[2022] KEHC 18079 (KLR)

Republic v Sports DisputesTribunal; Registrar of Sports & 3 others (Interested Parties); Shigoli (Exparte) (Application 120 of 2019) [2022] KEHC 18079 (KLR) (Judicial Review) (14 October 2022) (Judgment)

Neutral citation: [2022] KEHC 18079 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Application 120 of 2019

J Ngaah, J

October 14, 2022

Between

Republic

Applicant

and

Sports Disputes Tribunal

Respondent

and

Registrar of Sports

Interested Party

Peter Muchiri Kamau

Interested Party

John Mburu

Interested Party

Malika Sood

Interested Party

and

Geoffrey Shigoli

Exparte

Judgment

1The applicant’s application is a motion dated 25 April 2019 seeking the following orders: 1. That an order of prohibition do (sic) issue directed at the respondent and the 1st interested party prohibiting them from implementing the respondent’s decision in Sports Disputes Tribunal Appeal No. 18 and 13 of 2017 dated 1st February, 2019, which extended orders in its decision dated 13th March, 2018 and in its order dated 5th February, 2019 and 5th of March 2019.

2. That an order of prohibition do (sic) issue directed at the respondent and the 1st interested party prohibiting the respondent and the 1st interested party and each of them from issuing any no orders, notices and directions, or making any decisions adverse to the ex parte applicant’s rights, before due and full compliance with all of the legal requirements relating to the registration of an association for the sport of badminton in Kenya.

3. That an order of certiorari do (sic) issue to remove into the High Court and quash the respondent’s decision in Sports Disputes Tribunal Appeal No. 18 and 13 of 2017 dated 1st February, 2019, which extended orders in its decision dated 13th March, 2018 and in its order dated 5th February, 2019 and 5th of March 2019.

4. That an order of mandamus do (sic)issue directed at the respondent compelling it to perform its statutory duty as stipulated under the provisions of the Sports Act (No. 25 of 2013) and consider each and every ground or concern which the ex parte applicants have raised concerning the dispute over the registration of a sports association for the sport of badminton in Kenya.

5. That the declaration do (sic) issue that the respondent, on account of the various matters complained of in this application has breached the ex parte applicant’s rights to a fair administrative action, as articulated by sections 3, 5, 5 and 6 of the Fair Administrative Action Act, and further guaranteed under Articles 10, 47 and 232 of the Constitution.

6. That the costs of this application be provided for.”

2The application is made under Articles 10, 47 and 232 of the Constitution; sections 3, 4, 5, 6 and 7 of the Fair Administrative Action Act, No. 4 of 2015; section 3A of the Civil Procedure Act cap. 21 and Order 53 rule 1 of the Civil Procedure Rules.

3The affidavit in support of the application was sworn by the 1st applicant on his own behalf and on behalf of the rest of the applicants.

4The application is also based on the statutory statement dated 18 April 2019.

5In the affidavit, the applicants have deposed that the 2nd, 3rd and 4th interested parties, who have also been described as “subsequent officials” filed a claim dated 22 June 2017 and amended on 19 June 2013 before the respondent in Tribunal Appeal No. 18 of 2017 (consolidated with Appeal No. 13 of 2017) in which the said interested parties represented themselves as the bona fide officials of Badminton Kenya.

6The claims were against Peter Gacheru, Anna Njambi and the 1st applicant. These parties have been described in the affidavit as “original officials”. The other parties sued in those claims were the officials of the National Olympic Committee of Kenya (NOCK) and Kenya Commercial Bank.

7The prayers sought in the claims were stated as follows:a.)Injunctive orders against the original officials to restrain them from convening or proceeding with any meeting of Badminton Kenya, transacting with or operating in any way bank account number 1107494397 held in the bank (“the bank account”) and representing themselves as the bona fide officials of Badminton Kenya.b.)Declarations that: the subsequent officials are bona fide officials of Badminton Kenya; the original officials are not authorised to represent themselves as the bona fide officials of Badminton Kenya; the subsequent officials are entitled to the control of all the rights, funds, assets, bank accounts and any other property belonging to Badminton Kenya; all the rights, powers and duties for the administration of the sport of badminton in Kenya including but not limited to the preparation of all sporting competitions are completely and wholly vested in the subsequent officials.c.)An order compelling the original officials to fully account and relinquish to the subsequent officials control over the funds, assets, bank accounts and other property belonging to Badminton Kenya.”

8The claim by the subsequent officials was based on the grounds that they were the bona fide officials of Badminton Kenya having been recognised as such by the Registrar of Sports through an interim certificate of registration number 95, dated 24 March, 2017 and affirmed by the Sports Disputes Tribunal in its ruling dated 4 May 2017.

9It was also the subsequent officials’ case that before they were appointed the bona fide officials of Badminton Kenya on 24 March 2017, the original officials who were then in charge and control of the sports organisation that was responsible for the administration of the sport of Badminton in Kenya, had failed to transition the said organisation by 1 August 2014 in accordance with the Sports Act, 2013. It followed that the original officials ceased to be deemed officials of Badminton Kenya on 1 August 2014 and after that date they could only have been masquerading as such officials.

10In rebuttal to the subsequent officials’ case, the original officials urged that the interim certificate had been issued by the Registrar of Sports without following due process of the law. It was their case that the Constitution of Badminton Kenya had not been brought to the attention of membership of this organisation and neither had the membership endorsed or ratified it.

11The original officials also contended that the subsequent officials did not seek or receive the mandatory approval for registration from any organ or member of Badminton Kenya as required by the Sports Registrars Regulations. And neither did any international affiliate endorse the subsequent officials as representing the Association as provided for under the Sports Act.

12They urged further that since the Registrar of Sports had issued the original officials with the requisite registration forms she was duty bound to inform the original officials that some other parties had sought to be registered as officials of the same organisation. In any event, since the subsequent officials had not been officials or members of Badminton Kenya, they did not have the mandate to seek registration as interim officials on its behalf.

13The application for registration by the subsequent officials was also lacking in vital respects. For instance, it did not have an updated register of affiliates, club officials and athletes as required by regulation 4(3)(b) of the Sports Registrar Regulations, 2016; there was no evidence in the application of branch offices in at least 24 counties at the time of the application as required by regulation 4(3)(c) of the same regulations; and, there was no logo and emblems of the existing Badminton Kenya as required by regulation 4(3)(f) of the regulations.

14The applicants’ case in the instant application is that the respondent ignored these contentions by the original officials in the impugned decision dated 1 February 2019.

15In order to avoid a crisis in the administration of badminton sport in Kenya on account of the impugned decision, parties entered into negotiations and agreed upon time lines and specific modalities for the conduct of elections for officials in the organisation. However, the 2nd, 3rd and 4th interested parties purported to unilaterally call for elections and were scheduled to be held on 27 April 2019.

16It is for the reason that the interested parties have acted upon the respondent’s decision that the applicants have found it necessary to file the present application.

17It is the applicant’s case that the impugned decision was made in total disregard of the due process and the law. According to them, there is no rational or legal basis upon which the subsequent officials could be issued with a registration certificate. They have also urged that the respondent did not adhere to the applicable statutory provisions and consequently, its decision is tainted with procedural impropriety, illegality and is ultra vires.

18They have also urged that the decision is contrary to the applicant’s legitimate expectation because in the absence of compliance with the prescribed procedure by the subsequent officials in their application for registration, the decision to issue them with the certificate is irrational.

19The application was opposed. The respondent filed grounds of objection according to which it urged that the applicants are surrogates of the previous applicants in Sports Disputes Tribunal Appeals Nos. 13 and 18 of 2017. The application by the applicants, they have urged, is an appeal disguised as an application for judicial review. They also averred that the suit is res judicata in light of the decision by Odunga, J in Judicial Review Application No. 367 of 2017 Anna Nganga & 6 Others versus the Registrar of Sports Kenya & Another.

20A replying affidavit was also filed on behalf of the respondent and the 1st interested party. It was sworn by Luke Luseno, who is the registrar of the Sports Disputes Tribunal.

21He has sworn that upon the enactment of the Sports Act in 2013 all sports organisations were required to transition under the new legal regime and obtain a certificate of registration.

21Vide the order made on 17 May 2016, the tribunal directed the Registrar of sports to issue all sports organisations with interim certificates of registration. This was done pending the gazettment of the Sports Registrar Rules governing the registration of sports organisations in the country. The move was also necessary to ensure that there was no gap in the management of sports organisations in the country.

22The 2nd, 3rd and 4th interested parties applied for and were subsequently issued with an interim registration certificate on 24 March 2017 as interim officials of Badminton Kenya, which is the national sports organisation responsible for the sport of badminton in Kenya.

23On 4 May 2017, the 2nd interested party filed Sports Tribunal Appeal No. 13 of 2017 protesting the decision of the National Olympic Committee of Kenya to recognise the 1st applicant together with Anna Njambi Nganga as the representatives of Badminton Kenya, despite the fact that the 2nd interested party had been issued with an interim certificate of registration for this organisation.

24By an order made on 4 May 2017, the tribunal held that the bona fide officials of Badminton Kenya were the current officials. On their part, the current officials of Badminton Kenya whom the applicants have described as the subsequent officials, filed the Sport Dispute Tribunal Appeal No. 18 of 2018 claiming, inter alia, that the former officials of Badminton Kenya while holding themselves out as the officials of this organisation were in breach of the order of the tribunal of 4 May 2017.

25In the same appeal, the former officials filed an application seeking the cancellation or suspension of the certificate of registration issued to the current officials.

26On 5 February 2019, the respondent barred the former officials from conducting any affairs of Badminton Kenya and were also ordered to hand over any operations or assets of Badminton Kenya to the current officials.

27Again, by a decision that had earlier been made, more particularly on 13 March 2018 the respondent had ordered the 1st interested party to issue the current officials with the certificate of registration as the bona fide officials of Badminton Kenya.

28In an application filed in this Honourable Court Judicial Review Miscellaneous Application No. 367 of 2017, the former officials sought to impeach the decisions of the respondent but the court dismissed the application holding that their complaints could be properly determined by the respondent.

29The tribunal eventually determined the dispute on 1 February 2019. Among other orders made, the Tribunal ordered the current officials in consultation with the Registrar to convene a general meeting within 30 days with a view of formulating a roadmap for elections and, by the same token, the former officials were barred from holding themselves out as officials of Badminton Kenya.

30It is the 1st interested party’s and the respondent’s case that in arriving at its decision the tribunal followed the due process.

31The 2nd, 3rd and 4th respondents also swore a replying affidavit opposing the applicant’s application. The affidavit was sworn by the 2nd interested party on 3rd September 2019. The affidavit is rather lengthy.

32They have deposed that the applicants have come to this court with unclean hands because they have persistently disobeyed previous orders issued by the respondent with respect to the operations of Badminton Kenya holding themselves out as the officials of Badminton Kenya. Their acts of contempt are well documented and the 2nd, 3rd and 4th respondents have listed several instances where the applicants have breached the orders of the tribunal. In one particular instance, the 1st applicant was held to be in contempt of court on 8 May 2013 and was fined in the sum of Kshs. 50,000/=.

33The 2nd, 3rd and 4th respondents have also sworn that they were issued with a certificate dated 24 March 2017 before the Sports Disputes Tribunal claim number 18 of 2017 was filed. It is their case that the tribunal has dealt with the applicant’s claims in a fair and just manner.

34The 2nd applicant is said to be a Ugandan and plays badminton in the Republic of Uganda. Indeed, in several tournaments where the countries of Kenya and Uganda are involved, he has played for Uganda against Kenya whenever the two countries meet.

35The respondent also agreed that indeed the settlement agreement was reached on 24 April 2019 on elections of badminton Kenya but the applicants purported to walk out of the agreement four days to the elections. The agreement was consistent with the impugned decision that the elections will be held within 90 days from the date of the decision.

36It is apparent from the pleadings and affidavits filed by the applicant that their bone of contention is the registration of the 2nd, 3rd and 4th respondents as the officials of Badminton Kenya and the issue of a certificate to that effect by the 1st interested party.

37In their submissions they are basically saying that the respondent misapprehended the law and in particular certain provisions of the Sports Act as a result of which it reached the impugned decision.

38It is also apparent that the applicant’s arguments in this application are the same arguments that were presented before the tribunal. The applicant’s case is, by and large, the same case that the respondent was confronted with and as far as I understand the applicants, the respondent’s decision is impugned solely because it is not consistent with what the applicants believe to be the proper interpretation of the law on registration and issue of a certificate of Badminton Kenya.

39My reading of the respondent’s decision leads me to the conclusion that the respondent addressed its mind to the questions that were raised by the applicants and which, as noted, are the same questions that have been raised in the application. A few paragraphs in that judgment show this to be the case. In those paragraphs, the respondent noted as follows: 60. In this respect, before we determine this issue, it is important to determine whether Badminton Kenya is (sic) registered operate as a sports organisation.

61. From the facts set out above, it is clear that in as far as the registrar is concerned, it is the claimant’s (sic) registered as Badminton Kenya which is the organisation recognised as such, and we hereby find. The respondents have failed to supply any evidence to the effect that the organisation they purported to be officials of had complied with the provisions of the Act.

62. However, the respondent’s claim that the applicant had not in their respective application for registration complied with the mandatory provisions and the 2nd schedule. We do not find that the same was countenanced by the affidavit and approved by the sports registrar. We do find therefore that this position lacks basis. It is clear from the registrar’s affidavit that the claimants herein had sought registration by collecting the forms and returned them together with the requisite documentation. This tribunal having not had the benefit of perusing the said documents with a view of establishing compliance, we find that the respondents failed to discharge the evidentiary burden of proof.

63. It behoves the registrar not register more than one national sports organisation to run anyone discipline under section 47 of the Sports Act. This justifies the sports registrar’s strategy not issue certificates both to the claimants and respondents. This was the basis upon which the registrar rejected the applications with respect to Kenya cycling; two factions having sought registration.

64. The claimants having satisfied the 1st interested party of all the statutory requirements, was (sic) legitimately registered as such, and issued with an interim certificate in line with this tribunal’s order.

66. For the respondents, the registration of the Federation had failed by dint of section 49 of the sports (sic) that states thus:‘An existing sports organisation that does not apply for registration within the time prescribed in subsection (1) shall not be recognised as a sports organisation for the purposes of this Act.’

67. The respondents only collected registration forms on 3rd August 2015 and on 1st August 2016 in a desperate attempt to comply with the provisions of the Act. The same was nonetheless not returned by the time the interim certificate was issued to the claimants herein. We therefore agree that the respondent’s positions as officials of Badminton Kenya then fell on this basis.

68. We find that, having been recognised by the 1st interested party, the claimants are indeed the only bona fide officials of Badminton Kenya.”

38It is apparent from these paragraphs that the respondent considered both the evidence and the law and came to the conclusion that the applicants in the present application could not be registered as officials of Badminton Kenya because the 2nd, 3rd and 4th respondents had been registered as such officials and a certificate to that effect issued. According to the respondent, the applicants were simply undone by the delay in returning the forms for registration.

39Now, it is not for this Honourable Court, in exercise of its judicial review jurisdiction, to endorse the respondent’s findings on facts and its conclusions on the law. This is simply because a judicial review court does not sit as an appellate court which ordinarily would be entitled to evaluate the evidence afresh and come to its own conclusions. And unless the tribunal’s interpretation of the law is glaringly erroneous or outrageous, this court will also not interrogate whether the tribunal’s application of the law to the question at hand was the correct one. It is not open to the judicial review court to substitute its own decision for that of the tribunal simply because it would itself have arrived at a different conclusion from that reached by the tribunal.

40In OJSC Power Machines Limited, TransCentury Limited, and Civicon Limited (Consortium) v Public Procurement Administrative Review Board Kenya & 2 others (2017) eKLR Civil Appeal No. 28 of 2016 the Court of Appeal spoke to this question and noted as follows:Save for a limited scope, which we shall return to later, the court, considering a judicial review application, must never consider its role as appellate court and must avoid any temptation to go into the substance of the impugned decision itself or to ask questions, whether there was or there was no sufficient evidence to support the decision of the public body concerned. It is not for the court or individual judges to substitute their opinion for that of the public body constituted by law to decide the matter in question. See Republic vs. Kenya Revenue Authority ex parte Yaya Towers Limited (2008) Misc. Civil Appl. No. 374 of 2006. In judicial review proceedings, the mere fact that the public body’s decision was based on insufficient evidence, or on misapplication of evidence, cannot be a ground granting judicial review remedies. Whether that decision was right or not, the affected party ought to challenge it on appeal. In reaching its determination, it must, however, be recognized that a tribunal or statutory body or authority has jurisdiction to err and the mere fact that in the course of its inquiry it errs on the merits is not a ground for quashing the decision by way of judicial review as opposed to an appeal. It is only an appellate tribunal which is empowered and in fact enjoined in cases of the first appeal to re-evaluate the evidence presented at the first instance and arrive at its own decision on facts. Whereas a decision may properly be overturned on an appeal, it does not necessarily qualify as a candidate for juridical review. See East African Railways Corp. vs. Anthony Sefu Far-Es-Salaam (1973) EA 327. ”

41And in Biren Amritlal Shah & anor vs. Republic & 3 others [2013] eKLR it was noted as follows:The learned Judge would only have been entitled to interfere were it the case that there was absolutely no evidence before the Board that would have justified the upholding of the appellant’s termination of the tender. In other words, the case should have been so plainly and self-evidently devoid of evidence or basis for termination, as to render upholding of the termination an inexplicable act of capricious irrationality defiant of all logic and reason. It should have been such a decision that no reasonable tribunal, properly directing itself on the case would have arrived at. That is the Wednesbury unreasonableness that would invalidate a tribunal’s decision by way of certiorari.”

42It is trite that judicial review is concerned, not with the merits of the decision, but with the process by which the decision was arrived at. Among the many decisions where this has been reiterated is the decision in Chief Constable of the North West Police vs Evans (1982) 3 ALL ER 141 at 154 where it was held that:Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power.”

43On the whole, looking at the respondent’s decision I am not persuaded that it is tainted by any of the three grounds of judicial review of illegality, irrationality or procedural impropriety as suggested by the applicants. There is no evidence that the respondent tribunal did not understand correctly the law that regulates its decision-making power or that it failed to give effect to it. I cannot also say that the decision is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. And finally, it is clear that the applicants were given opportunity to present their case and they indeed presented it; there was no evidence of procedural impropriety. (See Council of Civil Service Unions & Others versus Minister for the Civil Service (1985) AC 374).

44In the final analysis, I hold that the applicants’ application is without merit and it is hereby dismissed with costs.

DATED, SIGNED AND DELIVERED ON 14 OCTOBER 2022NGAAH JAIRUSJUDGE