Republic v Sports Disputes Tribunal & 2 others; Football Kenya Federation Leagues and Competitions Committee & another (Ex parte) (Judicial Review E066 of 2026) [2026] KEHC 7984 (KLR) (Judicial Review) (5 June 2026) (Judgment)

Republic v Sports Disputes Tribunal & 2 others; Football Kenya Federation Leagues and Competitions Committee & another (Ex parte) (Judicial Review E066 of 2026) [2026] KEHC 7984 (KLR) (Judicial Review) (5 June 2026) (Judgment) Neutral citation: [2026] KEHC 7984 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E066 of 2026 WM Musyoka, J June 5, 2026 Between Republic Applicant and Sports Disputes Tribunal Respondent and Nairobi United Football Club 1st Interested Party Gor Mahia Football Club 2nd Interested Party and Football Kenya Federation Leagues and Competitions Committee Ex parte Football Kenya Federation Disciplinary Committee Ex parte Judgment 1.These Judicial Review proceedings were initiated herein under certificate of urgency, by way of an ex parte chamber summons, dated 9th March 2026, for leave to commence a Motion for certiorari and prohibition orders, directed at the respondent, to quash the decision of the respondent, in SDTSC E010 of 2026, made on 6th March 2026, and to prohibit the respondent from further hearing and determining any disputes between the interested parties, before exhaustion of the appeals mechanisms provided under the Constitution of the Football Kenya Federation. 2.The ex parte chamber application was placed before the Judge, on 10th March 2026, and the leave and stay sought were granted, and it was directed that the substantive Motion be filed. 3.The contemplated Motion was filed herein, as directed, dated 23rd March 2026. It is supported by the filings made at the leave stage. 4.According to the statutory statement, dated 9th March 2026, the interested parties played a match on 21st December 2025, at Dandora Stadium, which was abandoned, due to fans trouble and violence. The 1st ex parte applicant notified the interested parties of commencement of an inquiry and interrogation of events, for the purpose of determining status and declaring a winner, to which both sides filed responses. 5.On 22nd December 2025, the 2nd ex parte applicant notified the interested parties of commencement of disciplinary proceedings against them, and required them to file responses to show cause, to which both sides complied. On 14th January 2026, the 2nd ex parte applicant gave directions, and allocated a date for hearing. 6.A determination was made on 30th January 2026, by the 1st ex parte applicant, where the results of the match were held to be results as at the time of abandonment, being a draw of 1:1. It was also held that the 2nd ex parte applicant would prosecute all matters related to the acts of misconduct reported during the match, and deliver a verdict. 7.The 1st interested party was aggrieved by the decisions of 14th and 20th January 2026, and lodged an appeal against them, with the respondent, in SDTSC E010 of 2026, seeking to have the orders vacated. The ex parte applicants lodged a preliminary objection, on grounds that internal dispute resolution mechanisms had not been exhausted. That objection was overruled, and the appeal was allowed on merits, on 6th March 2026, and an order was made, directing the 1st ex parte applicant to re-open the case, and hear the matter afresh as between the 2 interested parties. It is this order that prompted the instant proceedings, for it is averred that the said decision was illegal, for want of jurisdiction, seeking to have the said order quashed. 8.Only one ground is advanced, and that is judicial avoidance, where a court should not determine a matter, if the same issue could be properly decided on another basis, inclusive of internal dispute resolution mechanisms, otherwise the decision of the court would be premature or illegal, should those other mechanisms not be exhausted. Communications Commission of Kenya & 5 others vs. Royal Media Services & another [2014] eKLR, Republic vs. FKF Electoral Board & others Ex Parte Luthers Mokua Naivasha HCJR Application No. E005 of 2024 and Republic vs. Sports Disputes Tribunal Nairobi HCJR Application No. 5 of 2022, are cited. 9.The verifying affidavit, sworn by Mr. Dennis Gicheru, on 9th March 2026, is virtually a replica of the statutory statement, almost word for word. 10.The 1st interested party has responded to the application, vide an affidavit, sworn by Mr. Nelson Odaya, on 14th April 2026. He avers that the application is ill-advised. He points at a portion of the decision of 6th March 2026, which raised issues around whether the ex parte applicants were properly constituted, and whether they had the lawful mandate to handle the disputes at the material time. It is also averred that the 1st interested party, in its appeal, had sought to have the respondent determine some issues substantively, which was declined, on grounds that it would lead to usurpation of power of the internal dispute resolution mechanisms of the Football Kenya Federation. It is asserted that the respondent had jurisdiction to grant the orders it made, and to remit the dispute back to the Football Kenya Federation. 11.The application is canvassed by way of written submissions, filed by the parties active in the matter. 12.The written submissions by the ex parte applicants, dated 20th March 2026, largely rest on the existence of internal disputes resolution mechanisms, under the Constitution of Football Kenya Federation, which, at Article 67(2), provides for appeals, to an appeals committee, from decisions of the committees. Republic vs. FKF Electoral Board & others Ex Parte Luthers Mokua Naivasha HCJR Application No. E005 of 2024, Al Amin Abdalla vs. Lillian Dorcas Kazungu & another [2020] eKLR and Republic vs. Sports Disputes Tribunal [2022] eKLR, are cited, where those internal mechanisms of the Football Kenya Federation were upheld. 13.It is further submitted that the respondent and the 1st interested party had admitted the existence of the appeals committee. Adherence to the doctrine of exhaustion of remedies is emphasised, supported by citations to Albert Cahurembo Mumbo vs. Maurice Munyao & others [2019] eKLR and Abidha Nicholus vs. The Attorney General & others [2023] KSC 113 (KLR). It is further submitted that the question of the invalidity of the ex parte applicants was not raised before the appeals committee for evaluation and determination. It is also submitted that the 1st interested party was estopped from denying existence of the internal dispute resolution mechanisms, having already submitted to them, and In the Matter of the Estate of Phyllis Muthoni Gachii (Deceased) [2023] eKLR is cited. 14.In its submissions, dated 9th April 2026, the 1st interested party, addresses 2 issues, around exhaustion of internal disputes resolution mechanisms, and the merits of the instant application. The said submissions largely reiterate the arguments made in the replying affidavit, of Mr. Odaya, that the committees of the Football Kenya Federation, which should have heard the matter had not been properly constituted. 15.There is really only 1 issue for determination, and that is whether the application is merited, at the core of which is the question of internal dispute resolution mechanisms. 16.It is not disputed that the Football Kenya Federation has an internal dispute resolution mechanism. The ex parte applicants are part of it. The 1st interested party acknowledges that, and so does the respondent, in its impugned ruling. That framework includes an appellate system. It is also not in dispute that the 1st interested party submitted to that internal dispute resolution mechanism, when it participated in the proceedings conducted by the ex parte applicants, subsequent to the abandonment of the subject match. The appeal, in SDTSC E010 of 2026, arose from the outcome of the proceedings of that internal dispute resolution mechanism. The respondent assumed jurisdiction on the basis that the constitution of the ex parte applicants was suspect, and quashed the decisions of the ex parte applicants, but declined to assess compensation, on grounds of lack of jurisdiction, and reverted that issue to the same internal dispute resolution mechanism that it had ruled its status was suspect. 17.These are judicial review proceedings, where focus should be on the process leading up to the decision. The principal prayer is certiorari, to quash the impugned decision, on basis of illegality and jurisdiction, and irrationality. The principal considerations for grant of a certiorari order is illegality, irrationality and unreasonableness, and procedural unfairness. See Pastoli vs. Kabale District Local Government Council & others [2008] 2 EA 30. 18.Let me start with illegality. The argument is that the domestic or internal dispute resolution mechanism had not been exhausted, despite the courts having pronounced themselves fairly emphatically, that courts and tribunals ought to avoid assuming jurisdiction in disputes were such internal dispute resolution mechanisms or frameworks exist, and the parties ought to exhaust those processes first before they approach the court, or the tribunal. Jurisdiction would be declined and suits dismissed. 19.There is ample case law on the application of the doctrine on exhaustion, where suits are dismissed for failure by the parties to exhaust internal dispute resolution mechanisms. See Hassan vs. County Government of Wajir & another [2025] KEELRC 1120 (KLR), Nyambane vs. County Government of Uasin Gishu [2024] KEELRC 1665 (KLR), Nderitu vs. Safaricom PLC & 2 others [2024] KEHC 14284 (KLR), Macaria vs. Kenya Power and Lighting Company [2024] KEHC 4009 (KLR) and Matu vs. Rubi Energy Limited [2024] KEHC 15235 (KLR). 20.In the realm of sports, specifically in football, there are decisions too, where the courts have declined to hear matters filed by parties who bypass the internal dispute mechanisms of the Football Kenya Federation. See Republic vs. Sports Disputes Tribunal; Football Kenya Federation & 2 others (Ex parte); FKF National Executive Committee & 50 others (Interested Parties) [2023] KEHC 20326 (KLR) and Republic vs. FKF Electoral Board & 2 others; Sports Registrar & 2 others (Interested Parties); Mokua (Ex parte Applicant) [2024] KEHC 15759 (KLR). 21.I am alive to the position that a court or tribunal may allow a direct approach to the court or tribunal, bypassing that internal dispute resolution framework, in circumstances where strict adherence to the doctrine would be unjust. That approach was adopted in Kaaria & 5 others vs. United Democratic Alliance & another [2024] KEPPDT 516 (KLR), where the internal dispute resolution mechanism failed to act. 22.The issue here was not about failure to act, or collapse of the internal dispute resolution system, but rather that there was suspicion that the same was not properly constituted. Yet, where the respondent felt that it had no jurisdiction over one of the issues raised, it recognised the same internal dispute resolution framework it was denigrating, and reverted the said issue to that same mechanism, for resolution. 23.My conclusion is that there was an internal dispute resolution framework, which the 1st interested party and the respondent acknowledged. The respondent ought not have assumed jurisdiction over the dispute presented before it, in SDTSC E010 of 2026, and should have dismissed the claim, to allow the parties exhaust the internal dispute resolution mechanism. In view of the case law stated above, the respondent acted in a manner that was not legal, for it assumed jurisdiction where it should not have. 24.On irrationality and unreasonableness, I note that the respondent found that the internal dispute resolution framework of the Football Kenya Federation was shaky, for it was not properly constituted, yet, in the same breath pronounced that it had no jurisdiction over some other issue, and reverted that issue to the same internal dispute resolution framework for resolution. So, what was it? Did the Football Kenya Federation have an internal dispute resolution framework or did it not? There was an element of flipflopping, suggesting irrationality or unreasonableness. 25.Procedural unfairness has not been raised, and, therefore, I shall not address my mind to it. 26.On certiorari, I am persuaded that a case has been made out, based on the discussion above. 27.The other prayer is for prohibition, to stop the respondent from entertaining disputes arising between the interested parties, from committees, before the exhaustion of the appeal mechanisms provided under the Constitution of the Football Kenya Federation. 28.It is too broad. It is also speculative. It is not specific to any particular case that is before the respondent, in which the ex parte applicants are party, and which they would like the respondent barred from proceeding with or determining on grounds of illegality, lack of jurisdiction, bias, or other. Judicial review orders target specific decisions or proceedings. Unlike injunctions or declarations, in ordinary suits, which may be futuristic, prohibition is not, and it cannot issue to bar future uncertain events. There has to be a live or active case. Prohibition should target ongoing proceedings or proceedings that are about to be commenced, to forestall the making of a decision that may be tainted with illegality, irrationality or procedural unfairness. The order of prohibition cannot, in the circumstances, be available. 29.In view of everything said here above, I find and hold that there is merit in the Motion, dated 23rd March 2026, to the extent of the order of certiorari. Consequently, I do hereby allow the said motion, in terms of prayer 1 thereof. Each party to bear their own costs. Orders accordingly. DELIVERED, VIA EMAIL, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 5TH DAY OF JUNE 2026.W MUSYOKAJUDGEMr. B Rinkanya, Court Assistant.AdvocatesMr. Njenga, instructed by MKN & Company, Advocates for the ex parte applicants.Mr. Ochieng, instructed by Ken Ochieng & Company, Advocates for the 1st interested party.