[2022] KEHC 1295 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

CONSTITUTIONAL PETITION NO. E002 OF 2021

BETWEEN

ROBERT KENNETH WANYOIKE MACHARIA…....................................PETITIONER

VERSUS

CABINET SECRETARY SPORTS, CULTURE & HERITAGE…....1ST RESPONDENT

ATTORNEY GENERAL.......................................................................2ND RESPONDENT

THE SPORTS REGISTRAR.................................................................3RD RESPONDENT

AND

FOOTBALL KENYA FEDERATION..........................................INTERESTED PARTY

AND

FKF CARETAKER COMMITTEE..............................................................APPLICANT

RULING

1. The FKF Caretaker Committee (hereafter the applicant) prays for leave to be enjoined in the petition as the 4th respondent.

2. The applicant’s motion is dated 9th February 2022 and is supported by a deposition of Ms. Linda Ogutu, its head of secretariat. She deposes that the committee was appointed by the 1st respondent under section 54 (1) of the Sports Act 2013 (hereafter the Act) vide Gazette Notice No. 12374 of 11th November 2021.

3. She avers that the order issued on 28th January 2022 restraining the respondents from coordinating or holding elections for the petitioner’s office or interfering with his current term of office has “affected the execution of the mandate of the [applicant] to conduct all the affairs of football effectively”.

4. The applicant contends that the impugned order was obtained by deceit or non-disclosure by not naming the committee as a party yet the latter is “directly and greatly affected by the conservatory order”. It is averred that the committee is mandated to coordinate the elections of Football Kenya Federation (the interested party) under the Act and the Sports Regulations 2016.

5. It is important to point out that the motion seeks other reliefs including a prayer to set aside the conservatory order. However, I directed that prayer 2 for joinder be canvassed first.

6. Learned counsel for the applicant filed detailed submissions and a list of authorities on 23rd February 2022.

7. The motion is contested by the petitioner. The three respondents did not oppose the prayer for joinder.

8. The petitioner’s replying affidavit was sworn on 16th February 2022. The objections are three-fold: That the applicant is not a necessary party; secondly, that the applicant lacks legal personality to sue or be sued; and, thirdly, that its legal counsel who is also its secretary was improperly appointed by dint of Article 227 of the Constitution.

9. Those arguments are augmented by the petitioner’s submissions filed on 24th February 2022.

10. On 24th February 2022, I heard further arguments from counsel for the applicant and that of the petitioner.

11. The court has discretion to enjoin a party by dint of Rule 5 (d)(ii) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013.

12. The main petition is pending for hearing. It would thus be prejudicial to comment on the merits of the dispute. But I can safely say the following: The dispute before the court revolves around the disbandment of the National Executive Committee of FKF (the interested party) by the Cabinet Secretary for Sports, Culture and Heritage (the 1st respondent); and, her subsequent appointment of the caretaker committee (the applicant). In a nut shell, the petitioner’s case is that the actions of the 1st respondent were in breach of the Sports Act and the Constitution.

13. From the materials submitted by the applicant, the caretaker committee was appointed by the 1st respondent under section 54 (1) of the Act through Gazette Notice No. 12374 of 11th November 2021.

14. The applicant has not proposed to be enjoined through any of its officials. It has instead applied to be directly enjoined as the 4th respondent. In my view, the mere gazettement of the caretaker committee does not clothe it with legal persona to sue or be sued in its name. I readily find that the caretaker committee does not accurately fit into the definition of a person under Article 258 of the Constitution.

15. But in the event I am wrong, I also find that the principal respondent is the Cabinet Secretary for Sports, Culture and Heritage (who has been sued as the 1st respondent) and is represented in these proceedings. Secondly, the public interest is being defended by the Attorney General (the 2nd respondent). Article 156 of the Constitution makes him the principal legal adviser to the Government charged with the responsibility of promoting, protecting and upholding the rule of law and defending public interest.

16. My findings on those issues are sufficient to dispose of the motion. The upshot is that prayer 2 in the applicants notice of motion dated 9th February 2022 to be enjoined as the 4th respondent in the petition is hereby dismissed with no order on costs.

It is so ordered.

DATED, SIGNED AND DELIVERED AT MURANG’A THIS 8TH DAY OF MARCH 2022.

KANYI KIMONDO

JUDGE

Ruling read in open court in the presence of-

Ms. Kyumu holding brief for Mr. Muchemi for the applicant instructed by Muchemi & Company Advocates.

Ms. Kimani for the petitioner instructed by R. M. Kimani & Company Advocates.

No appearance by counsel for the 1st, 2nd & 3rd respondents.

Ms. Susan Waiganjo, Court Assistant.