FKF crisis: Voters register and legal status of the counties under scrutiny

The two petitions are challenging the authority of the FKF Electoral Board to make changes to the Electoral Code and the legality of the regulations issued by the Kentice Tikolo-led board on August 11. They also want the voters register cleaned up and the criterion of how the delegates are to be determined set out.

List of clubs

Nyakundi’s petition has drawn the Sports Registrar as an interested party, arguing that the legal status of the counties and the voting clubs can only be ascertained by Rose Wasike for the reason that the Registrar is the custodian of the register of sports organizations in the country.

“The purported voters register has been prepared in total disregard of the requirements of the Sports Act 2013 as to the legal status of the football clubs, which status is supposed to be in the custody of the Interested Party herein,” argues Nyakundi in his application.

“The Respondents, in publishing the register, have not demonstrated that the list of clubs is derived from the register being kept by the Interested Party (Sports Registrar) herein in accordance with Articles 46 and 47 of the Sports Act 2013.”

Further, Nyakundi wants Fifa stopped from interfering with the FKF elections, saying the directives by Mosengo-Omba amount to a violation of the Fifa Statutes.

“The letter signed by the 5th Respondent (Mosengo-Omba) dated August 5, 2020, to the effect that the Code found to be in violation of the Constitution of Kenya 2010 will be applied to the 3rd Respondent’s (FKF) elections gives a misguided assumption that the 4th Respondent (Fifa) possesses extraordinary power to control the affairs of the 3rd Respondent (FKF), including authority to decide on the electoral processes and even set aside the applicability of the provisions of the very legislation that incorporates the 3rd Respondent (FKF) within the territory of its jurisdiction,” he argues in his submissions.

FKF’s preliminary objection

FKF and its Electoral Board preliminary objections are on three main limbs – that Nyakundi lacks the locus standi to bring the petition before the SDT for him not having legitimate or any other interest in the FKF elections or its outcome, the matter being res judicata (raising issues that were heard and determined in SDT 3 (consolidated with SDT 5 of 2020).

FKF also maintains that the tribunal lacks jurisdiction to hear the petition as framed, especially where FIFA is listed as a Respondent. They further argue that the court is not bestowed with first-instance jurisdiction on FKF election disputes.

“From the foregoing, Mr. Nyakundi has not established a sufficient interest in the intended FKF elections to allow the application herein and the same renders him a mere busy-body or a meddlesome interloper, even where the rules of locus standi have been relaxed to accommodate any person,” argue FKF in their written submissions.

“We submit that he has no interest in matters football elections as interest in football matters are limited to registered members of FKF or members of FKF within the definition in Article 11(1) of the FKF Constitution, current or former officials or to persons who have declared aspirations to run for FKF elective post at whatever level.”

On jurisdiction over matters involving FIFA, they argue that: “The SDT also lacks jurisdiction to hear matters relating to FIFA or more particularly the SDT cannot hear a case where a party has sued FIFA. Neither Section 58 nor 59 of the Sports Act gives the SDT the jurisdiction to hear matters against FIFA.

“It is trite that a Court’s Jurisdiction flows from either the Constitution or Legislation or both. Therefore, a Court cannot arrogate to itself Jurisdiction exceeding that which is conferred upon it by Law. Any assumption of jurisdiction over FIFA will be unlawful and illegal.”

Strict points of law

In his response to the objections, Nyakundi maintains the Respondents have fallen short of the required threshold that a Preliminary Objection must strictly be on points of law.

“The purported preliminary objection(s) is (are) blurred with factual details liable to be contested and, in any event, to be proved through the process of evidence. The 3rd Respondents’ (FKF) assertions bear factual aspects calling for proof; which therefore necessitates the need to adduce evidence for authentication.”

What do petitioners want?

A declaration to stop the FKF elections for being in violation of:

•             Articles 10, 38 and 81 of the Constitution of Kenya 2010

•             The Sports Act 2013

•             The FKF Constitution 2017

•             The Sports Registrar rules and regulations

•             FIFA Statutes

•             FIFA Standard Electoral Code

•             SDT ruling of 17th March 2020