Last updated 8 months ago | By Robin Toskin
Football Kenya Federation (FKF) president Nick Mwendwa has suffered a major setback after the Sports Dispute Tribunal cancelled presidential polls and annulled the last month’s branch elections.
The tribunal has now ordered the federation to engage its stakeholders and ensure public participation in the formulation of the Electoral Code of Football Kenya Federation 2019.
A three-member panel led by chairman John Ohaga, Njeri Onyango and Mary Kimani ruled that the electoral board was improperly constituted due to ineligibility of its chairman Edwin Wamukoya and Ms Elynah Sifuna-Shiveka.
Further orders include the maintenance of the status quo at the FKF national executive committee until fresh elections are held in accordance with all laws, regulations and statutes.
"We find that the election process has been marred by irregularities and the outcome of the process are therefore null and void," ruled the tribunal in a verdict contained on a 27-page document.
The original petition was filed by Jared Nyauma Ondieki, chairman, Nyamira sub-branch, and a further application jointly filed by Sam Nyamweya, Lordvick Aduda, Steve Mburu, Alex ole Magelo, Angeline Elijah and Moses Akaranga - all aspirants for national office in the elections.
During the hearing held a fortnight ago, the parties had made oral submissions, with FKF lawyers having a torrid time responding to the issues raised by the applicants.
"The applicants said the Electoral Code was adopted without the required stakeholders’ engagement and that members of the board were chosen without involving them," read part of the ruling.
"Some members of the board are ineligible due to conflict of interest and mandatory prohibitions under the FIFA Electoral Code and the electoral code."
The tribunal ruled, in response to FKF objections to jurisdiction, locus standi for the applicants as well as application of the principles of public participation; that it did have both appellate and first-instance jurisdiction to hear such matters as was before it.
"The argument by the respondents that the board has the first-instance jurisdiction to hear these appeals would expose the parties to an unfair judicial forum as the legality of the Constitution of the board is in itself a question before the tribunal.”
"The tribunal recognises that the FKF is itself a party in both appeals and fully abides by the principles of natural justice that requires that a party cannot be a judge in its own case. Were the disputes to be referred to any internal organ within the FKF for resolution, it would amount to unfair resolution as there would be reasonable ground to presume bias on the part of FKF."
On the question of eligibility of Shiveka and Wamukoya, the tribunal ruled that the duo were ineligible by virtue of their position as a member of the SDT and having served in the electoral board in the past.
On public participation in the formulation of the electoral code and appointment of its members, the tribunal found "there was no evidence to show how branches facilitated the dissemination of the code downwards and views on the same."
"The respondent has failed to demonstrate how public participation of its stakeholders was invited, facilitated and conducted and the tribunal is impelled to the conclusion that there was no sufficient public participation.