[2025] KESDT 53 (KLR)

Omolo v Rachier & 3 others (Tribunal Case E022 of 2024) [2025] KESDT 53 (KLR) (15 January 2025) (Ruling)

Neutral citation: [2025] KESDT 53 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Tribunal Case E022 of 2024

Gabriel Ouko, Chair, Peter Ochieng & Benard Murunga Wafula, Members

January 15, 2025

Between

Benard Agwera Omolo

Claimant

and

Ambrose Rachier

1st Respondent

Francis Wasuna

2nd Respondent

Dolfina Odhiambo

3rd Respondent

Sam Ochola

4th Respondent

Ruling

Parties 1. Claimant is a male adult of sound mind, and describes himself as a duly registered member of Gor Mahia Football Club residing in Nairobi, within the Republic of Kenya.

2. The Respondents are the members of Gor Mahia Football Club Executive Committee, charged with the leadership and management of the Club.

Brief Background 3. The Claimant herein approached the Sports Disputes Tribunal “The Tribunal”, vide a Memorandum of Claim dated 1st September 2024, in which he stated: -a.That on 8th August, 2020, the Executive Committee of Gor Mahia Football Club was elected into office and its term expired on 8th August, 2024. b.That the Executive Committee on 14th August, 2024, issued a notice of Annual General Meeting scheduled for 6th September, 2024 in total disregard of its constitution and the relevant statutes and regulations.c.That the governing body of the Gor Mahia, namely the Executive Committee is and continues to hold office illegally and irregularly contrary to the provisions of the Sports Act, 2013 and the Sport Registrar Regulations 2016, as the term of the Executive Committee ended on 8th August, 2024. d.That the Office of the Honourable Registrar have continuously reminded the Respondents of its obligation for compliance to no avail. These included: -i)That the Organization complies with the Sports Act, 2013 and the Sports Registrar Regulations, 2016. ii)That the Organization reviews its constitution to be in line with the Kenya Constitution, 2010, the Sports Act No. 25 of 2013 and the international statute.iii)That the Organization submits annual reports that include but not limited to the audited financial statements and updated details of current office bearers.iv)That the Respondents organize an Annual or biannual General Meeting.e.That vide the letter dated 17th July, 2024, the Honourable Registrar of Sports further reminded the Respondents of the Complaints that her office had received from members and they range from non-compliance of the aforestated obligations but the Respondents are yet to comply.

4. Based on these averments, the Claimant inter alia, made the following prayers before the Tribunal;a)A declaration that the notice by the Respondents dated 14th August 2024 for the intended AGM scheduled 7th September 2024 was illegal.b)The Club’s Executive Committee as currently constituted cannot legally transact any business on behalf of the Club.c)An order directing the Honourable Registrar of Sports to form a caretaker committee for transition on behalf of the Club.d)The tenure of the Respondents lapsed on 8th August 2024 and as such the current Executive Committee have no mandate to run the club in any manner.e)A declaration that the Respondents have grossly violated the Club’s Constitution by failing to constitute the Board of Trustees.(f)Costs of the claim(g)Any other reliefs the Tribunal may deem fit to grant.

5. The matter was listed for hearing before the Tribunal on 4th September 2024. The same did not proceed as the parties informed the Tribunal that following certain amicable discussions, it was agreed by consent that:-i.the AGM scheduled for 6th September 2024 be adjournedii.the Application dated 1 st September 2024 be marked as spent.iii.the Respondents be granted 14 days to respond to the main claim.iv.there be a mention within 30 days for further directions.v.the parties be at liberty to consent and file such consent if an agreement is reached.

6. Whilst there was discomfort with the idea that an alleged wrong against all members could be compromised through this consent, as it has the effect of claims of being illegally in office being extended with the consent of only one member, the Tribunal nonetheless adopted the consent noting that the parties had provided for a window for other negotiations and consents.

7. Subsequent to the mention date in the consent, the matter was listed for hearing on diverse days resting with the mention on 14th January 2025. The matter was mention on 8th October, 2024; 29th October 2024; 5th November 2024; 3rd December 2024; 17th December 2024 and 14th January 2025.

Summary of Pleadings 8. The Claimant had noted the Notice dated 1st August, 2024 by the respondent titled “Extension of club membership subscription” that was posted on various social media platforms of the Club. The Claimant found this to be a blatant disregard of Article 5 of the Club’s Constitution which specifies the period of membership renewal to be in the first 3 months of the year closing on 31st March, every year, which in the instant case had ended on 31st March, 2024.

9. The Claimant also notes that the Respondent’s Executive Committee on 14th August, 2024, issued a notice of Annual General Meeting that was scheduled for 6th September, 2024 in total disregard of its constitution and the relevant statutes and regulations. This is because if they had been in office since 8th August 2020, then their four year term would have lapsed on 8th August 2024 at the very latest.

10. The Claimant noted that Regulation 20 (1) of the Sports Registrar Regulations, 2016 also stipulated that an organization shall hold election in accordance with the Rules provided in its constitution. the Constitution in this case at Clause 11 was explicit that:Clause 11 (c)Election of the office bearers shall be held every four years at the AGM in the year of election. Eligibility for re-election shall be for a period of one term only

11. In anticipation of such election, there were provisions for holding the Annual General Meeting that were also time bound as annually. The Claimant avers that the Respondents never held any AGM for the entire four years which led to numerous complaints being made to the Registrar of Sports by the members of the Club. However, the Respondents still failed to hold the Annual General Meetings despite a directive by the Registrar of Sports vide a letter dated 17th July 2024.

12. The Claimant also noted that the Respondents failed to constitute a Board of Trustees for the club during their tenure in office as was required by the Club’s Constitution that stipulates in clause 7 that;The Board of Trustees shall be the top oversight governing Organ of the Club

13. Whilst the firm of Weru & Munyoro filed a Notice of Appointment ostensibly representing all the Respondents, there was no further filings of a formal reply to the Claim.

14. The 3rd Respondent subsequently filed a Replying Affidavit dated 7th October 2024, in which other than agreeing to the Claims raised by the Claimant wholeheartedly, stated that he had been excluded fully from the Executive Committee of the Club after raising flagrant and serious financial and management improprieties that were being perpetuated by the 1st, 2nd and 4th Respondent.

15. The 3rd Respondent attached a Press Release dated 23rd August 2021 in which she had adverted to some improprieties by other Executive Committee members. Indeed she posited that:Way forward: We as a club should be champions of our Constitution.

16. As such, the 3rd Respondent in her response extricated herself from the wrong doings and breach of the Constitution which she insists at paragraph 13 of her Replying Affidavit that she has not been part of.

17. Vide Written Submissions dated 28th October 2024, the Claimant reiterated his Claim and brought to the attention of the Tribunal the fact that his Claims had not been controverted by the Respondents, but had in any event been supported by the 3rd Respondent.

18. The Claimant submitted that it was only logical that this Honourable Tribunal grants the prayers sought by the Claimant, as the Club is going to the dogs and to serve as a stern warning to sports administrators that these clubs are not their personal property nor are they demigods to operate outside the confines of the law.

Issues 19. Having had a keen look at the Memorandum of Claim and the necessary pleadings, the Tribunal finds the salient issues for determination to be;i)Whether the Respondents' continued stay in office is unlawful.ii)Whether the Respondents have neglected or failed to enforce compliance.

20. It is the Tribunal’s considered view that the two issues are intertwined, hence shall be dealt with simultaneously.

Analysis 21. It is the Claimant’s submission that the Executive Committee for Gor Mahia Football Club came into office on 8th August 2020, and is required by its Constitution and by statute to last a period of four years, before holding elections.

22. The Constitution that was furnished to the Tribunal indicates that it is the Jukwa Members Final Draft compiled in June 2019 and which had been complied by the GMFC Constitutional Review Committee. The difficulty the Tribunal faces is that this is not a certified copy and the same has however not been controverted by the Respondents.

23. Indeed, the respondents seem so to have assumed office in 2020 which is after this Constitution and thus one may make the presumption that their taking office was courtesy of this Constitution.

24. Further, the Registrar of Sports has also been shown to have written to the club on 17th July 2024 in which she requested for an amendment of the Constitution of the Club within seven days which fell on 24th July 2024. There is no proof that any other constitution was furnished to the Registrar.

25. In any event, the failure by club officials to amend Constitutions and abide by the Sports Act is interpreted against the said officials as they cannot be beneficiaries of their own misdoings or failure to comply. In Kenya National Sports Council and others v Purity Njoki and others HCCA E929 of 2023, Justice Ng’arng’ar stated at paragraph 53:In my view, the appellants were shrewd in their conduct for they contemplated that since the 1st appellant would not be recognized, then their terms of office would similarly be non recognizable. I think the appellants were well aware of their intentions behind this craft but I do not those would be repercussions for failing to register an organization as set out in Section49. It is apparent that the 2nd, 3rd, and 4th Appellants wanted to have a second bite at the cherry and use the interpretations of those provisions to benefit from an unjust act. That is an abuse of the process of court.

26. For this same reason, the Tribunal relies on the Constitution provided in which it is an uncontroverted that Article 11 (c) of the Gor Mahia Constitution of 2019 provides that:-Election of the office bearers shall be held every four years at the AGM in the year of election. Eligibility for re-election shall be for a period of one term only.

27. This is in consonant with the Second Schedule of the Sports Act, 2013 that has provided for election intervals of four years and imposes term limits.

28. In addition, the Sports Act, 2013 insists on the inclusion of the general principles for an electoral system as enunciated under Article 81 of the Constitution, which provides-81. The electoral system shall comply with the following principles—(a)freedom of citizens to exercise their political rights under Article 38;(b)not more than two-thirds of the members of elective public bodies shall be of the same gender;(c)fair representation of persons with disabilities;(d)universal suffrage based on the aspiration for fair representation and equality of vote; and(e)free and fair elections, which are—(i)by secret ballot;(ii)free from violence, intimidation, improper influence or corruption;(iii)conducted by an independent body;(iv)transparent; and(v)administered in an impartial, neutral, efficient, accurate and accountable manner.

29. We note further that the right of every citizen of Kenya to participate in a free and democratic elections is further anchored under Article 38 of the Constitutionof Kenya, 2010 which provides-(2)Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for—(a)any elective public body or office established under this Constitution; or(b)any office of any political party of which the citizen is a member.(3)Every adult citizen has the right, without unreasonable restrictions—(a)to be registered as a voter;(b)to vote by secret ballot in any election or referendum; and(c)to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office.

30. Whilst these are general principles of holding of elections, this is nonetheless the test that has been adopted by the Sports Act through its reference to the general principles of an electoral system.

31. Moreover, Regulation 20 of the Sports Registrar Regulations provides that an organization shall hold elections in accordance with the Rules provided in its constitution.

32. This Tribunal cannot emphasize enough on the vital importance of law and statutory adherence, especially to a Club that clearly insists for the same under the objects of its constitution.

33. Essentially, the Constitutional provisions, the Sports Act, 2013, and the accompanying Sports Registrar Regulations, 2016, are designed to establish a legal framework for the proper governance of sports organizations in Kenya.

34. One key element of this framework is the requirement to hold elections within a specified timeframe, which in this case is ninety days from the date of registration. The importance of holding elections has been affirmed by this Tribunal in the case of Football Kenya Federation vs. Sports Registrar & 64 others (Interested Parties) where it held as follows:The purpose of competitive elections is to offer voters a choice between different philosophies, manifestos and visions so that they can decide who their leaders will be for the term as defined in the Constitution. When such choice is taken away from the voters, then it cannot be said that the ascendancy into office of the sole candidate who meets that criterion is legitimate.”

35. A cursory look at Clause 4(iii) of the Gor Mahia Football Club Constitution provides one of the objectives to as;To protect the rights of members, staff, GMFC, contractors and other stakeholders through enactment and operationalization of laws and by-laws in accordance and adherence to the Constitution of Kenya 2010 and as amended from time to time, GMFC Constitution, The Sports Act 2013, FKF Rules and Regulations, CECAFA, CAF and FIFA statutes. (Underlining ours)

36. The Tribunal's decision in SDTCS no. E010 of 2023; John Odhiambo Ogara versus Kenya Volleyball Federation is germane on the need for sports organizations to abide by their constitution. The Tribunal stated:-It is the responsibility of the Federation in the first instance to act in compliance with its own constitution in relation to the conduct of its elections and other affairs. Such fidelity to the Constitution is what gives legitimacy to the functions and processes of any sports organization.

37. Furthermore, the case of Khelef Khalifa & 2 others v Independent Electoral and Boundaries Commission & another [2017] eKLR establishes a vital distinction between obligations and discretions imposed by legislation.Breach of an obligation, which is mandatory, has legal consequences and affects the validity of subsequent acts. Discretions, on the other hand, grant latitude to decision-makers but do not necessarily lead to a legal violation if not exercised.In this context, it is crucial to discern whether the provisions governing the Respondent’s actions impose an obligation or confer discretion. Failure to comply with obligatory statutory provisions renders one’s actions void.

38. Based on the above cited decisions, this Tribunal wishes to state that strict adherence to the Club Constitution, as well as the relevant national sporting regulations, is not merely a formality but a cornerstone of legitimate and lawful club operations. Any deviation from these established guidelines, especially in matters as fundamental as membership rights and club governance, can have serious legal consequences and undermine the integrity and stability of the club.

39. It is noteworthy to state that the Long Title of the Sports Act stipulates that it is:An Act of Parliament to harness sports for development, encourage and promote drug-free sports and recreation; to provide for the establishment of sports institutions, facilities, administration and management of sports in the country, and for connected purposes.

40. The administration and management of sports organizations behoves the officials of the sports organizations to maintain amongst other values, corporate governance principles.

41. It is for this reasons that the Sports Act is read sequentially with the need for each sports organization to apply for registration as such and under section 46 (4) be accompanied by a certified copy of the Constitution.A constitution submitted under subsection (3) [of Section 46 but in actual fact referring to subsection 4] shall contain as basic minimum, the provisions set out in the Second schedule.The Second Schedule then as adverted to at paragraph 27 in this decision states that:the Constitution of a body seeking registration as a sports organization 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;(b)only citizens of Kenya shall be eligible for election as the Chairperson, secretary or treasurer of a body at the national level;(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.;(d)elections shall be held in accordance with the general principles for the electoral system as stipulated in Article 81 of the Constitution;

42. Certain clauses above refer to national sports organizations such as the clause for citizenship since it is noteworthy that national sports organizations are presumed to have a patriotic element. The Tribunal stated this at paragraph 64 of the decision in Swaleh Talib Abubakar v Stabilization Committee of Kenya Swimming Federation E013 of 2023:Indeed, the Sports Act takes cognizance of the major responsibility of selection to represent the country that it alludes to this being a patriotic duty by insisting under the Second Schedule of matters to be provided for in the constitutions of sports organizations that only citizens of Kenya shall be eligible for election as the chairperson, secretary or treasurer of a body at the national level.

43. By implication, a club like Gor Mahia Football Club that is not a national sports organization would have such modifications in its Constitution without the requirement for citizenship. However, it will not have any modification on other clauses such as clauses on the term of office that has been set at four years.

44. The officials include Trustees that were not in place as required by Clause 8 of the Constitution. It is important that the Tribunal notes that the position of Trustee is not statutorily provided for. This seems to be carry over by the Club from the provisions in the Societies Act that noted the lack of capacity the clubs to own property in their own names and required such property to be vested in the Trustees. Section 50 0f the Sports Act however allows the sports organizations to hold property in the sports organizations.

45. Be that as it may, the Trustees as per the Gor Mahia constitution also play more than an advisory role and seemingly also have powers to run the Club. We presume that this possible conflict of roles is amongst the reason the Registrar of Sports required a comprehensive review of the Constitution.

46. Sports Organizations should be aware that Constitutions of sports organizations whilst being living documents are not however the domicile of actions and plans and strategy. These can easily attract breach-of-the-Constitution challenges by members. It is not for instance a constitutional issue for the Club to state under Clause 19 that:The club shall adopt and implement E-Ticketing as its’ preferred mode for match ticket sales.

47. Having said that, we also tale note that the Claimant also submits that the Respondents failed to take into account the directive by the Sports Registrar issued on 17th July 2024 directing that the Club conducts elections in accordance with the law.

48. The unlawful occupancy of office, beyond the statutory timeframes, despite a directive from the Registrar of Sports, by the Executive Committee undermines the democratic principles and rights as embedded in the legal framework governing sports organizations and Articles 38 and 81 of the Constitutionof Kenya. It contravenes the clear mandates of the Sports Act and the stipulated electoral timelines, potentially allowing for indefinite extensions of incumbency, which is contrary to the public interest. These statutory violations erode public trust in sports governance, threatens the sustainability of the sport, and compromises the welfare of athletes, players, and coaches.

49. The Claimant submits that the issuance of the notice of the intended AGM by the Respondents is unlawful because their tenure of office had since lapsed on 8th August 2024 by the time of making such notice. The dilemma that may obviously arise is a situation of an interregnum if the officials of the Club were to stop acting as such on the exact date their term ends without a transition mechanism in place.

50. The Tribunal concurs with the Claimant that the Respondents’ action of issuing a notice for the Annual General Meeting after their term of office had lapsed contravened the Club’s Constitution and was patently unlawful, as the Respondents ought to have convened the Annual General Meetings prior to the lapse of their term in office as required by the Club’s Constitution. This prior planning and organization would prevent the interregnum.

51. Issuance of the notice after the Term presents a chicken and egg situation for the Club. Notices are issued by the Executive Office so that elections can be held. If the Officers are not allowed to issue the Notices, then Elections being held may be delayed. Yet, if the Notices are issued by Executive Office that no longer has powers to do so due to effluxion of their term, then one may still argue that the Notices are illegal. Indeed, this very suit before the Tribunal has acted as an implicit extension of the term of office as no elections have been held since the suit was filed.

52. It is important to note that the provisions on the necessity of holding regular elections do not exist in vain, neither is adherence to the same a matter of choice. The same ought to be adhered to the letter. Acts of omission or commission that contravene these provisions are a dire contravention of the principles of good governance and the fundamental rights of club members.

53. The Tribunal reiterates the holding of this Tribunal in the case of Eshiwani V Kenya Judo Federation Tribunal case E015 OF 2023, where it was stated;The effect of the failure to have regular stakeholder meetings means that the officials who applied for registration, can and have continued to hold office and make and enforce decisions some of which are subject to ratification by other organs of the Federation. For how long can this go on? Such a position would put the management of sports in this country back to the unregulated position pre 2013 Act. The very mischief intended to be curbed by the provision of the Act especially the regulations on the frequency of elections and limitations of the tenure of office for vital offices of Federations would be defeated.

54. The invitation by the Claimant for the Tribunal to order the Registrar of Sports to appoint a Caretaker Committee are not grounded in law. Sections 52, 53 and 54 of the Sports Act grant powers to the Registrar to carry out an inspection and recommend to the Cabinet Secretary for the appointment of a Caretaker Committee. This route is not preferable.

55. The other powers to the Registrar to intervene may also stem from a complaint raised under Form M as per Regulation 10(2) of the Sports Registrar Regulations 2016 and the order to replace officers under Regulation 10(4) of the same. This has not been pursued by the Claimant and is thus a moot point.

Conclusion 56. Having considered the issues above, the Tribunal holds as follows:(i)The Notice of the Annual General Meeting issued by the Executive Committee of the Club on 14th August, 2024, and scheduling the Annual General Meeting for 6th September, 2024 was in total disregard of the relevant statutes and regulations governing sports in Kenya.(ii)The Executive Committee of Gor Mahia is and continues to hold office illegally and irregularly contrary to the provisions of the Sports Act, 2013 and the Sport Registrar Regulations 2016, as the term of the Executive Committee ended on 8th August, 2024. (iii)That though the Registrar of Sports issued notice to the club to comply with various directives including amending its Constitution, appointing an Electoral Board and conducting Elections under the direction of the Registrar, the Executive Committee has not demonstrated that they did comply.

57. Consequently, these orders from the Tribunal now abide:i)That the elections for Gor Mahia Football Club to be held within the next ninety days from the date hereof under the current Constitution.ii)That the officials of the Respondent presently holding office will continue holding office for not more than ninety days from the date hereof in order to ensure continuity of activities of the Club and facilitate compliance to the orders and directions herein to hold fresh elections.iii)That the cut off date for the members to vote shall be members on the Register by 31st March 2025 provided however that members who had registered by 31st December 2024 will be allowed to vote as they had a legitimate expectation to vote in the elections scheduled for the year 2024. iv)That a copy of this decision be promptly shared with the office of the Registrar of Sports.v)That this matter shall be mentioned periodically before the Tribunal for the purposes of monitoring compliance with these directions with the first such mention to be held on 4th February 2025. vi)Each party to bear their own costs.

DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF JANUARY 2025. GABRIEL OUKO - PANEL CHAIRPETER OCHIENG - MEMBERBENARD WAFULA MURUNGA - MEMBER