[2022] KEHC 10078 (KLR)

Republic v Chairman of the FKF Caretaker Committee & 5 others; Kenneth Kiprop Rutto (Suing as the Football Kenya Federation Baringo Branch Chairman) (Exparte); David Kimutai Siele (Chairman FKF Bomet Branch) & 106 others (Interested Party) (Judicial Review Miscellaneous Application E196 of 2021) [2022] KEHC 10078 (KLR) (Judicial Review) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10078 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Miscellaneous Application E196 of 2021

AK Ndung'u, J

July 21, 2022

Between

Republic

Applicant

and

Chairman of the FKF Caretaker Committee

1st Respondent

Registrar of Sports

2nd Respondent

C.S Ministry of Sports, Culture and Heritage

3rd Respondent

Office of the Attorney General

4th Respondent

Solomon Chemeltorit Mssto

5th Respondent

Wilfred Marori

6th Respondent

and

Kenneth Kiprop Rutto (Suing as the Football Kenya Federation Baringo Branch Chairman)

Exparte

and

David Kimutai Siele (Chairman FKF Bomet Branch) & 106 others

Interested Party

Ruling

1. The ex parte Applicant (hereinafter “the Applicant”) filed an application by way of an Amended Chamber Summons dated 20th December, 2021 seeking the following Orders:a.Spent.b.That the Honourable Court be pleased to grant leave to the Applicant to apply for an Order of Certiorari to quash the decision by the 1st Respondent by letter dated 14th December, 2021. c.That the Honourable Court be pleased to grant leave to the Applicant to apply for an Order of Certiorari to quash the decision by the 5th Respondent in the letter dated 16th December, 2021. d.That the Honourable Court be pleased to grant leave to the Applicant to apply for an Order of Certiorari to quash the decision by the 6th Respondent in the letter dated 16th December, 2021. e.That the Honourable Court be pleased to grant leave to the ex parte Applicant to apply for an Order of, Prohibition to prohibit the Respondents by themselves, agents, employees or Whomsoever from interfering with the activities, operations of the 48 Football Kenya Federation branches and clubs.f.That the Honourable Court be pleased to grant leave to prohibit the Respondents from interfering with term of office of Football Kenya Federation Branches.g.That the Honourable Court be pleased to grant leave to the Applicant to apply for an Order of Mandamus, to compel the Respondents by themselves, agents, employees or Whomsoever to smooth running of the activities at the grassroots in the 48 FKF branches.h.That the costs of and incidental to this application shall abide in the outcome of the Application herein.i.That the grant of leave to apply for the orders of Certiorari, Prohibition and Mandamusdo operate as a stay of the decision to call upon FKF Branches to stop running activities together with its clubs upon registration with the Sports Registrar, prohibit county associations from running FKF football activities through its members by the 1st Respondent letter dated 14th December, 2021.

2. The grounds of the application are stated in the Applicant’s statutory statement dated 17th December, 2021 and a verifying affidavit sworn by the Applicant on even date.

3. The gist of the Applicant’s case is that the Cabinet Secretary of Sports, Culture and Heritage in exercise of the powers conferred upon her by section 54(1) of the Sports Act 2013, appointed the 1st Respondent vide Gazette Notice number 1237 who took over the functions of the Football Kenya Federation (FKF) National Executive Committee as provided for under Football Kenya Federation Constitution 2017. Thereafter, the 1st Respondent through a press release directed the Committee to call upon all clubs and associations to ensure that they fully comply with the requirements of Sports Act, 2013 to be able to run football at the grassroot and to deal with branches and associations that were compliant.

4. Following that directive, the 5th Respondent on 15th December, 2021 invited “all FKF” clubs from West Pokot County to seek commitment to comply and affiliate with West Pokot County Football Association while on 16th December, 2021 the 6th Respondent went ahead and allegedly illegally restructured FKF Nairobi Branch grassroots league structure as follows ‘Elite Super league(formerly FKF Division two Ieague),County Super League(Formerly FKF Regional Leagues) Sub County Leagues(Formerly FKF County Leagues) creating an impasse at the 48 branches and FKF grassroots clubs. Consequently, the FKF grassroots football activities all over the 48 branches have stagnated with county associations letter dated 15th December, 2021 threatening to unlawfully take over the office and functions of duly constituted office and officials.

5. The 1st Respondent opposed the prayer for leave granted to operate as stay on the ground that the 1st Respondent acted within its mandate while the 5th and 6th Respondents were simply heeding to the call to ensure that all clubs and associations comply fully with the requirements of Sports Act 2013 to be able to run football at the grassroots. Secondly, the decision of the 1st Respondent requiring clubs to be registered with the County Associations has already been implemented with particularly the 6th Respondent having called for a pre-season meeting that was attended by all football stakeholders and clubs in Nairobi County and they have made fixtures and are already conducting various leagues in Nairobi County. Furthermore, the Applicant filed the present Application on behalf of Football Kenya Federation Baringo Branch which is not a registered and recognized entity and thus their action to bring this application now purporting to challenge a legal and well-founded decision is based entirely to advance their selfish interests as opposed to the general public interest. Indeed, it was argued that granting a stay in the circumstances would allow unregistered entities to purport to run football contrary to provisions of the Sports Act.

6. The 2nd, 3rd and 4th Respondents also opposed the prayer for leave granted to operate as stay on the ground that to stay the decisions of the Respondents meant to streamline the activities of Football Kenya Federation across the board before the legality of the Respondent’s actions is determined would undesirable, especially in light of the prejudice that may be suffered by the public in the prudent management of public funds and maintenance of the rule of law and good governance. In addition, the Applicant has not demonstrated any prejudice they are likely to suffer if a stay is not granted and that there is no strong and arguable case that a Respondents’ decision was unlawful which would entitle this court to intervene in the matter and grant the orders sought.

7. The 6th Respondent also opposed the prayer for leave granted to operate as stay on the ground that the Applicant has no locus to institute the instant proceedings. Further, no good would come from granting stay as it will disrupt leagues and allow unregistered entities to purport to run football contrary to statute yet no evidence has been adduced to show that clubs and county associations face any hurdles in complying with the Sports Act and Registrar’s regulations. A stay will therefore only interfere with the functions of the Respondents’ which are sanctioned by law.

Analysis and Determination 8. The live question for determination before the court at this stage is whether the leave granted to institute judicial review proceedings herein should operate as a stay of the impugned directive.

9. The applicable principle is that the grant of an order that leave granted operates as a stay is discretionary. Like all discretions, it should be exercised judiciously. Order 53 Rule 1(4) of the Civil Procedure Rulesprovides as follows in this respect:“The grant of leave under this rule to apply for an order of prohibition or an order of certiorari shall, if the judge so directs, operate as a stay of the proceedings in question until the determination of the application, or until the judge orders otherwise.”

10. In R (H). v Ashworth Special Hospital Authority (2003) 1 WLR 127, the applicable principle was laid in the following terms;“As I have said, the essential e­ffect of a stay of proceedings is to suspend them. What this means in practice will depend on the context and the stage that has been reached in the proceedings. If the inferior court or administrative body has not yet made a final decision, then the e­ffect of the stay will be to prevent the taking of the steps that are required for the decision to be made. If a final decision has been made, but it has not been implemented, then the e­ffect of the stay will be to prevent its implementation. In each of these situations, so long as the stay remains in force, no further steps can be taken in the proceedings, and any decision taken will cease to have e­ffect: it is suspended for the time being.”

11. The main factor is whether or not the decision or action sought to be stayed has been fully implemented. It was thus held in Jared Benson Kangwana v Attorney General, Nairobi HCCC No. 446 of 1995 that stay of proceedings should be granted where the situation may result in a decision which ought not to have been made being concluded. A similar decision was made by Maraga J. (as he then was) inTaib A. Taib vs. The Minister for Local Government & Others Mombasa HCMISCA. No. 158 of 2006.

12. It therefore follows that where the action or decision is yet to be implemented, a stay order can normally be granted in such circumstances. Where the action or decision is implemented, then the Court needs to consider the completeness or continuing nature of such implementation. If it is a continuing nature, then it is still possible to suspend the implementation.

13. In determining whether to grant stay or otherwise in circumstances like in the instant suit, the court will be concerned with insulating the proceedings before it with a view to ensuring that the outcome of the proceedings is not rendered nugatory. I agree with Odunga J in his holding in R vs Richard Kerich & 5 Others[2013] eKLR that once the court has granted leave as in this case, the question of whether the Application is arguable becomes moot as that is the basis upon which leave was granted. The relevant consideration then becomes one centred on whether the substantive Motion would be rendered nugatory if stay is not granted. In the words of Odunga J in the above case;“In my view, it is only when the imminent outcome of the decision challenged is likely to render the success of the judicial review nugatory or an academic exercise that the court would stay the said proceedings the strength of the applicant’s case notwithstanding.’’

14. The decision by the 1st Respondent is in the form a directive that was issued to all football clubs and associations and the said directive has already been implemented and clubs have registered with the county associations and have begun the respective league matches in their designated counties of origin. If the Applicants were to succeed in the present action, nothing would have been lost as it would be possible to restructure the football leagues accordingly. Staying the impugned directive would, in my view, be against public interest noting the many stakeholders to be affected and specifically the players and their fans.

15. In the premises, the plea that the leave granted herein operates as a stay is declined.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 21ST DAY OF JULY, 2022. ...............................A. K. NDUNG'UJUDGE