[2023] KEHC 26681 (KLR)

Zoo Football Club v Football Kenya Federation & 2 others; Nairobi United Football Club (Interested Party) (Constitutional Petition 15 of 2022) [2023] KEHC 26681 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26681 (KLR)

Republic of Kenya

In the High Court at Kericho

Constitutional Petition 15 of 2022

JK Sergon, J

December 14, 2023

IN THE MATTER OF: ARTICLES 1, 2, 3, 10, 20 (1), (2), (3) & (4), 21 (2), 22, 23, 24, 25 (C), 27, 47, 48, 50, 258 & 259 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF: THE FAIR ADMINISTRATIVE ACTIONS ACT NO. 4 OF 2015 AND IN THE MATTER OF: THE SPORTS ACT NO. 25 OF 2013 AND IN THE MATTER OF: THE FOOTBALL KENYA FEDERATION, 2017 AND IN THE MATTER OF: THE FOOTBALL KENYA FEDERATION RULES & REGULATIONS GOVERNING KENYAN FOOTBALL, 2019

Between

Zoo Football Club

Petitioner

and

Football Kenya Federation

1st Respondent

Football Kenya Federation Leagues and Competitions Committee

2nd Respondent

Football Kenya Federation Appeals Committee

3rd Respondent

and

Nairobi United Football Club

Interested Party

Ruling

1. The petitioner herein has moved to court by way of a notice of motion and a constitutional petition contemporaneously.

2. The petitioner filed a notice of motion dated 11th October, 2023 seeking the following reliefs;(i)Spent(ii)Spent(iii)That pending hearing and determination of this application inter-partes, conservatory orders do issue staying the decision/ruling of the Football Kenya Federation and/or Football Kenya Federation Leagues Competitions Committee of 11th August, 2023. (iv)That pending hearing and determination of this application inter-partes, conservatory orders do issue staying the direction of the Football Kenya Federation and/or Football Federation Appeals Committee of 17th August, 2023. (v)Spent(vi)That pending hearing and determination of this petition, conservatory orders do issue staying the decision/ruling of the Football Kenya Federation and/or Football Kenya Federation Leagues Competitions Committee of 11th August, 2023. (vii)That pending hearing and determination of this petition, conservatory orders do issue staying the direction of the Football Kenya Federation and/or Football Federation Appeals Committee of 17th August, 2023.

3. The notice of motion is supported by grounds on the face of it and the supporting affidavit sworn by Ken Ochieng the chairman of Zoo Football Club, the petitioner herein.

4. He avers that upon conclusion of their respective leagues, the petitioner and interested party were involved in a 2023 FKF NSL Promotion Play-Off Match on 6th August, 2023 at the RVIST Grounds, Nakuru this match was organized by the 1st and 2nd Respondent. The said match aborted in the eighty (80) minute or thereabouts due to crowd trouble allegedly occasioned by the petitioner’s supporters.

5. He avers that on 8th August, 2023 the 2nd Respondent opened and presided over a virtual investigatory meeting into the circumstances under which the said match was called off and invited the petitioner and the interested party to give their version of events.

6. He avers that the above notwithstanding and in contravention of articles 47 and 50 of the Constitution of Kenya, 2010 and sections 3,4,5,6 and 7 of the Fair Administrative Actions Act no. 4 of 2015, the 1st and 2nd Respondents on 11th August, 2023 made a decision/ruling which is the subject of the petition without according the petitioner fair administrative action and/or a fair trial as documented in paragraph 8, 9 and 10 of the supporting affidavit.

7. He avers that the being aggrieved by the foregoing, the petitioner on 12th August, 2023 lodged and served upon all the necessary parties an appeal with the 3rd Respondent as stipulated in article 67. 2 and 69. 5 of the FKF Constitution and rule 10. 3.1 of the FKF Rules and Regulations Governing Kenyan Football, 2019.

8. He further avers that in its email of 12th August, 2023 forwarding the appeal, sought directions on the hearing and determination of the appeal in view of its urgency, the 3rd Respondent in an email dated 17th August, 2023 demanded that the petitioner pays ksh 100,000/= appeal fees and an unspecified extra fee before its appeal could be received.

9. He avers that the petitioner cannot afford the appeals fee of ksh 100,000/= which is not only discriminatory but is also exorbitant and an affront to the petitioners right to access to justice as the petitioner is a self sponsoring team, hence the appeal is yet to be heard.

10. He avers that the matter is extremely urgent and requires urgent and momentous action of this court as the 2023-2024 FKF National Super League Season and 2023-2024 FKF Division One Season Fixtures have kicked off and it was therefore in the interest of justice that the application and petition is expeditiously determined.

11. The petitioner filed a constitutional petition dated 11th October, 2023 in which he set out the legal and factual background to the petition and sought the following reliefs;a.A declaration be and is hereby issued that rule 10. 3.4. 2 of the FKF Rules and Regulations Governing Kenyan Football that prescribes ksh 100, 000/= minimum appeals fee and any other extra fees to be paid within seventy-two (72) hours of the decision appealed from, it is discriminative and/or impedes the right to access justice thus unconstitutional and contravenes article 27 and/or 48 of the Constitution of Kenya hence invalid.b.A declaration be and is hereby issued that the email communication of 17th August, 2023 by the 1st and/or 3rd Respondents that required the payment of ksh 100,000/= minimum appeals fee to be paid within seventy two (72) hours of the decision or ruling of the 1st and 2nd Respondents on 11th August, 2023 as a precondition to receiving and/or otherwise dealing with the petitioners appeal lodged on 12th August, 2023 was discriminatory and impeded the petitioners right to access justice thus is unconstitutional and contraves article 27 and/or 48 of the Constitution of Kenya, 2010 hence invalidc.A declaration be and is hereby issued that the petitioner’s right to a fair hearing, as pertains the decision/ruling of the 1st and/or 2nd Respondent on 11th August, 2023, was infringed by the 1st and 2nd Respondent in contravention of article 50 of the Constitution of Kenya, 2010 and hence invalidd.A declaration be and is hereby issued that the petitioner’s right to fair administrative action, as pertains the decision/ruling of the 1st and 2nd Respondent of 11th August, 2023 was infringed in contravention of article 47 of the Constitution of Kenya, 2010 and hence invalide.A declaration be and is hereby issued that the decision/ruling of the 1st and/or 2nd Respondent of 11th August, 2023 is unconstitutional in view of declaration © and (d) above.f.An order of permanent injunction do issue restraining the Respondents by themselves or their servants and/or agents from giving effect to the 1st and/or 2nd Respondent’s decision of 11th August, 2023g.General Damagesh.Costs of this suit be awarded to the Petitioner.

12. The 2nd Respondent filed a replying affidavit in response to the petition and notice of motion dated 11th October, 2023, the replying affidavit was sworn by Doreen Nabwire.

13. She avers that the petition and the applications are frivolous, do not disclose a prima facie case with chances of success nor a reasonable cause of action in law, devoid of merit, replete with deliberate non-disclosure and suppression of material facts and is otherwise an abuse of court process.

14. She avers that the matters in the application and petition were raised and determined in Sports Dispute Tribunal Appeal no E023 of 2023 Zoo Football Club v Nairobi United Football Club and Football Kenya Federation Leaguesand Competitions Committee between the same parties before a tribunal of competent jurisdiction and/or forum and therefore the application and petition were a front, a shopping spree for favourable orders clothed as a constitutional petition. In paragraph 5-7 of the replying affidavit she set out the chronology of the proceedings before the Sports Dispute Tribunal culminating in a ruling dated 5th September, 2023 which has not been overturned by way of an appeal or review by a court of competent jurisdiction.

15. She avers that the petitioner filed the instant suit through material non-disclosure and suppression of facts with the sole intent of procuring a favourable outcome having lost its case before the Sports Dispute Tribunal, she therefore was adamant that the application, petition and proceedings were vexatious, frivolous, scandalous, res judicata and otherwise an abuse of court process.

16. She avers that the petition offends the doctrine of exhaustion of local and/or internal dispute resolution mechanism which is anchored in article 159 of the Constitution. She further avers that the petitioner is a member of the 1st Respondent bound by its constitution which provides various internal dispute resolution mechanisms which the petitioner seeks to avoid and circumvent by filing the instant constitutional petition.

17. She avers that the petition and application offend the doctrine of constitutional avoidance by turning an ordinary sports dispute to a constitutional issue and further that there is no constitutional issue to be heard and determined by this court, rather, an ordinary sports dispute that should be ventilated before the appropriate dispute resolution channels as provided for by the Football Kenya Federation Constitution and the Sports Act.

18. She avers that there was no violation of the petitioner’s constitutional rights as purported and thus no injury or real likelihood of injury, therefore, the balance of convenience tilts towards disallowing and/or striking out the application and petition and further that the petitioner failed to satisfy the legal and evidential threshold for the reliefs sought.

19. She reiterated that she was swearing the affidavit in opposition to the petition and application and therefore urged the court to dismiss/strike out the same with costs.

20. I take cognisance of the fact that the 1st and 3rd Respondents and the Interested Party have not entered appearance nor filed any response to the petition and the petitioner’s application dated 11th October, 2023.

21. This court directed the parties to file written submissions. The petitioner complied and filed his written submissions whereas the 2nd respondent who had entered appearance and filed a replying affidavit did not file any submissions.

22. The petitioner maintains that article 23 (1) of the Constitution empower courts to uphold and enforce the Bill or Rights, under which the instant application and petition were lodged and further that article 165 of the Constitution clothes the High Court with the jurisdiction to determine applications for redress of a denial, violation or infringement of, or threat to a right or fundamental freedom in the Bill of Rights. The applicant therefore maintained that this was the only court vested with the jurisdiction to hear and determine the questions raised in the instant petition and application.

23. The petitioner also argued that it did not make an application for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights in the Sports Dispute Tribunal, these questions were never directly or substantially raised before the Sports Dispute Tribunal and therefore the issues raised in the instant petition were not res judicata as per the provisions of section 7 of the Civil Procedure Act, CAP 21, Laws of Kenya. The petitioner argued that they had demonstrated a prima facie case that their rights were violated and they were therefore deserving of conservatory orders.

24. The petitioner contended that the appeals fee of ksh 100,000/= was exorbitant and therefore the cost of exploring the internal dispute resolution mechanism was exploitative and prohibitively high for the petitioner and in contravention of article 48 of the Constitution on the right of access to justice and article 50 of the Constitution on the right to fair hearing. The petitioner relied on the case of Fleur Investment Limited v Commissioner of Domestic Taxes & Another cited in Deepak Lalchand Nichana v Kenya Revenue Authority (2021) eKLR in which the court stated as follows; “The court cannot, being a bastion of justice, sit back and watch such institutions ride roughshod on the rights of citizens who seek refuge under the constitution and other legislations for protection. The court is perfectly in order to intervene where there is clear abuse of discretion by such bodies, where arbitrariness, malice, capriciousness and disrespect for the rules of natural justice are manifest.”

25. I have considered the pleadings and the submissions herein and the sole issue for this court’s determination is whether the instant petition has met the constitutional threshold. I find that the answer is in the negative, the petitioner is a member of the Football Kenya Federation and hence is bound by its constitution which provides for various internal dispute resolution mechanisms and processes, clause 10. 3.5 of the Football Kenya Federation, Regulations to which the petitioner is bound, provides that members have the right to appeal against any decision made by the Football Kenya Federation and/or any of its national committees and prescribes a fee of ksh 100,000/= which the petitioner seeks to avoid and circumvent by filing the instant constitutional petition.

26. In the case of Japheth Ododa Origa v Vice Chancellor University of Nairobi & 2 others [2018] eKLR Mwita J. held that the petition therein failed to meet the threshold of a constitutional petition and proceeded to dismiss it and observed as follows; “I must also point out that it is not every disapproval of actions or decisions of public bodies that should lead to filing constitutional petitions alleging violation of fundamental rights and freedoms. There must be a real infringement, denial of rights or threat to violation that calls for interpretation of the constitution vis a vis the rights infringed or threatened. It is not every disagreement that must find its way to the constitutional court.” I therefore find that the petitioner being a member of the said football association, he is bound to pay the requisite appeals fee, in order to have his appeal heard and determined.

27. In the end, I find that the notice instant of motion and the petition lacks merit and are hereby dismissed with costs to the 1st Respondent.

DELIVERED, SIGNED AND DATED AT KERICHO THIS 14TH DAY OF DECEMBER 2023. J.K. SERGONJUDGE