[2017] KESDT 1 (KLR)

REPUBLIC OF KENYA

THE JUDICIARY

OFFICE OF THE SPORTS DISPUTES TRIBUNAL

PETITION NO. 14 OF 2017

SAMSON CHEROP (Suing as the patron of

BARINGO COUNTY STARLETS FC)............................................PETITIONER

-VERSUS-

NICK MWENDWA & ROBERT MUTHONI

being sued as representatives of

FOOTBALL FEDERATION OF KENYA.............................1ST RESPONDENT

PALOS FC.................................................................................2ND RESPONDENT

BULEMA FC............................................................................3RD RESPONDENT

DECISION

Hearing: 3rd October, 2017

Panel:John M Ohaga - Chairman

Mary N Kimani - Member

Peter Ochieng’ - Member

Appearances:Mr. Samson Cherop as Petitioner.

Ms. Patricia May Mitei, Mr. Ken Ochieng’ and Mr. Frank Ogola for the Respondents

The Parties

1. The Petitioner is the Patron of Baringo County Starlets FC and brings this petition on behalf of the club.

2. The 1st Respondent is the governing body of football in Kenya.

3. The 2nd Respondent is a football team which was promoted to Football Kenya Federation (hereinafter referred to as ‘FKF”) Women Premier League 2017.

4. The 3rd Respondent is also a football team which was promoted to FKF Women Premier League 2017.

The Petitioner’s Case

5. The proceedings were commenced by the Petitioner by a Notice of Motion application together with a Petition dated 11th May, 2017 and filed on the same day. Both were supported by affidavits sworn by the petitioner in person.

6. In sum, the Petitioner prayed for orders as follows:

i. That the application be certified as urgent and that it be heard exparte in the first instance;

ii. That the matter be fast tracked and heard within the month of May;

iii. That the Tribunal do issue an interim injunction restraining the 1st Respondent from proceeding with the individual matches affecting Baringo County Starlets FC (hereinafter referred to as ‘Baringo Starlets’) in FKF Women Division one as well as FKF Women Premier League matches affecting individually the 2nd and 3rd Respondents pending the hearing and determination of the application;

iv. That the Tribunal do issue and order reinstating Baringo Starlets to FKF Women Premier League;

v. That the Tribunal further issues and order on the validity of the 2nd and 3rd Respondent promotion in the FKF Women Premier League and lastly that the Respondents provide for the costs of the application.

The 1st Respondent’s Case

7. The Petitioner’s Petition was replied to by Mr. Frank Ogola vide his Replying Affidavit dated 9th June 2017 and filed on 15th June 2017. He averred that he is the Competitions Manager of FKF, that he was conversant with the matters in question and is duly authorised by the Respondents to swear the Affidavit.

8. He argued that as evidenced by the League Standings at page 13 of the said Report BARINGO COUNTY STARLETS FC finished last in the said league with one (1) point. Further, that as also evidenced by the notes on the 2016 FKF Women Premier League Zone B contained at page 11 and 12 of the said Report and by invoking the provisions of Rule 2. 4 of the Rules of Kenyan Football BARINGO COUNTY STARLETS FC, were also suspended and relegated from the league having failed to honour three (3) matches against Vihiga Queens, Oserian Ladies and Vihiga Leads.

9. He also argued that if at all BARINGO COUNTY STARLETS FC were aggrieved by the decision to suspend and/or relegate them, they ought to have lodged an Appeal against the said decision to FKF National League and Competitions Committee (hereinafter referred to as ‘The Committee’) and further to FKF Appeals Committee as provided for by Rule 8 of the Rules of Kenyan Football and the FKF Constitution. In the same wavelength, he argued that parties hereto have not agreed to refer this dispute to this Honourable Tribunal neither has the FKF subscribed to its jurisdiction thus this Tribunal lacks jurisdiction to here this matter.

10. In addition, he argued that the Petitioner has not exhausted all the internal dispute resolution mechanisms provided by the FKF Constitution, that this Petition is ill advised and abuse to this judicial process and that in view of the foregoing this Petition and the Petitioner's Application dated 11/05/2017 ought to be dismissed with costs.

11. Thereafter, the Tribunal dispensed with the Preliminary Objection raised by the Respondent by dismissing it and ordering that the petition proceeds to the full hearing, which events have led to the present decision.

Hearing of the Petition

12. Mr Cherop argued the case for the Petitioner at the hearing. There was, however, no representation from the Respondents’ Counsel. The Tribunal therefore proceeded to hear the Petitioner’s argument.

13. Mr Cherop for the Petitioner argued that Ms Baringo County Starlets FC was relegated discriminatively by Football Kenya Federation as indicated by the replying affidavit and supporting documents. Mombasa Olympic FC missed three matches but was never relegated. Further, that the petitioner was in order to protest the relegation of Ms Baringo County Starlets FC to Football Kenya Federation National Leagues and Competitions Committee. Football Kenya Federation National Leagues and Competitions Committee is supposed to handle all complains from the leagues without favor. The said committee is supposed to listen to all cases and send responses so that the affected parties can have informed decisions.

14. He submitted that Football Kenya Federation National Leagues and Competitions Committee do listen to complains/appeals/protests without charging a fee as exemplified by a protest from Vihiga Queens FC. He maintained that Football Kenya Federation moved with speed after the complaint was raised and suspended the results of the match between Oserian Ladies and Eldoret Falcons. That Football Kenya Federation refused to acknowledge the Petitioner’s letters complaining at the manner Promotion and Relegation issues were handled. Furthermore, the General Secretary/Chief Executive Officer of Football Kenya Federation instead of responding to their issues preferred to pronounce the same via the media.

15. He claimed that Football Kenya Federation is biased and the petitioner will not get a fair hearing since some decisions were made in a meeting chaired by Football Kenya Federation President and assisted by the Deputy President.

16. At the hearing, Mr Cherop sought to rely on his Affidavit in support of the Petition. He argued that there was no division 1 and that the top division was Kenya Women Premier League Zone A and Zone B. He referred the Tribunal to Exhibit BCS-004 being the letter purporting to relegate the Petitioner, but he claimed that it should have come from the National League Committee.

17. He referred the Tribunal to Page 12 of the Technical Report where under Match No. 42 they were relegated and argued in response that they were able to travel to the venue of the game in good time due to reasons beyond their control.

18. He maintained that there was discrimination against the Petitioners, that the Technical report should have been shared with them and that they were relegated contrary to the rules of Kenyan Football.

19. He also challenged the promotion of Palos FC and Bulema FC as he claimed that they were against sporting merit and was suspect given the timelines within which they were promoted. He pointed out that Frank Ogola in his replying Affidavit does not mention the promotion of the said Bulema and Palos and as such it should be instructive that the Respondent is biased.

20. He concluded that it was the passion for football that drove the Petitioners to push on with the sport. This is in spite of the frustrations which come along the way, in the case being the alleged unlawful relegation and discrimination.

Discussion

21. We have considered the Petition and the Counsels’ oral and written arguments and we observe as follows.

22. We consider three primary issues upon which the Petition turns. These three issues are:

i. Whether the Tribunal has the jurisdiction to determine this Petition;

ii. Whether the Petitioner should be reinstated to FKF Women Premier League; and

iii. Whether the promotion of the 2nd and 3rd Respondents was valid.

Reasoning

a) The Tribunal’s Jurisdiction

23. We will first dispense with this issue as it is central to the Petition before we consider the other issues. This question was raised by the 1st Respondent vide the Preliminary Objection canvassed in paragraph 8 & 9 of the Affidavit of Frank Ogola dated 9th June 2017.

24. On 29th August 2017, we delivered our Ruling on this Preliminary Objection where we disallowed the Objection. In the Ruling we cited the fact that to make a determination as to whether the Petitioners have exhausted all internal dispute resolution mechanisms would force the Tribunal to make a decision on a question where the facts are contested, and which could only be determined by an examination of the facts. Such an exercise goes against the jurisprudence of preliminary objections in Kenya.

25. At this juncture, however, we may very well consider the facts and evidence to determine this issue.

26. We are guided by Rule 8 of the Rules of Kenyan Football(hereinafter referred to as ‘The Rules’). Rule 8. 1 on Competent Authorities is particularly instructive as to which authorities appeals should be referred to. It provides as follows:

8. 1 Competent Authorities

Protests or appeals by members registered in a national league or competition must be dealt with by the National Leagues and Competitions Committee. Protests or appeals by members registered in a Branch league or competition must be dealt with by the Branch Leagues and Competitions Committee.

27. In the same wavelength, Rule 8. 2 is enlightening as to the grounds and basis to be adduced for the appeals.

8. 2 Basis for Appeals

An appeal must state the full reasons for the appeal and specify the grounds and rules on which it is based. An appeal will be adjudicated only on the grounds or rules specified…

An appeal must be based on one or more of the following grounds:

(i) one or more rules other than the Laws of the Game were seriously violated during or immediately before or after a match;

(ii) a committee or other relevant authority made a decision which was not justified by the facts of the case;

(iii) a committee or other relevant authority decided on an inappropriate penalty or compensation;or

(iv) a committee or other relevant authority acted contrary to the rules or constitution.

28. With this understanding, the determination as to whether there was a valid appeal by the Petitioners in the first instance to satisfy the exhaustion of internal dispute resolution mechanisms is a simple one.

29. First, we must determine the less contentious question as to whether the letters sent by the Petitioners to the 1st Respondent, and which the Petitioners argues were the Appeals met the threshold laid in Rule 8. 2. Second, in the event that the letters meet that threshold, we have to determine whether the appeals were referred to the competent authority and whether the authority played its role in the appeal.

30. On the first question, we make a close read-through of the letters by the Petitioner to the 1st Respondent dated 19th March 2017, 31st March 2017 and 10th April 2017. Such perusal establishes that indeed the Petitioner referred an appeal to the 1st Respondent. We find that the appeals met the criteria under Rule 8. 2 in that the letters, as required under the said rules, stated one or more rules other than the Laws of the Game were seriously violated during or immediately before or after a match; the 1st Respondent made a decision which was not justified by the facts of the case; and it decided on an inappropriate penalty or compensation.

31. On this basis, we find that it met the criteria of the basis of an appeal under Rule 8. 2.

32. On the question as to whether the appeals were referred to the competent authority, we find that indeed the appeals were referred to the Committee who was the proper authority to deal with the appeal. The letters were addressed to the Committee, and no objection has been raised by the Respondents at any time to refute the same.

33. Rule 8. 1 requires that protests or appeals by members registered in a Branch league or competition must be dealt with by the Branch Leagues and Competitions Committee. We emphasize on the legal requirement that the protests or appeals must be dealt with by the authorities. This, we find, compels the authority to deal with the protests or appeals and leaves no discretion to act in any other way. Contrary to this obligation, however, the Committee upon receiving the appeals did not deal with the appeal as they should by law and as they have in practice.

34. We then consider whether, in the circumstances, the Petitioner may approach this Tribunal to appeal the decision or indecision by the Committee. We are cognizant that we derive our jurisdiction from Section 58 of the Sports Act. The Section provides verbatim as follows:

58. Jurisdiction of the Tribunal

The Tribunal shall determine—

(a) appeals against decisions made by national sports organizations or umbrella national sports organizations, whose rules specifically allow for appeals to be made to the Tribunal in relation to that issue including

(i) appeals against disciplinary decisions;

(ii) appeals against not being selected for a Kenyan team or squad;

(b) other sports-related disputes that all parties to the dispute agree to refer to the Tribunal and that the Tribunal agrees to hear; and

(c) appeals from decisions of the Registrar under this Act.

35. A clear reading of Section 58 (a) dictates that we may determine appeals against decisions made by various organizations whose rules specifically allow for appeals to be made to the Tribunal in relation to the issue. We therefore must consider whether the Rules of Kenyan Football specifically provide for appeals to this Tribunal from decisions by the Committee.

36. Rule 8. 4 B and C dictates circumstances where appeals may be referred to the Tribunal. Specifically, it provides as follows:

(b) Committee Decisions:

Members have the right to appeal the decision of the committee on their case. Members in a national league or competition can appeal to the National Independent Disciplinary and Appeals Committee (IDAC). Members in a Branch league or competition can appeal to the Branch Independent Disciplinary and Appeals Committee (IDAC). Decisions of a Branch IDAC can be appealed to the National IDAC. All appeals must be made in writing. The appeal and Kshs 100,000 fee must be received by the FKF within 48 hours from the date the member received the official letter informing them of the decision of the committee. The appeal must be considered at the next meeting of the National or Branch IDAC.

(c) Subsequent Decisions:

A member can appeal the decision of the National IDAC on their case to the Sports Tribunal. A member can then appeal the decision by the Sports Tribunal on their case to the Ministry of Culture and Social Services. If still not satisfied with the decision, the member can appeal to the FKF to create an independent Arbitration Panel. All appeals must be made in writing and copied to the FKF Secretary General. The appeal and fee must be received by the competent authority within 48 hours from the date the member received the official letter informing them of the decision.

37. We note that in the first instance, members in a national league or competition, in this case including the Petitioners, can appeal to the National Independent Disciplinary and Appeals Committee (IDAC). In the second instance, a member can appeal the decision of the National IDAC on their case to the Sports Tribunal.

38. It goes without saying, therefore that no appeal may be referred to this Tribunal without first being determined by IDAC.

39. We however contradistinguish the present reference as a Petition opposed to an Appeal as contemplated under Rule 8 of the Rules. Further, we are acquainted to Section 59 of the Sports Act dictates the powers of the Tribunal as follows:

59. Powers of the Tribunal

The Tribunal may, in determining disputes apply alternative dispute resolution methods for sports disputes and provide expertise and assistance regarding alternative dispute resolution to the parties to a dispute.

40. On this basis, we find that we have the jurisdiction and power to deal with the present Petition, which would be different had the present reference been an Appeal. Noteworthy, the dictates and jurisprudence of substantive justice demands that we determine the appeal.

b) Reinstatement or otherwise of the Petitioner

41. To determine this, we derive inspiration and guidance from the provisions of the Rules in as far as the procedure for relegation is concerned.

42. We particularly find that Rules 2. 4 and 2. 6 on Failure to Play Matches and Promotion and Relegation respectively are informative. They provide as follows:

2. 4 Failure to Play Matches

A club which fails to honor three league matches in the same season without providing written explanations acceptable to the committee will be suspended for the rest of the season, will be relegated to a lower league for the next season and may face other disciplinary action.

2. 6 Promotion and Relegation

Before the start of each season the committee must decide and announce the criteria to be used and the number of clubs to be promoted and relegated at the end of that season.

43. As to the consequence of Rule 2. 4 on Failure to Play Matches, the Petitioner indeed contended that Baringo Starlets FC did not play three matches. Vide a Notice of Motion application under a Certificate of Urgency dated 11th May 2017, the Petitioner prayed, inter alia, that this Tribunal do issue an interim injunction restraining the 1st Respondent from proceeding with the individual matches affecting the Petitioners.

44. In response to the application, the Tribunal granted directions dated 16th May 2017 which gave other orders in exclusion of the prayer above. There was no legal basis, therefore for the Petitioner to fail to honour the three matches. As such, any submissions by the Petitioner that their failure to honour the match was as a result of the Tribunal’s order is defeated.

45. Of course, we appreciate that at the hearing Counsel for the Petitioner submitted to the Tribunal that their failure to take part in the matches were for reasons beyond their control. However, the Rules are explicit that the explanations for failure to take part in the match should be written and addressed to the Committee and be to their satisfaction. We cannot overstep the jurisdiction of the Committee to decide on the satisfaction of the explanations therefore. The Petitioner was to address the explanation to the Committee for it to make a determination. As we have highlighted in the foregoing paragraphs, the Petitioner has avenues of appeal against the decisions of the Committee in the event that it is dissatisfied.

46. As to the consequence of Rule 2. 6 on Promotion and Relegation, we note that before the start of each season the committee must decide and announce the criteria to be used and the number of clubs to be promoted and relegated at the end of that season. Again, we note that this is an obligation incumbent upon the Committee by the use of the term must thereby leaving no discretion to the committee. Noteworthy, more than just deciding, the Committee must announce the criteria.

47. In this case, the Committee neither decided the criteria for relegation nor announced the same. No body, let alone the 1st Respondent, therefore, could purport to relegate any club without such criteria being decided and announced.

48. Noteworthy, the purported relegation of the Petitioner was made by the 1st Respondent vide a letter dated 6th March 2017. This is in contravention with the dictates of the Rules since such relegation may only be made by the Committee.

49. On this issue, therefore, our conclusion is that while the reasons for failure to play the matches should be referred to the Committee, the purported relegation was unlawful and not in accordance with the laid down procedure declared.

c) Validity or otherwise of the promotion of the 2nd and 3rd Respondents

50. On this issue, our reasoning is in tandem with our reasoning with the second issue.

51. We reason that similarly, as to the consequence of Rule 2. 6 on Promotion and Relegation, before the start of each season the committee must decide and announce the criteria to be used and the number of clubs to be promoted at the end of that season.

52. As we have highlighted, in this case, the Committee neither decided the criteria for promotion nor announced the same. Neither the Committee, nor the 1st Respondent, therefore, could purport to promote the 2nd and 3rd Respondents without such criteria being decided and announced.

Conclusion

53. In conclusion, the Tribunal would like to reaffirm the spirit of the Rules. No doubt, fairplay on and off the field is the top priority in Kenyan football. The Tribunal emphasizes that all games must and will continue to be decided by what happens on the field. Who wins or loses is decided on the field by several factors. The results of games are decided by the team who scores more goals than their opponents, by players who decide to ignore the rules, by team officials who decide to field ineligible players and by team officials and players who decide to abandon a match.

54. Those decisions are all made on the field of play. When such decisions violate the rules, the Tribunal upon receiving such a reference will verify the facts and apply the relevant rules firmly and fairly in order to preserve the integrity of the game and protect the majority of teams, officials and players who do respect the rules. In sum, all games in Kenyan foot-ball must be won fairly on the field of play.

55. In view of the foregoing, the following orders and declarations commend themselves to the Tribunal:

i.The Petitioners to be and is hereby reinstated to the FKF Women Premier League;

ii.The promotion of the 2nd and 3rd Respondent to the FKF Women Premier League was invalid.

iii.The 1st Respondent to bear the costs to the Petitioner.

56. The Tribunal thanks all the parties for their extremely helpful contribution and the cordial manner in which they conducted themselves. Further the Tribunal applauds all parties for the passion for the game of football in Kenya, which sometimes comes at a price.

Dated and delivered at Nairobi this 24th day of October, 2017.

Signed:

John M Ohaga, FCIArb

Chairperson, Sports Disputes Tribunal

Signed: _______________________________

Mary N Kimani, Member

Signed: _______________________________

Peter Ochieng’ , Member