petitioner was at all times a member of the Board and director of the 1st Respondent and was aware of all decisions, the Petitioner was part of the board meetings where any variations were made as can be seen from the minutes, the Petitioner was aware of the constitutional crisis, its severity and therefore appreciated the measures taken to remedy the same. The Petitioner was privy to all communication and he willingly participated in the elections until the very end.

45. The 1st, 5th and 9th Respondent were generally opposed to the Petition for the same reasons as the 1st Respondent above. In their submissions, they pointed out that the Petitioner was agreeable to all the changes until the elections which the Petitioner willingly participated in.

46. The 2nd Respondent argues that the KRU Constitution is consistent with the minimum provisions required under Section 46(5) of the Sports Act. The 2nd Respondent majorly agrees with the statement of facts as presented by the Petitioner. He stated that all office bearers’ terms ended on 30th March 2022. He agrees that the terms of office were extended for 60 days in the 30th March 2022 meeting after the Registrar’s advice. He agrees that the 5th Respondent conducted elections with the Board approval.

47. The 2nd Respondent further agrees with the Petitioner’s averments that the 8th Respondent insisted on making a speech and insisted that County Sports Associations be allowed to participate in the vote. He argues that KRU has regional officers and that several counties do not have Rugby clubs and it would make no sense to have County Sports Associations with only one club. He stresses that the 8th Respondent’s dictates were contrary to the already existing KRU Constitution and the new edicts threw everything into confusion. The 2nd Respondent argues that after statements had been made by the 9th Respondent to the nature that the Union would be sanctioned for significant governance issues, the present members proceeded to vote to allow County Sport Associations to participate in the vote. The 2nd Respondent argues that this amounted to an amendment of the Constitution. However, he argues that the registered procedure for amendment is strict and that procedure was not followed in the meeting. The 2nd Respondent supports the Petitioner’s prayer to declare the elections null and for the Tribunal to order fresh elections.

48. The 4th Respondent argues that there was co-option and that he recognizes that the Board was still in office at the material time. The Respondent further argues that he was uncontested and that he was eligible for re-election because he was first elected in 2019 for a term of 4 years.

49. The 5th Respondent responded in opposition to the Petition by restating the same points argued by the 1st Respondent. However, he introduces the doctrine of estoppel and argues that the Petitioner waived his right to dispute the election. He defends the co-opting of the members of the Board and makes a case for their legitimate appointment. The 5th Respondent also argued that he was mandated by the Board to carry out registration and that he did not frustrate the registration of any Rugby Club including Kitale Rugby Club. He asserts that registration was done for all clubs who had filled their paperwork and that agenda 5 of the Annual General Meeting Notice sent out on 7th August, 2022 had the agenda of affiliation of clubs.

50. The 5th Respondent further makes the case that the 75% threshold as alleged by the Petitioner could not be met by any club since the previous season had been affected by Covid-19 and the 2020-2021 season was suspended and this was the reason no club was relegated or promoted at the time.

51. The 6th Respondent argues that the Petitioner was not scheduled to run for elections during the first round of elections that were scheduled to be held on 30th March 2022. He contends that the Petitioner advised the Board to postpone the elections in line with the directive of the Registrar and the postponement was to the 6th Respondent’s favour. He contended that the Petitioner was present during the Board meeting to co-opt members to avert the constitutional crisis and that he was validly elected to office and that he prays the Petition to be struck out.

52. The 8th Respondent contended that Paragraph 4 of the Regulations reinforces Section 47 of the Sports Act by obliging Sports Organisations to have not less than 24 branches which they interpreted as County Associations in the country achieved progressively within three years from the date of registration.

53. The 8th Respondent further recognizes that the Board members’ terms expired on 30th March 2022 and argues that they should have resigned and new members elected under Clause 10. 10 should have served out the remainder of their term which ended upon the election of new members.

54. The 8th Respondent further stated that under Clause 12. 5.5 (b) of the KRU Constitution provides that all elections that any general meeting entitled to vote at any such meeting. The 8th Respondent also recognized the Judgment relied upon by the Petitioner in SDT No. 3 & 5 of 2020 above on the construction of Section 46 of the Sports Act. The 8th Respondent maintained that she did not contravene the provisions of the Constitution. She contended that the role of the Registrar in the elections was in the role of Facilitator and observer. The 8th Respondent supports the carrying out of elections by contending that the Notice was issued within 28 days as required by the Regulations. The 8th Respondent contends that the elections were free, fair and transparent as all electoral principles and regulations were adhered to.

55. The 9th Respondent admitted that she is indeed a representative of Rugby Afrique and refuted the allegations that she issued threats to force the elections to continue. She contended that her role was simply to advise the Union to avert sanctions from the World Rugby Union.

D. Issues For Determination 56. Having Considered all the facts and the pleadings herein, the Panel framed the following issues for determination:i.Whether this Tribunal has Jurisdiction to hear and determine the dispute impugning the 6th September 2022 elections of the Kenya Rugby Union Board members;ii.Whether the Office bearers were legally in office during the period between 30th March 2022 and 6th September 2022 when the elections were held; andiii.Whether the elections held on 6th September 2022 were held in an open, transparent, free and fair manner having regard to the following considerations:-a.the lack of sufficient Notice issued for the Annual General Meetingb.the lack of an Independent Panel of Members conducting the electionsc.the interference by the Registrard.possible interference by the observerse.County Sport Associations being allowed to vote

E. Analysis I. Whether this Tribunal has Jurisdiction to hear and determine the dispute impugning the 6th September 2022 elections of the Kenya Rugby Union Board members); 57. This Tribunal recognizes that the Kenya Rugby Union is an affiliate body of the World Rugby Union. However, the Kenya Rugby Union is also answerable to the Sports Act No. 25 of 2013. It is registered in accordance with Section 46 of the Sports Act. Further, the Sports Registrar is also required to regulate the governing of Sports in the Country including Rugby.

58. A reading of the World Rugby Union (WRU) Regulations does not envision a situation where compliance is required with domestic laws. However, Regulation 20 of the WRU regulations provides for Disciplinary and Judicial Matters and the appointment of Judicial Tribunals.

59. However, since there is no express provision to the contrary and by dint of their registration under the Sports Act, the Kenya Rugby Union is subject to procedures provided for under the Sports Act including the Sports Registrar’s Regulations of 2016.

60. The Sports Act and the Sports Registrar’s Regulations 2016 places legitimacy on Constitutions of Registered Sports Unions. Section 46(4)(a) of the Sports Act places a requirement on all National Sports Organizations that they should have a Constitution. It provides that:“An application for registration under this section shall be accompanied by- a certified copy of the constitution of the applicant.”

61. The KRU promulgated a Constitution in 2010 which it used to secure its Registration in the Sports Act. Clause 11 of its Constitution provides for the Appeals Council. The Appeals Council’s Jurisdiction is provided in Clause 11. 1.1 which provides that:-“From the decision of the Board on all matters coming within its power or referred to it there shall be a right of Appeal to an Appeal Council whose decision shall be final.”

62. The KRU Constitution does not seem to provide any provisions regulating disputes concerning elections of Board Members. Further the Board is vested with the powers to mete out Disciplinary Action against Members, Associate Members, Clubs, Rugby Bodies, Players, Persons and related matters by dint of Clause 10. 23. It is therefore unlikely that the Board as constituted under an election was considered to adjudicate on any dispute concerning their recently successful election to their posts.

63. So where does a disgruntled member of the Union turn to concerning Elections? The Sports Registrar’s Regulations of 2016 provide for Elections. Regulation 20(1) provides that an Organization shall hold an election according to the Rules in its Constitution. Regulation 20(7) provides that:-“A person who is dissatisfied with the results of an election may appeal to the Tribunal within thirty days of the election.”

64. 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.”

65. An interpretation of Section 58 of the Sports Act accords jurisdiction to the Tribunal and would place an electoral dispute of a Union within the ambit of Section 58(b). Section 58(b) provides that the Tribunal shall have jurisdiction if all parties to the dispute have agreed to refer the issue of elections to the Tribunal. The KRU applied for registration as was statutorily required of them and placed themselves under the supervision of the Sports Registrar. The Sports Registrar in turn made Regulations according Jurisdiction to the Tribunal for persons dissatisfied with the elections. Therefore, the KRU has effectively agreed to refer the issue of electoral disputes to the Tribunal.

66. The Tribunal is therefore not persuaded by the Preliminary Objection raised by the 1st Respondent that this Tribunal has no Jurisdiction. It finds that indeed this Tribunal is clothed with the Jurisdiction to hear and determine this matter and grant appropriate relief to any party.

II. Whether the Office bearers were legally in office during the period between 30th March 2022 and 6th September 2022 when the elections were held 67. Section 46(4) of the Sports Act, 2013 provides for Constitutions of National Sports Organizations to be registered with the Registrar simultaneously with the Registration of the Sports Organizations. Section 46(5) of the Sports Act further provides that the Constitution should contain as a basic minimum the provisions as set out in the Second Schedule. The import of the above is that every National Sports Organization’s Constitution should comply with the provisions in the Second Schedule.

68. An extract of the Second Schedule provides that:-“The constitution of a body seeking registration as a sports organisation 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;(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;“

69. Clause 10 of the KRU Constitution provides consistent provisions with the Second Schedule. Clause 10. 2.1 and Clause 10. 2.2 provide that:-“10. 2. 1The Officers of the Union who shall be entitled to one vote at any General Meeting of the Union and who shall be;a.The Chairman;b.The Vice-Chairman;c.The Secretary;(d)The Treasurer;

10. 2.2Nor more that Six (6) Members of the Board whose nominations shall be received with those of the officers and who shall be elected at an Annual General Meeting of the Union. All elected Board Members shall serve for a four year term and will be eligible for re-election in the same office for a further term of four years, in line with the Sports Act No. 25 of the Laws of Kenya. KRU officers and Board Members shall continue to retire by rotation.”

70. A perusal of the Pleadings and assertions made by both the Petitioner and the Respondents reveals that it is not in dispute that the term of the elected Board members was to lapse on 30th March 2022. An inference made of the same would mean that the Board Members were elected on or about 30th March 2019. The Board Members must have recognized this and decided to initially hold elections on 30th March 2022 when their term would lapse.

71. However, the elections did not take place on the planned date because of the advisory opinion rendered by the Sports Registrar by a letter dated 29th March 2022 to the Board. Subsequently, in the Annual General Meeting held on 30th March 2022, the Union decided not to proceed with the elections.

72. According to the official Minutes, the Petitioner herein advised the Union that the quorum for the AGM was ten members eligible to vote and at the time, only two members were eligible to do so. The minutes contain a proposal that the Board members whose terms were coming to an end be allowed to proceed in the interim until things were in order. The Board was then tasked to offer guidance on the next steps by the Union.

73. Several of the Respondents have alleged that the office bearers, whose terms have certainly come to an end, have been validly in office because their term has not expired or that they were co-opted to continue running the affairs of the Union.

74. Concerning the former, this Tribunal is persuaded that the four (4) year term provisions are deliberate. Both the Sports Registrar Regulations as well as the KRU Constitution provide for strict four-year terms with the option of re-election. The wording of the provisions on both pieces of legislation do not state that the terms shall be reliant upon whether elections are held. The correct construction of the provisions is that the terms shall be for four years regardless of whether elections are held. Consequently, the argument that the Office Bearers were validly in office until 6th September 2022 is not acceded to by the Panel.

75. Concerning the latter, the Pleadings have continuously alluded to a co-option. Clause 10. 2.4 of the KRU Constitution provides that:-“Such other persons as may be deemed fit to be co-opted from time to time by the Board by majority vote and in its sole discretion, but without the right to vote, to ensure a balance in representation and equity on the Board, provided that they shall have specialist knowledge, skills or experience of the administration and management of the game; “

76. Upon reading of the above clause, we are not persuaded that an office bearer can simply be co-opted and continue to serve past the expiry of their term. There are several reasons for our disagreeing with this construction.

77. The first reason is that the office bearer has a vote by dint of Clause 10. 2.1 while a co-opted member has none. Secondly, the co-opted members are co-opted for their experience and to ensure a balance of representation and equity on the Board not to vitiate a constitutional crisis as has been alleged by several of the Respondents. A clear construction of the provision finds that this provision is only meant to enrich the decisions of the Board members currently sitting by providing invaluable experience and insight rather than to make up the key players of the Board.

78. This Tribunal observes that indeed in light on the finality of the four (4) year terms, the KRU Constitution incorporated a brilliant clause to ensure continuity even when the 4-year term cannot be adhered to. Clause 10. 4 of the KRU Constitution provides for a system where the Board retires by rotation by having staggered elections.

79. A reflection upon the impugned elections reveals that the elections were to replace some of the Board members. The elections were held for the Treasurer, Secretary, Vice-Chair and Two Directors positions. Three of these positions were for three of the Office Bearers and two of the Six members of the Board. The KRU Constitution further provides for the ability of the Vice Chairman to take over the duties of the Chairman in the event of his absence.

80. Sadly, the solution to the conundrum of Board members is not that simple. This Tribunal notes that the Quorum of a meeting of the Board shall be not less than five (5) members entitled to vote including at least two (2) officers. These events present a conundrum as to whether the board was legally sitting considering there was only one office bearer in the Board during the 6 months from 30th March 2022.

81. In the Annual General Meeting on 30th March 2022, the Union seemingly allowed the Board Members to carry on with their offices until the issue of compliance with the Registrar is resolved. For the avoidance of doubt, this Tribunal finds this action to be unconstitutional and not in compliance with the Sports Registrars Regulations.

82. However, the officers continued operating under this mandate despite their terms coming to an end. This would pose a question for this Tribunal to determine whether any acts done by the Board were ultra vires and ought to be quashed.

83. Gratefully, the Tribunal need not resort to the determination of this question as a result of Clause 10. 2.4 which provides for validity of Acts. It provides that:-“All Acts of the Board, or of a sub-committee or ad hoc committee of the Board, or of any person acting as a member of the Board, shall, notwithstanding that it be afterwards discovered that there was some defect in the election/appointment of such person or that the members of such sub-committee or of the Board or of any of them were disqualified, be as valid as if every such person had been duly elected/appointed and was qualified to be a member of the Board, sub committee or ad hoc committee.” (emphasis added)

84. For the avoidance of doubt, this Tribunal finds that the office bearers of the Board were not legally in office from 30th March 2022 to 6th September 2022 when the elections were held. However, Clause 10. 2.4 of the KRU Constitution coupled together with the mandate of the Union given on 30th March 2022 make all Acts committed by the Board members not legally present in office to be valid as if the Board members were legally present in office.

III. Whether the elections held on 6th September 2022 were held in an open, transparent, free and fair manner 85. Article81(e) of the Constitution of Kenya (2010) defines a free and fair election as -“The electoral system shall comply with the following principles free and fair elections, which are –i.by secret ballotii.free from violence, intimidation, improper influence or corruption;iii.conducted by an independent bodyiv.transparent; andv.administered in an impartial, neutral, efficient, accurate and accountable manner.”

86. Perhaps briefly we can address the issue raised by the Petitioner about whether the KRU Constitution is consistent with the laws of Kenya. The KRU Constitution as registered was enacted in 2010 and the Sports Act was enacted in 2013. Some of the irreducible minimums in the Second Schedule of the Sports Act have not been captured in the KRU Constitution. On that limb we are sufficiently persuaded. However, this defect is not fatal as we shall simply infer the irreducible minimums to be part of the KRU Constitution and where there are inconsistencies between provisions, we shall give supremacy to the provisions of the second Schedule.

87. The Second Schedule of the Sports Act No. 25 of 2013 paragraph (d) provides that:-“elections shall be held in accordance with the general principles for the electoral system as stipulated in Article 81 of the Constitution.”

88. Regulation 20 of the Sports Registrar’s Regulations of 2016 provides for elections. Regulation 20(1) provides that:-“An organization shall hold election in accordance with the Rules provided in its constitution.”

89. Regulation 20(2) further provides that:-“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; andg.ensure that the office of the chairman or president, secretary and treasurer are reserved for Kenyan citizens only.”

90. An examination of the KRU Constitution reveals that Clause 10. 3, 12. 2.7(d) and 12. 5.5 make general provisions regarding elections. They provide that Board Members shall be elected at an Annual General Meeting. The start of the election period as envisioned in the KRU Constitution can be inferred from the provisions providing for a Notice of the AGM.

91. Clause 12. 2.6 imposes a time frame within which the Notice of the AGM should be sent. It provides that a Notice shall be issued at least 30 calendar days before the fixed date. It further provides that the Notice shall state the place, day, time and the business to be transacted including election of officers and directors in accordance with Clause 12. 2.7(d).

92. Clause 12. 5.5 of the KRU Constitution provides for elections. It provides that:-a.At any General Meeting of the Union, the election shall be done by way of ballot.b.All elections at any General Meeting of the Union shall require the majority of the votes of all persons present and entitled to vote at such meeting.c.Elections of Official shall become effective as from the close of the meeting at which they have been elected.

93. The members entitled to vote according to Clause 12. 5.5(b) are defined in Clause 12. 5.6(b) which provides that:-“Members shall exercise their vote subject to Clause 8. 1.1. where Officers of the Union shall have one (1) vote whether on a show of hands or ballot.”

94. Clause 8 further elucidates on who shall be entitled to vote at an AGM. Clause 8 makes provisions for Membership of the Union. It makes a distinction that there shall be two classes of Membership with the first being Full Membership and the other being Associate Membership.

95. Clause 8. 1 provides for a full member’s entitlement to vote at the AGM and is specifically separated into Clubs that shall be entitled to two votes and Clubs that are entitled to One vote. Both Clubs need to have played at least 75% of the league fixtures during the season. However, the key demarcation is the whether the Club has two sides in both the Senior League and the Second Division League. It is meant to correspond to how many sides a Club has in the two leagues. Clause 8. 1 also provides for an Association, Society or Body which has been admitted to full membership of the Union to have one vote.

96. Clause 8. 2 provides for Associate Membership of the Union. An Associate member shall have all the rights and privileges of a Member save for the right to submit a motion, to second a motion and to vote at any meeting of the union.

97. Clause 8. 3 provides for the process of Admission of New Members and Associate Members. The process commences with a written application to the union which is proposed and seconded by at least two (2) members of the Union. It shall also include a declaration to be bound by the Constitution. The Application shall be considered at the AGM. Clause 8. 3.4 provides for the threshold of the majority for a member or an associate member to be admitted.

98. For a valid AGM to have occurred, the AGM needs to have been properly constituted and a quorum reached. Clause 12. 4.1 provides for Quorum at a General Meeting and provides it at 10 members entitled to vote at the material time. Clause 12. 4.2 provides that no business shall be transacted at any General Meeting of the Union unless a quorum is present.

99. Now that we have established the procedure of the elections of the KRU, the members entitled to vote and the quorum needed for a valid AGM, we can afford to look at other clauses governing the election of officials.

100. Clause 12. 5.7 of the KRU Constitution further provides for Observers and Media in the context of elections. It provides thus:-“It shall be the prerogative of the meeting to allow observers and members of the media at any General Meeting of the Union. If so allowed, such observers shall have no voting rights and shall not be entitled to speak at such meeting.”

101. In determining whether the 6th September 2022 KRU elections were held in an open, transparent, free and fair manner, this Tribunal shall evaluate whether the proper procedure for elections were followed and whether there was an interference with the elections.

102. The Supreme Court in Odinga & another v Independent Electoral and Boundaries Commission & 2 others; Aukot & another (Interested Parties); Attorney General & another (Amicus Curiae) (Presidential Election Petition 1 of 2017) [2017] KESC 42 (KLR) (Election Petitions) (20 September 2017) (Judgment) relied on Kham and Others v Electoral Commission and Another to define free and fair elections. It stated that:“Despite not having a universally acceptable definition of a free and fair election, there are certain common attributes to that description. They were aptly expressed by the Constitutional Court of South Africa in the case of Kham and Others v Electoral Commission and Another (CCT64/15) [2015] ZACC 37; 2016 (2) BCLR 157 (CC); 2016 (2) SA 338 (CC).(34)There is no internationally accepted definition of the term"free and fair elections. Whether any election can be so characterised must always be assessed in context. Ultimately it involves a value judgement. The following elements can be distilled as being of fundamental importance to the conduct of free and fair elections. First, every person who is entitled to vote should, if possible, be registered to do so. Second, no one who is not entitled to vote should be permitted to do so. Third, insofar as elections have a territorial component, as is the case with municipal elections where candidates are in the first instance elected to represent particular wards, the registration of voters must be undertaken in such a way as to ensure that only voters in that particular area (ward) are registered and permitted to vote. Fourth, the Constitution protects not only the act of voting and the outcome of elections, but also the right to participate in elections as a candidate and to seek public office.”

a. Whether sufficient Notice was issued for the Annual General Meeting 103. The Petitioner has alleged that sufficient notice was not issued for the AGM. He states that the Notice of the meeting was issued on 7th August 2022. He relies on the provisions of Clause 12. 2.6 and 12. 2.7(d) of the KRU Constitution.

104. Clause 12. 2.6 imposes a time frame within which the Notice of the AGM should be sent. It provides that a valid notice shall be issued at least 30 calendar days before the fixed date. The Clause further provides that the Notice shall state the place, day, time and the business to be transacted including election of officers and directors in accordance with Clause 12. 2.7(d).

105. The notice issued on 7th August, 2022 was defective going by the above provisions. This Tribunal is persuaded with the construction of the Petitioner in that the 30 calendar days were not supposed to be inclusive of the date of the notice. For a notice to be at least 30 calendar days before the 6th September 2022, the Notice needed to have been issued on 6th August 2022. By the correct construction of the KRU Constitution, the term of 30 days from when the Notice was issued on August 7th, 2022 was to lapse on 7th September 2022 but the elections were held on 6th September 2022. We are therefore not convinced that the Notice was properly issued for the 6th September 2022 meeting.

106. In response, the Registrar submitted that the Notice was compliant because the Notice required to be issued was for four weeks which is 28 days. The Registrar relied on Regulation 20(2)(d) which provided that:-“inform the Registrar at least four weeks prior to the expected date of the elections;”

107. This Tribunal is not convinced that the very provision was intended to issue a notice of 28 days to the members of the National Sports Organization. We believe that the correct construction is that elections shall be held according to the relevant National Sports Organisation’s Constitution including their own provisions of notice and additionally, they shall be required to give a notice to the registrar. This Tribunal finds that for proper procedure to be followed there needs to be two notices. One notice to the member of the Sports Organisation communicating the time frame and another notice to the Registrar at least four weeks before the election.

108. In the instant case, the Members of KRU should be notified at least 30 calendar days before the fixed date according to Clause 12 of the KRU Constitution. Additionally, the Registrar ought to have been notified at least four weeks before the election date. The provisions of the KRU Constitution were not adhered to in the Notice issued on 7th August 2022. To this end the Registrar’s submissions might have misapprehended the argument put forth by the Petitioner.

109. However, the KRU Constitution contemplated a situation where the notice would be issued for fewer days. Clause 12. 2.6 (b) provides that:-“An Annual General Meeting of the Union, shall notwithstanding that it is called by shorter notice than provided for in clause 12. 2.6 (a) hereof, be deemed to have been duly called if it is so agreed by all persons attending the meeting and entitled to vote thereat, provided that the number of persons thus agreeing constitute not less than seventy-five percent (75%) of all persons entitled to attend and vote at the meeting concerned.”

110. The 6th September 2022 meeting did not attempt to cure this defect. The union members seemed to be so concerned about the elections that the lack of sufficient notice was not discussed.

111. We have outlined above that the Notice issued convening the AGM is an integral part of the election process of KRU officials. The lack of sufficient notice coupled with the lack of ratification by 75% of the members is a sufficient cause for concern about whether the correct procedure was followed and whether the electoral process was open, transparent and fair.

b. Whether there was an Independent Panel of Members conducting the elections 112. The Petitioner has alleged that the 5th Respondent assumed the running of the elections which included among others, facilitating the registration of members.

113. A perusal of the pleadings and submissions that have been put forth for consideration before this Tribunal reveal that this assertion has not been challenged by any party to this proceeding.

114. We find this position to be peculiar. Firstly, the 5th Respondent was running for the position of an office bearer as the Secretary of the Board. It has been alleged that he has been frustrating the registration of Rugby Clubs for his own gain. No proof has been tendered to enable this Tribunal to fully agree that the same was done. However, it is worth noting that during campaigns, it is of paramount importance to have a semblance of transparency and accountability that cannot be achieved with having a candidate preside over the formalities of a hotly contested election. There should be an independent panel of members helping to oversee the elections.

115. Secondly, the Registrar’s Regulations are clear that an independent panel of members should oversee sports organization elections. Regulation 20(2)(a) expressly provides that:“Notwithstanding paragraph (1), a sports organization seeking to hold an election shall appoint an independent panel consisting of at least five members to conduct the election;”

116. The appropriate construction of the provisions is that although the Regulations impose an obligation on Sports Organizations to run the elections according to the rules of its Constitution. We have pointed out the rules governing election of its officials under the Constitution and have found no express provision for running of these elections. However, notwithstanding any rules that the Sports Organisation may make, there are irreducible minimums that an election should have and among them is an independent panel of at least five (5) members to conduct the election.

117. It has not been disputed that an Independent Panel was not appointed to oversee the conduct of elections of KRU elections. The Secretary of the Union was left to oversee the elections of among others, himself and appropriated the work that should be conducted by five independent members of the union.

118. This Tribunal is not persuaded that the elections held on 6th September 2022 are compliant with the Regulations in this regard. However, we shall evaluate the rest of the considerations as to whether the elections were properly conducted shortly.

c. Whether there was interference by the Registrar 119. The Sports Registrar enjoys a supervisory role over Sports Organisations. The Registrar regularly requires compliance of Sports Organizations with the Sports Act and the relevant provisions of the law.

120. This role is indirect by nature. The Sports Registrar is supposed to execute the functions of her office without directly impacting Sports Organisations. We construe the fact that Sports Organisations conduct elections and have their own constitutions to mean that they enjoy independence from the office of the Sports Registrar. The only circumstance where the interference of the Sports Registrar is welcomed by the law is when a Sports Organisation is non-compliant with the law.

121. The Sports Registrar wrote a letter to KRU on 29th March 2022 advising them that they ought to postpone the elections for the reasons that there was no registration of members according to Section 46 of the Sports Act and that the County Sports Associations were not registered. An earlier letter had been sent by the Registrar indicating that she would attend the AGM with the Principal Sports Officer and that this would be the last time that Sports Clubs would be allowed to vote as she advocated for County Sports Associations to vote.

122. On the first limb, this Tribunal agrees that the Sports Registrar was ensuring compliance with the law. Section 46(1) provides that a body shall not operate as a sports organisation unless it is registered under the Act. The Registrar was well within the law in requiring that KRU clubs comply with this provision of the law before their AGM.

123. On the Second limb, this Tribunal disagrees that the Registrar made a lawful decision to interfere with the KRU Constitution. We believe that the Registrar has misapprehended the application of Section 46 of the Sports Act.

124. Section 46(5) of the Sports Act, 2013 provides that a constitution to be submitted to the Registrar shall have as a minimum the provisions set out in the Second Schedule.

125. The Second Schedule of the Sports Act provides that a constitution 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(g)that 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”

126. This Tribunal finds that all Sports Organisations have the autonomy to determine their own membership process and on who is supposed to be registered as a club member. The KRU Constitution has gone to great lengths to determine who is a member in this regard in Clause 8 as outlined above. The method of registration as a member is clear, detailed and precise. It determines that full membership is open to both clubs and associations. Additionally, it also provides for Associate membership.

127. We therefore find that the insistence by the Registrar to ensure that Sports Clubs do not vote is an infringement on the independence of the KRU. The KRU can determine its own membership in compliance with the law. The Sports Registrar has not pointed us towards the specific provisions of the law she was relying on to interfere with the membership structure of KRU.

128. Further the insistence that County Sports Associations should be branches of KRU is a deliberate alteration of the structure of KRU by the Sports Registrar. The Petitioner and the 2nd Respondent have vehemently contested the alteration of the same by stressing that the Sports Registrar enjoys a supervisory role and not a direct role. They also stressed that KRU is allowed to choose whether to have branches or to have County Sports Association.

129. The Petitioner has increasingly relied on the decision of this Tribunal in Football Kenya Federation v Sports Registrar & 64 others (Interested Parties) in SDTSC No. 3 & 5 Of 2020 (Consolidated) where this Tribunal held that:“…adverting to the definitions of ‘branch’ and ‘county sports association’, it would appear to us that a proper construction of the regulations leads to the conclusion that a national governing body can elect to have its branch offices either as organizational units in which case they have no separate legal existence from the national governing body; or as county sports associations in which case they have separate legal existence under section 46 of the Act, but are nonetheless affiliated to a national sports organization as a branch.”

130. This Tribunal went to great lengths in SDTSC No. 3 & 5 of 2020 to define what a branch is and the definitions of County Sports Associations and whether they are meant to be part of the National Sports Organisations.

131. In light of the above decision, we are in agreement with the above decision that a national sports organisation has the autonomy to determine whether to have branch offices as organizational units or as county sports associations affiliated to it. The provisions of the KRU Constitution do not expressly bar County Sports Associations as members, instead it provides a pathway to both classes of membership for the entities.

132. We are therefore persuaded that the Sports Registrar was not within her legal mandate to insist that County Sports Associations should vote. We are further convinced that such insistence was in contravention of the KRU Constitution without any legal backing whatsoever. The correct position would have been to register County Sports Associations as members with both the Registrar and the Union and they would have therefore been entitled to vote.

133. By this point in time, it would be obvious that the County Sports Associations were not entitled to vote, the effect of the majority vote at the AGM notwithstanding.

134. The correct procedure to adopt them as Associations is provided in Clause 8. 3 of the KRU Constitution. The Clause provides for a motion proposed and seconded by at least two (2) members of the union and a declaration to be bound by the Constitution. Further the Application shall be considered at a General Meeting of the Union and shall appear on the agenda of the meeting. The vote to ratify the same shall be a simple majority.

135. Upon perusing the pleadings filed in this suit, this Tribunal finds that only the procedures in which the Application is considered at the General Meeting and the threshold to be simple majority were adhered to. There was no motion proposed and seconded and there was no declaration to be bound by the KRU Constitution. This leads the Tribunal to inevitably conclude that the County Sports Organisations were not entitled to vote at the AGM and that the Registrar illegally interfered with the electoral process of the KRU Constitution. We can therefore not uphold the results of the election as held on 6th September 2022.

d. Whether there was verification of Union Members participating in the election 136. The Petitioner has alleged that verification of the members who took part in the voting was not done properly. However, the pleadings filed by all parties reveal no such corroboration of these allegations.

137. Nevertheless, the KRU Constitution provides for verification of Union Members participating in the election. Clause 12. 2.5 provides that:-“All questions regarding the appointment of delegates and their validity shall be decided by the Chairman of the General Meeting.”

138. This Tribunal has had the opportunity to peruse the Replying Affidavit sworn by the Chairman, the 2nd Respondent, who partly supports the Petition. The chairman did not disclose that he was approached by the Petitioner to decide on the validity of the appointment of delegates.

139. Additionally, there was no contest by any other party concerning the validity of the appointment of delegates. We therefore find that on a balance of probability, there were no significant questions over the validity of delegates to take part in the election held on 6th September 2022.

e. Whether there was interference by the observers 140. Clause 12. 5.7 of the KRU Constitution provides for Observers and Media in the context of elections. It provides that the meeting shall have the prerogative to determine whether observers can speak and that they shall have no voting rights.

141. It is apparent that observers were allowed to speak at the meeting. There seems to be a general consensus that the Registrar allowed the observers who accompanied her to speak.

142. The 9th Respondent used this opportunity to compel voters to vote or else they run the risk of sanctions from World Rugby and pointed towards the similar situation in Kenyan Football. Each party has contended that the assertion compelled them to eventually vote on 6th September 2022.

143. This Tribunal stresses that the prerogative of allowing the observers to speak rests with the Union and the interference by the Registrar was unconstitutional. It was not warranted by any legal provision. Lack of legal backing notwithstanding, the threat of the Rugby Union being expelled from its prestigious status as a result of mismanagement is a valid one.

144. Reasonable members of the Union may feel threatened by such utterances and feel compelled to vote in officials if that is the only their sport can be recognized internationally. The 9th Respondent has deponed that she was merely offering guidance to the AGM. However, the guidance of the 9th Respondent could have been issued on 30th March 2022 seeking for them to be compelled to get their own house in order. However, such guidance was only given at the AGM with the elections looming large on the agenda.

145. For this reason and on a balance of probability, we find that the guidance may have been intended to compel the voters to accept the terms and edicts of the Registrar despite their apprehension. In effect, this would mean that whether inadvertently or not, the 9th Respondent interfered with the electoral process on 6th September 2022.

E. Disposition 146. This Tribunal recognizes that there lacks a clear pathway to determining electoral disputes according to the KRU Constitution. The Tribunal is however persuaded that Regulation 20(7) of the Sports Registrar’s Regulations 2016 provide that a dissatisfied member may appeal to the Tribunal. The Tribunal is therefore convinced that it has the requisite jurisdiction to adjudicate and make a determination on the electoral dispute of KRU.

147. This Tribunal further recognizes that no election is perfect, however, an election’s accuracy in reflecting the electoral principles in the Constitution may be corrupted by a combination of many factors.

148. This Tribunal finds that the elections held on 6th September 2022 was not held in consonance with the electoral principles, the spirit and meaning of the Sports Act and the KRU Constitution for the following reasons:-a.Lack of sufficient notice, which was not ratified by the Unionb.Lack of an Independent Panel of five members as required by the Sports Registrar’s Regulationsc.Unentitled members were allowed to vote by edicts made by the Registrard.The observers may have altered the results of the elections through their inadvertent interference.

149. The 4th Respondent has pleaded that he was elected unopposed and sought a declaration that he was validly elected. The preliminary requisites before holding an election under the Sports Act and the Sports Registrar’s Regulations were not adhered to and this eliminates the validity of any election held on 6th September 2022. It is quite possible that a combination of the lack of an independent panel and the lack of sufficient notice worked to the 4th Respondent’s advantage and no competitor stepped forward. The Tribunal is therefore not persuaded to declare the 4th Respondent as validly elected.

150. In light of the foregoing reasons, the Tribunal orders as follows:a.This Petitions partly succeeds.b.A declaration be and is hereby made that the Kenya Rugby Union elections held on 6th September 2022 were held in contravention of the Constitution of Kenya 2010, the Sports Act, 2013, the Sports Registrar Regulations, 2016 and the Kenya Rugby Union Constitution, and therefore a nullity;c.A declaration be and is hereby made that the 4th, 5th and 6th Respondents were illegally in office upon the expiry of their term in March 2022;d.An Order be and is hereby issued that the Kenya Rugby Union hold fresh elections within sixty (60) days of this decision in accordance with the Kenya Rugby Union Constitution;e.An Order that the election should be conducted by an independent panel of 5 members nominated as follows;i.The existing board of KRU to nominate 2 members, each from either gender;ii.Kenya Cup sides to nominate 1 memberiii.Championship Sides to nominate 1 memberiv.Women’s rugby to nominate a woman memberv.The CEO of Kenya Rugby Union shall be the Secretary with no voting rightf.An Order be and is hereby made that only eligible members shall participate in the Kenya Rugby Union elections. The County Sports Associations including those that voted on 6th September 2022 shall apply according to the KRU Constitution to be either Associate Members or Full Members as they may deem fit.g.A declaration be and is hereby issued that the KRU Constitution is inconsistent with the Sports Act only so far as the provisions in the Second Schedule have not been fully incorporated into the KRU constitution.h.That the decision of this Tribunal be circulated by the Legal Committee to the Union Members together with a Notice of an impending Special General Assembly for an expeditious resolution of the impasse in the leadership in Kenya Rugby Union.i.All parties to bear their own Costs.

DATED AT NAIROBI THIS _14TH DAY OF FEBRUARY 2023Signed:JOHN M OHAGA, SC; CARB; FCIARBCHAIRPERSONE GICHURU KIPLAGAT, MEMBER ALLAN MOLA OWINYI, MEMBER14th FEBRUARY, 2023Appearances:Mr. Kibe Mungai for the PetitionerMs. Chikanu for the 2nd RespondentMr. Rono for the 1st, 5th and 9th RespondentsMr. Joshua Aroni appearing in personMr. Oscar Mango appearing in personMr. Munene for the 8th RespondentMr. Injenga appearing in person