[2024] KESDT 200 (KLR)

Olendo v Mutai & another (Tribunal Case E047 of 2023) [2024] KESDT 200 (KLR) (Civ) (5 March 2024) (Ruling)

Neutral citation: [2024] KESDT 200 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Civil

Tribunal Case E047 of 2023

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

March 5, 2024

Between

Raymond Olendo

Petitioner

and

Alexander Kiplagat Mutai

1st Respondent

Kenya Rugby Union

2nd Respondent

Ruling

Parties: 1. The Petitioner/Claimant is the duly elected Hon. Secretary of the Kenya Rugby Union having been elected as such during the last elections of the Union.

2. The first Respondent is the duly elected Chairman of the Kenya Rugby Union having been elected as such during the last elections of the Union.

3. The second Respondent is a national sports organization duly registered as such by the Registrar of Sports and being responsible for the controlling and administering of the game of rugby in the Republic of Kenya.

Background 4. The Claimant approached the Tribunal on or about 9th November 2023 through a Certificate of Urgency seeking orders for the hearing of the matter under urgency and in addition seeking prayers as follows:a.That the Tribunal declares that the suspension from the position of Hon. Secretary is illegal and a nullity.b.That the Tribunal declares that the action of the first Respondent seeking to verify the Certificates of the Petitioner is illegal and a nullity.c.That the Tribunal declares that the acts of the Respondent to access the Petitioner’s personal documents without his consent was a breach of the Petitioner’s rights as provided under Article 31 of the Constitution of Kenya.d.That the Tribunal issues a Conservatory Order staying the Respondents illegal suspension and/or locking out of the Petitioner from carrying out his duties as the duly elected Ho. Secretary of the second Respondent.e.That the Tribunal issues any other orders that it deems fit and just to ensure the rule of law and order is upheld and maintained.f.That the Tribunal awards costs of this Petition to the Petitioner.

5. The Hon. the Chair of the Tribunal made directions that the Petition be served upon the Respondents and they be given time to file their appropriate responses.

6. Consequently, the matter was mentioned before the Tribunal on 14th November 2023 and 5th December 2023 whereupon the Hearings were set for 22nd January 2024, 24th January 2024 and 13th February 2024.

7. Affidavit Evidence was presented before the Tribunal and viva voce evidence also adduced. Upon the confirmation of the parties that they would file written submissions and rely on them for purposes of the decision, this matter was set for Judgment.

Petitioner’s Case 8. The Petitioner indicated that upon his election or re-election to the Board of the Union, he had a fractious relationship with the Chairman and evinced various instances where the two Officers of the Union were on opposing schools of thought on matters at the Board.

9. In one meeting of the Board of the Union scheduled for 4th August 2023, the Chairman presented communication from a Credit Reference Bureau indicating that the Clearance Letter that had been submitted by the Petitioner to the Elections Board had been obtained fraudulently or was not authentic.

10. The Chairman made demands to the Petitioner to resign on the basis of this and went ahead to remove the Petitioner from various meeting points of the Union including the Committees and thus excluded him from the attendant activities.

11. The Petitioner also averred that the orders granted by the Tribunal for his reinstatement had not been complied with and that the contemnors were to be cited and punished for this.

Respondents Case 12. The Respondents opposed the Petition and indicated that the actions by the Chairman were merited. This included the actions of checking the records that were within the precincts of the Union such as the Credit Reference Bureau information supplied during the election process.

13. The first Respondent also indicated that the Petitioner had flouted various Governance Principles including the Conflict of Interest one in which his law firm or a law firm associated with him were providing legal services to the Union. In addition, the Petitioner had refused to sign a Conflict of Interest and Non Disclosure Agreement that the Chairman had proposed to be signed by all Union members.

14. Other transgressions were cited against the Petitioner by the first Respondent including the appropriateness of relations and the tardiness of attendance of critical meetings.

15. The first Respondent indicated that the failure to attend meetings after the matter of the Credit Reference Bureau letter was tabled was due to the Petitioner willfully stepping down.

16. The second Respondent also opposed the Petition by the Petitioner and in effect indicated in the Replying Affidavit of Thomas Odundo at paragraph 7 thereof that they contested whether the Petitioner was rightfully sitting on the Board of the Union by reason of falsified documents.

17. The second Respondent also aligned their thoughts with those of the first Respondent that the Petitioner had not come to the Tribunal with cleans hands and had instead been involved in various matters that seemed to be against corporate governance principles. He had done so for instance by acting for the Union in matters where there was potential conflict of interest against his acting as an Advocate.

18. The second Respondent noted that the action by the Petitioner to seek the intervention of the Office of Data Protection Commission was merely an attempt to deflate the attention to the gross commission to favour the second Respondent’s agents, to wit, the Election Board, with falsified Credit Reference Bureau documents.

19. Under paragraph 60 of the aforesaid Replying Affidavit, the second Respondent averred that the Petitioner voluntarily stepped down as the Hon. Secretary.

Issues 20. The parties having not clearly agreed on and identified the issues for determination, the Tribunal has taken the liberty to frame four main issues for determination after discerning the pleadings, the evidence and the submissions filed before it. The issues are listed as follows:i.Whether the Tribunal has the requisite jurisdiction to hear and determine this matter;ii.Whether the Petitioner’s election as the Hon. Secretary could be invalidated after the close of the appeal period;iii.Whether the first and second Respondents actions were in exercise of the Fair Administrative Action Act; iv.Whether the first and second Respondents are in contempt of the decision of the Tribunal.In considering these issues, the Tribunal has noted that there were other issues that were canvassed before the tribunal which were not considered to be the key issues of the dispute that was before the Tribunal.

i. Whether the Tribunal has the requisite jurisdiction to hear and determine this matter. 21. The issue of requisite jurisdiction has arisen before this Tribunal in several claims and stands the risks of being abused as a formality issue in every matter to slow down the trajectory of justice in a sports dispute by requiring parties to go back one step purely to eschew hastening the determination of disputes.

22. The converse though is that with numerous Objections to the issue of Jurisdiction, the Tribunal is enriched as the proposition is that the issue has been definitively dealt with making the Tribunal fully appraised on the centrality of jurisdiction currently before it in this matter.

23. The first Respondent in their submissions have cited the Internal Dispute Resolution Mechanisms that are present at the second Respondent, the Union, who have their own levels of dispute Resolution. Under paragraph 37 of the Written Submissions, the first Respondent states that the four levels of dispute resolution are:a.The General Meeting of members where disciplinary matters are raised.b.The Board of the Union that has powers to discipline members by taking such steps as it deems fit against any Club, Player or Person. It is clarified that the said Board cannot remove the Board Member. The said Board of the Union may however, under Article 10. 23. 2 of its Constitution delegate its powers to judicial officers.c.The Appeal Council that receives the appeal from decisions of the Board. It is indicated that the decisions here are final.d.The Disciplinary Committee is also established under Article 10. 25 to perform

24. To the mind of the first Respondent, the Tribunal can only exercise powers when the Petitioner approaches it under section 58(a) of the Sports Act where the Union would have made a decision against the Petitioner that is capable of being appealed against.

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

26. The first Respondent makes the claim that there is no claim that has been made against the Union or remedy sought against the Union itself. Essentially that there was no decision passed by the second Respondent that is capable of being appealed against.

27. The first Respondent made the submission that the only claim made against the Respondents was breach of data protection rights which in any event the Sports Disputes Tribunal has no jurisdiction to make a determination over.

28. In the case of Kakuta Maimai Hamisi -vs- Peris Pesi Tobiko & 2 Others (2013) eKLR stated that: -So central and determinative is the jurisdiction that it is at once fundamental and over-arching as far as any judicial proceedings in concerned. It is a threshold question and best taken at inception. It is definitive and determinative and prompt pronouncement on it once it appears to be in issue in a consideration imposed on courts out of decent respect for economy and efficiency and necessary eschewing of a polite but ultimate futile undertaking of proceedings that will end in barren cul-de-sac. Courts, like nature, must not sit in vain.

29. The Sports Dispute Tribunal is a subordinate court established by Section 55 (1) of the Sports Act, 2013 in furtherance of Article 169 of the Constitution of Kenya 2010 which under Article 169 (1)(d) defines subordinate courts to include:Any other court or local Tribunal as may be established by an Act of Parliament …

30. In essence, the Tribunal is a specialized Tribunal with members having not only the qualifications in the legal field but also experience and knowledge of the subject matter of sports and consequently exercising those judicial powers flowing from both the people’s constitutional power and legislative authority.

31. The jurisdiction of the Tribunal is derived from Section 58 of the Sports Act which 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; and (c) Appeals from decisions of the Registrar under this Act.

32. On matters that deal with the elections of the Officials to sports organizations, the Tribunal has powers expressly granted under Regulation 20(7) of the Sports Act (Regulations) 2016 that states:(7)A person who is dissatisfied with the results of an election may appeal to the Tribunal within thirty days of the elections.

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

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

35. It therefore follows that there is no donation of Jurisdiction to the Tribunal just as there is no ouster clause that should be in place for reference to disputes to the Tribunal. To do so would be to offend the position in the Sports Law through the Sports Act that infers that Internal Dispute Resolution Mechanisms should dovetail into the External Dispute Resolution mechanism through the Sports Disputes Tribunal nationally and the Court of Arbitration of Sports internationally.

36. Consequently, it is not unique to this case that the Petitioner is being cajoled into exhausting Internal Dispute Resolution Mechanism before approaching the Tribunal. However, in the recent decision of Samuel Mugata Nyangweso vs Kenya Volleyball Federation and Another SDT E031 of 2023, the Tribunal pronounced itself on Jurisdiction as follows:Where there are means of dispute resolution then it is expected and it is encouraged that they should be exhausted before the Tribunal is called into the arena to settle the dispute. This is the interplay of the internal dispute resolution and subsequent external dispute resolution mechanism that was adverted to by the Respondents. Nevertheless, the nature of the dispute is critical in determining if it was indeed incumbent for a party to exhaust such mechanisms.

37. The Tribunal therefore often encourages parties to look at the prayers being sought before concluding that there is no automatic Jurisdiction. The nature of the prayers may be beyond the Internal Dispute Resolution Mechanism or even impractical to be urged at that level.

38. This was the point made in Alfred Koilege v Boaz K. Kaino & 4 Others SDTSC E054 of 2023 where the Sports Disputes Tribunal held as follows in a Preliminary Objection on Jurisdiction:The Tribunal is alive to the fact that at times parties may seek interim measures of reliefs such as the stopping of a tournament and it would be imprudent to do so at a body that doesn’t offer the same injunctive relief or whose orders are not binding as they have no force of authority such as the orders of the Tribunal…… It is not lost on this Tribunal that prudence dictates that where internal structures are established to resolve disputes, they are utilized before the dispute is escalated to other mechanisms including this Tribunal. However, we wish to reiterate, that the utilization of such mechanisms is a rule of discretion and not compulsion, especially where such structures would not afford the litigant an effective remedy or such structures are not clearly defined. Further, the existence of internal remedies is not a bar to pursue superior remedies.

39. There is no doubt that there is a dispute between the Petitioner and the two Respondents and the same relates to his holding office as Hon. Secretary. It is not also in doubt that where there are means of dispute resolution then they should be exhausted. This interplay of the Internal Dispute Resolution and subsequent External Dispute Resolution Mechanism was indeed adverted to from paragraphs 26 and 27 of the second Respondent’s Affidavit.

40. Nevertheless, the nature of the dispute before this Tribunal presents a peculiar scenario where there doesn’t seem to be explicit decisions taken to vacate the Petitioner from office but there are certain actions that seem to have been taken to ensure he doesn’t perform his functions. On one hand, the second Respondent suggests that the Petitioner is not rightfully sitting in Office due to falsified documents and the first Respondent suggests that the Petitioner has not been prevented from performing his duties. The Petitioners accusers include the first Respondent who would be expected to perform a role in Internal Dispute Resolution Mechanisms suggested.

41. To that extent, whereas the Tribunal does not overlook the fact that there is an Internal Dispute Resolution Mechanism embedded in the Kenya Rugby Union’s Constitution, nonetheless, as has been noted, the two Respondents have not demonstrated how they shall constitute a bench that is immune to the wearing of both Accuser and Judge hats to determine its decision.

42. The Tribunal does not seek to violate the rules of natural justice which provide that a man cannot be made judge in their own case. This is aptly captured in the principle of nemo judex in causa sua.

43. Two sub-issues therefore have to be determined on the issue of Jurisdiction. On the first sub-issue of the dispute about the holding of office by the Petitioner and noting whom his accusers are, the Tribunal is persuaded that the same connotes a sports related dispute of an official holding office in a sports organization and thus the Tribunal has Jurisdiction to hear the dispute in the first instance.

44. However, on the second sub issue on Jurisdiction that relates to the data privacy and attendant breach or otherwise, the Tribunal agrees with the first Respondent that the Tribunal has no Jurisdiction to enforce matters that fall within the scope of the Office of the Data Protection Commissioner.

45. With these two sub issues combined, the substance of this claim that is anchored on the alleged suspension and proposed nullification of the Petitioner’s election survives the Jurisdiction challenge and the Tribunal affirms its Jurisdiction to hear the matter.

i. Whether the Petitioner’s election as the Hon. Secretary could be invalidated after the close of the appeal period. 46. The Tribunal turns to the validity of the election to office of the Petitioner in the elections held on 29th March 2023 and the subsequent allegations that the said election ought to have been nullified on the grounds that he did not possess a valid clearance certificate from the Credit Reference Bureau.

47. Like any Judicial body, the Tribunal looks at the evidence that is presented before it in support of any claim that is made. In doing so, the Tribunal has been invited by the Petitioner to take keen interest on the manner in which the information related to the Petitioner’s qualification to vie was obtained.

48. The first Respondent has alleged that his position is bestowed with the powers to interrogate other member’s documents and quoted clause 10. 22. 4 of the Union’s constitution which infer the position that the member can access minutes of proceedings or books of accounts.

49. The Tribunal is apprehensive to conclude that this provision grants the Chairman or other members of the Union Board the blanket powers to inspect every other document. Without going into the issues covered under the Data Protection Act, 2019 as per the Jurisdiction question above, it is necessary that the implications of Chapter Six of the Constitution and the provisions of the Sports Act in the election of members of the Executive Committees (or Board as the case in this matter) be contextualized.

50. Under Regulation 20 of the Sports Registrar Regulations, 2016, a sports organization shall be expected to comply as follows:20(2) a sports organization seeking to hold an election shall…(a)appoint an independent panel consisting of at least five members to conduct the election…(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

51. This has been proved to have been done at the elections of the second Respondent which had an independent body conducting elections and which body requested certain information from the candidates. This information is for purposes of conducting the elections and ensuring that certain governance tenets are maintained through the election of persons who are responsible. The contestants trade this confidential information as part of vetting in trade for an opportunity to serve the members of the sports organization.

52. In handling this information based on the trade off as contextualized, it is expected that the sports organizations appreciate that to divulge information or to inspect documents outside the purpose for which they were handed over and to which there is no express authority is in the regions of an invasion of privacy rights embedded in the Constitution of Kenya under Article 31. Without going into the interpretation of the actions of the Respondents vis-à-vis the Constitutional rights of the Petitioner, it is enough to emphasize that for sports organizations, the purpose of information obtainment should always have regard to the rights of the bodies that get the information and what they may do with it. In Tumaz and Tumaz Enterprises Limited & 2 others v National Council for Law Reporting, it was stated as follows:78. The right to privacy and to inherent dignity as stated above are contained in our expansive Bill of Rights which is the cornerstone of our democracy. Under article 12 of the Universal Declaration of Human Rights (UDHR) which Kenya is a party to:“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attack upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

53. Indeed, information on the “Chapter Six documents” referring to the specified personal information about candidates was easily available since the Election Panel that handled them was an agent of the Union. Within institutions, there is an extent of privacy that is restricted to only those who are privy to the same. In any event, the Election Panel must have some element of independence to cement its impartiality, thus, documents received for the purposes of elections are to be treated as specific to them.

54. Notably, when there are no express or implied powers wielded by a member to interrogate certain documents then he should refrain. Any conduct that is not consistent with these standards of protection must not be misconstrued as transparency for it is a violation of privacy.

55. Arguably, information that is obtained in violation of the rights of an individual loses value before any judicial body. In John Muriithi & 8 others v Registered Trustees of Sisters of Mercy, the court opined as follows:28. This is the position at common law and which was upheld in Karuma S/O Kaniu vs R. Article 50(4) of the Kenyan Constitution states as follows:-“Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.

56. Undoubtedly, eligibility is an integral process of an election at the time that the election process is going on. It is not sufficient that a candidate is popular in any popular contest, the candidate should also be eligible for the position.

57. In Sammy Ndung’u Waity v Independent Electoral & Boundaries Commission & 3 others, the court averred as follows:Paragraph 51(d)In Karanja Kabage v. Joseph Kiuna Kariambegu Nganga & 2 Others Nakuru Election Petition No. 12 of 2013; [2013] eKLR one of the issues in the petition was whether an Election Court had jurisdiction to hear and determine pre-election disputes. The Court (Emukule, J.) held that the Court had jurisdiction to entertain such disputes., The learned Judge stated:“an election is an elaborate process that begins with registration of voters, nomination of candidates to the actual electoral offices, voting or counting and tallying of votes and finally declaration of the winner by Gazettement. In determining the question of the validity of the election of a candidate, the court is bound to examine the entire process up to the declaration of results…. The concept of free and fair elections is expressed not only on the voting day but throughout the election process…. Any non-compliance with the law regulating these processes would affect the validity of the election of the Member of Parliament.’He further held that,“Therefore, where a matter raised in an election petition filed after the declaration of the results is one which should, properly have been raised earlier and determined by another body then the Court lacks jurisdiction to determine in the course of an Election Petition. The only exception is, where there is a breach of a mandatory provision of the law – for example the registration and election of a non-citizen. Though the power to disqualify such a candidate rests with the 3rdRespondent, the court would interfere to right the wrong on the grounds of illegality” [Emphasis added].

58. In the exercise of its powers to oversee the credibility of an election, the Tribunal shall rely on the position that the courts have taken in national elections. Evidently, election is a process and not an event. Generally, the courts have deemed it imperative for the entities handling election processes to act diligently prior to the elections lest the election court divest themselves from entertaining a petition.

59. In Sammy Waita Ndungu (supra) the court further averred as follows:(94)The matters which go into the root of election are pre-requisites spelt out in the Constitution including a degree from a University recognized in Kenya as the minimum academic qualification for election as a County Governor as prescribed by Articles 180(2) and 193(1)(b) read together with Section 22(2) of the Elections Act; and being a registered voter, nominated by a political party or as an independent candidate, is of sound mind and is not an un-discharged bankrupt as required by Article 99 of the Constitution.

60. The upshot of the foregoing is that whilst there are peripheral matters in the process of an election to which if there is oversight during the nomination, the courts would not seek to interfere. On the other hand, there are those omissions that go to the root of the process that the courts shall delve into and address illegalities.

61. The Constitution of the Kenya Rugby Union under Article 10. 4 provides as follows: The Board shall retire by rotation thereby having staggered elections. For a candidate to be nominated to for election as a Board Member, such a candidate must have served in either executive committee of an Affiliate of KRU or on the technical committee of such Affiliate or an accredited coach, referee or administrator or medical practitioner of the game of Rugby Union for a period of at least four years.Further, such candidates should possess the following:i.Certificate of good conductii.Clearance from the Credit Reference Bureauiii.Good knowledge of both written and oral English and Kiswahili iv. Basic World Rugby Certification including but not limited to World Rugby Level One Coaching or Refereeing or Club Administration, Laws of the Game and Rugby Ready Certification.” [emphasis added]

62. We are inclined to the position that an election panel is bestowed with all the powers to ensure nominees act in accordance to the dictates of the Kenya Rugby Union. Thus, at the nominations stage, it would be the Election Panel’s prerogative to declare a Credit Reference Bureau clearance certificate an indispensable requirement prior to nomination in consonance with Section 20(2)(f) of the Sports Regulation 2016. However, upon conduct of the elections, the Tribunal can only interrogate matters appurtenant to eligibility wherein failure to adhere would erode the very root of a person’s eligibility.

63. Specifically, the Credit Reference Bureau certification is to ensure that the elected official is credit-worthy. Following the election, if concrete facts emerged that indeed the Petitioner was not credit-worthy at the material time then he would inevitably be ineligible to vie. The limitations however are tied to the time within which this can be raised.

64. At this juncture, whether or not there has been fraud is an issue that is handled delicately based on the evidentiary value of proving fraud, which is a criminal offence, under a Sports Dispute Panel. In Arthi Highway Developers Ltd vs. West End Butchery Ltd & Others (Civil Appeal No. 246 of 2013) [2015] Eklr, the court pronounced itself as follows on fraud accusations–“……it is not allowable to leave fraud to be inferred from the facts pleaded and accordingly, fraudulent conduct must be distinctly alleged and as distinctly proved …….. General allegations, however strong may be the words in which they are stated, are insufficient to amount to an averment of fraud of which any Court ought to take notice.”

65. The Tribunal will thus resist the temptation to conduct a forensic analysis of an election disguised as an appeal and to annul it based on a matter that should have been raised at the requisite time. Therefore, the supervisory powers of this Tribunal on elections are reserved for those tenets of the election wherein oversight by an Election Panel would be a flagrant illegality.

66. In light of the foregoing, the Tribunal is not persuaded the validity of the Credit Reference Bureau clearance certificate raised several months after the election is sufficient to declare the Petitioner unfit for the position. Indeed, the Elections Board was functus officio once the election results were uncontested. Hence, his election as a Secretary General satisfied the basic requirements for the position.

67. The Supreme Court of Kenya when expounding on the doctrine of functus officio in Election Petitions Nos. 3, 4 & 5 Raila Odinga & others vs. IEBC & others [2013] eKLR cited with approval an excerpt from an article by Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law” (2005) 122 SALJ 832 in the following words-“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”

68. Other jurisdictions such as South Africa have also had the same regard to Election Officers and functus officio status. In Osterloh v Civil Commissioner of Caledon, Pretorius 2005 SALJ 832 844, the Court stated:Having done these things, and given the notification, he has exhausted all the powers … given him by the Act, and is entirely functus as to the election … Osterloh was the member of the Council, and the Civil Commissioner’s judicial (original emphasis) functions were at an end, and his ministerial (original emphasis) functions also ended, on the publication of the notifications in the Gazette.

69. It is then not possible that the body that ran the election is functus officio and the documents they used are still live to be used by another body that did not even have powers over the said documents used by the now functus officio body.

iii) Whether the first and second Respondents actions were in exercise of the Fair Administrative Action Act; 70. The two parties on opposing sides have traded accusations on the propriety or lack thereof of the opposing sides in handling affairs of governance nature at the second Respondent.

71. Procurement inadequacies; marketing knowledge deficiency; potential bias in award of contracts for services and potential conflicts of interest are the litany of the misdeeds the parties have laid out against each other. The only problem is that the said misdeeds are not on trial at the Tribunal in the instant case.

72. It is once more important to lay out the context of the understanding of the Tribunal of the various evidence laid out before it. The Petitioner attempted to lay out a basis of the motive for the tribulations he was facing with the first Respondent. To do so, the Petitioner hinted that the Credit Reference Bureau certificate of clearance was a smoking gun that the first Respondent had hang on after the propriety issues on governance had been noted by the Petitioner.

73. The first Respondent and indeed the second Respondent then took this as invitation to also go after the character of the person who was attacking the character of the first Respondent when he, the Petitioner, wasn’t so clean after all. Unfortunately, whereas the Petitioner had tried to establish motive, it wasn’t clear what the intend of the first and second Respondents was in returning the compliment. The allegations that were raised seemed like allegations that would fall within the ambit of a General Meeting in which members are invited to take disciplinary actions against the Officials that the elected.

74. The Tribunal has noted the process of how a member of the board can lose their position. According to Clause 10. 12 of the Union's Constitution, it is provided that:“An Officer or Board member shall automatically cease to be such if:a.He fails to attend three consecutive meetings of the Board without proper cause.b.He is removed from the office at a General Meeting of the Union by a resolution passed by a two-thirds majority of the votes of representatives of Members present.”

75. These aforementioned provisions are explicit, and anything contrary falls under the doctrine of ultra vires. In Okiya Omtatah Okoiti v Principal Secretary for Health, Board of Directors & 3 others under paragraph 33, the court averred as follows:33. The Petitioner relies in the holding in Okiya Omtatah Okoiti & 3 others v Anne Waiguru, the Cabinet Secretary, Devolution and Planning & 6 others [2021] eKLR where the court held“An act of ultra vires when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provisions of law or its principles renders the decision made laced with illegality.”

76. Having taken a deep dive at the first Respondent’s submission with regards to the powers of the Chairman, it illustrates that he proffered to himself a liberal and wide discretion to act when interpreting the constitution of the Kenya Rugby Union. This is how in comprehension of his actions or directives, the first Respondent further alleges that the Petitioner actually lost his seat by virtue of missing out on three consecutive meetings.

77. The Chairman’s power to suspend any member is glaringly inconsistent with Article 10. 12 of the Constitution of the said national sports organization. In examining this, the Tribunal notes that there wasn’t any specific prayer for it to declare that the Petitioner had no proper cause not to attend the meetings that are alleged to have been missed.

78. The Tribunal notes the evidence led that second Respondent has through its administrative actions allowed that Board meetings are held on the last Wednesday of the month. However, the current board resolved to have their meetings on the 2nd Monday of every month, wherein the Petitioner failed to attend 3 such meetings that were held on or about 14th August 2023, 11th September and 9th October of 2023.

79. The detail that is not missed out was that the events of 4th August 2023 seemed to fall within the category of just cause that Article 10. 12 (a) provides for at the end of the sentence as a proviso. In sports lingo, this is the equivalent to the famous quote from Apollos Hester when he said, “they had us the first half, I'm not gonna lie” which has been interpreted to mean that it is not proper to cite the start of the sentence (the first half of the sentence) and not read through to the end of the same sentence (the second half of the sentence) as the words uttered at the end could clarify the words at the commencement. In this instant, the loss of the position on the Board after three meetings has the three words at the end that mean the missing of meetings needs someone to confirm whether the cause or reason for failure to attend was proper or not.He fails to attend three consecutive meetings of the Board without proper cause.

80. The Petitioner had been suspended by the 1st Respondent on 4th August 2023 and had only been reinstated vide a ruling of this Tribunal on 14th November 2023. The period between his suspension and subsequent reinstatement by the Tribunal was thus marked by animosity and tension. It would be counteractive and a mockery of justice to invoke clause 10. 12. (a) when precisely the Petitioner had been unable to attend the meetings because of actions occasioned by the 1st Respondent.

81. To buttress the foregoing, the Petitioner herein was effectively not in a position to attend due to the ongoing animosity between him and the first Respondent and by extension the secretariat at the second Respondent. It is trite law that equity will not suffer a wrong without a remedy.

82. In Local Empowerment for Good Governance & 6 others v Community Executive Committee Member Finance & Economic Planning - County Government of Mombasa & 2 others the court espoused as follows in paragraph 47The Court of Appeal in LTI Kisii Safari Inns Ltd & 2 others v Deutsche Investitions-Und Enwicklungsgellschaft (‘Deg’) & others [2011] eKLR held as follows on the issue of a wrong being without a remedy…“It is regrettable that despite these lamentations, the learned Judge did not render justice between the parties according to law. It is not enough for a Court of law to tell a victim of injustice that a wrong had been perpetrated against him without offering a remedy. It is a maxim of equity that Equity will not suffer a wrong to be without a remedy. The idea expressed in this maxim is that no wrong should be allowed to go unredressed if it is capable of being remedied by Courts of justice. See Snell’s Equity 23rd Edn page 28. ”

83. It shall therefore not consider the Petitioner’s absence in the three consecutive meetings as material to preservation of his position since there is an explanation for which it is ready to offer a remedy to the situation.

84. The Claimant herein alleged that the Respondents’ manner in the determination of his case was a gross violation of his fair administrative rights enshrined in the Constitution under Article 47 and Section 4 of the Fair Administrative Action Act.

85. To illustrate, section 4(3) of the Fair Administrative Action Act outlines the following (3) Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision–a.prior and adequate notice of the nature and reasons for the proposed administrative action;b.an opportunity to be heard and to make representations in that regard; (c) notice of a right to a review or internal appeal against an administrative decision, where applicable; (d) a statement of reasons pursuant to section 6;e.notice of the right to legal representation, where applicable;f.notice of the right to cross-examine or where applicable; org.information, materials and evidence to be relied

86. The Tribunal would have preferred to make a determination on the extent of satisfaction each of the above-mentioned limbs. However, it deems such an exercise is superfluous for the prevailing allegation is that the Petitioner resigned which allegation has been disputed. Additionally, any purported suspension without adhering to the provisions of the Constitution of the second Respondent would have been an illegality.

87. The serious Governance issues that have been raised on both sides of the divide are not properly before the Tribunal if they are only raised to show a motive or to hit back with counter accusations. They can be raised at the General Meeting if the parties still need to pursue them. At this moment in time, the first and second Respondents have not pursued their allegations against the Petitioner in a manner that falls the straight and narrow of the Fair Administrative Action Act.

88. Further, the Respondents allegation that the Respondent’s membership to the Board is improper since he has and alleged conflict of interest. As indicated hereinabove, this matter has not been properly canvassed and there is no need for determination on the same.

iv) Whether the first and second Respondents are in contempt of the decision of the Tribunal. 89. Lastly, the Petitioner opined that the Respondents are in contempt of the orders issued on 9th November 2023 reinstating the Petitioner as a full Board member. He asserts that he should similarly resume his position as the co-chair of the Finance and Administration Committee. It is however clear from the evidence that the removal or attempted removal of the Petitioner from the Board of the Union had not been finalized. Attempts had been made to do so including asking the Petitioner to resign which he seemed to be initially agreeable to do and then he subsequently declined as he felt he was being forced so to do. The non-attendance at meetings was not intentional but based on the prevailing circumstances where there was confusion on whether the Petitioner was still the Hon. Secretary. It even appears that the Chief Executive Officer of the second Respondent did not appreciate that the Petitioner was indeed still a member of the Board.

90. To define and understand the components that constitutes contempt as defined in DKG v EG [2021] eKLR is important. The learned judged averred as follows at paragraph 13. The court in the aforementioned case proceeded to quote with approval the learned authors of the book; Contempt in Modern New Zealand thus:-“There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that:-a.The terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;b.The defendant had knowledge of or proper notice of the terms of the order;c.The defendant has acted in breach of the terms of the order;d.The defendant's conduct was deliberate.”

91. With clarity, the second Respondent has ascertained that the Petitioner was reinstated as Hon. Secretary, except the Board has not reinstated him as a co-chair in the aforestated Finance and Administration Committee. There was interchangeable use of the word Committee and WhatsApp Group and the implication was that if someone was removed from a WhatsApp Group of the Finance and Administration Committee then he had been removed from Finance and Administration Committee. That can not be correct.

92. Without belabouring the point, this issue on whether there has been contempt is thus simplified as to whether the Tribunal can issue such orders to the Respondents.

93. According to the Respondents, the membership of the committees is discretionary, and as such, there are no specific provisions related to the appointment of Union Board members into these positions. The Tribunal is alive to the fact that the second Respondent’s Board needs to operate seamlessly. It would therefore be unappealing to wade farther into its territory by dictating on the composition of the committees.

94. In light of the foregoing, the Tribunal declines to issue orders reinstating the Petitioner as a co-chair of the aforementioned committee. However, the Board is expected to ensure each elected official is able to fully perform within their capacities prescribed by the second Respondent’s constitution.

95. Additionally, it is worth noting that though the Petitioner and the first Respondent may not have been in the same camp before the elections or elected on a joint ticket, there fact that they occupy important positions at a national sports federation obligates then to act in a collective responsibility manner in the decisions that are taken at the Board or indeed any Committee of the Board.

96. It is expected that their different ideas on any motion before the Board of on the Committees will compete in space and those that have the majority of votes will be deemed to be the position adopted by the Board whereupon the respective persons who opposed those ideas that are now resolutions will not resile from the Board Resolutions. The Tribunal has emphasized time without number that the Corporate Governance at national sports organizations is a paramount matter for the growth of the sport. The position of Hon. Secretary is an important one as he or she is even expected to issue notices on behalf of the Board. In most Boards of national sports organizations, each member of the Board carries one vote during the passing of resolutions. Therefore, the members often persuade each other for purposoes of achieving consensus and if that fails they vote. This should not be different for the Kenya Rugby Union. Just because one doesn’t agree with a Resolution that has been passed does not mean that there should be break up of the Board or eviction from elected positions. It is also necessary to point out that the Tribunal is clothed with Jurisdiction under section 59 of the Sports Act to mediate any recurring differences between officials of the second Respondent on the governance matters.

Conclusion 97. Having analyzed the issues as above, the Tribunal makes orders as follows on the issues raised.a.With regards to jurisdiction, the Tribunal points out that it is a specialized body with powers to hear election disputes.b.On the issue of the challenge of the eligibility of the Petition long after the election, the Tribunal declares that the Elections Board was functus officio upon the conduct of an election, and the Petitioner was thus an eligible nominee to the position.c.The Tribunal finds out that there was no fair administrative action in the suspension of the Petitioner.d.The first and second Respondents are not in contempt of court in their failure to reinstate the Petitioner to the finance and administration committee.

98. Consequently, the Petition dated 9th November 2023 filed by the Petitioner is allowed in the following terms:a.That Tribunal declares that any suspension of the Petitioner from the position of Hon. Secretary as alleged is illegal and a nullity.b.The Tribunal declares that the action of the first Respondent seeking to verify the Certificates of the Petitioner after the close of the period for the Appeals of the Election Results and when the Elections Panel is functus officio is illegal and a nullity.c.The Tribunal declares that the determination of any breach of Data Privacy is not a preserve of the Tribunal.

99. Each party shall bear own costs.

100. The Tribunal extends its thanks to the Counsel for each of the parties for the dignified manner with which they conducted these proceedings and for the detailed submissions that were filed.

DATED AND DELIVERED AT NAIROBI THIS 5TH DAY OF MARCH, 2024BENARD MURUNGA WAFULA - PANEL CHAIRPERSONPETER OCHIENG - MEMBERALLAN OWINYI - MEMBERAPPEARANCES:Ratemo instructed by Ombui Ratemo and Associates for the Petitioner;Zakayo instructed by LJA Associates LLP Advocates for the 1st Respondent;Rono instructed by Waiyaki and Associates for the 2nd Respondent.