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Sports Tribunal has jurisdiction over FKF, High Court of Kenya rules

SPORTS By Robin Toskin | July 9th 2020
Football Kenya Federation (FKF) president Nick Mwendwa (in blue) follows proceedings of a court case where the Sports Dispute Tribunal is sitting to determine a conflict between Football Kenya Federation and Sports Registrar at Milimani Law courts on February 25, 2020. Photo/Stafford Ondego, [Standard]

A High Court in Mombasa has ruled that the Sports Disputes Tribunal (SDT) has jurisdiction to determine sports matters and cases against beleaguered Football Kenya Federation (FKF).

In the ruling, Judge Thande Mugure, sitting at High Court Mombasa, also vacated stay orders that had temporarily stopped proceedings against FKF at the Sports Tribunal stopped all proceedings.

The same court had on June 16 temporarily stopped all proceedings against FKF at the Sports Tribunal following a petition by Gabriel Mghendi (FKF Coast National Executive Committee) and a Ms Lilian Nadundu.

In the petition, which has now been transferred to Nairobi, the two listed the Chief Justice of Kenya, the Chief Registrar of the Judiciary and the Attorney General as the first, second and third respondents.

Curiously, the petitioners listed FKF and the Cabinet Secretary of Sports, Culture and Heritage as interested parties.

The petitioners argue that the SDT had overstepped its jurisdiction as established in the constitution, as “a subordinate court” to designate itself as an independent arbitration tribunal.

Football Kenya Football (FKF) president Nick Mwendwa (2ND L) and his team at Safari Park hotel during the video conference call on the ruling of a case challenging several aspects of the electoral code of the Football Kenya Federation Electoral board from the Nairobi law courts on March 17, 2020. Photo[Stafford Ondego, Standard]

However, Milton Nyakundi appearing as an interested party submitted that “the Interim orders issued by the court were “obtained through mischief, misrepresentation, concealment and/ or suppression of material facts with the intention to subvert the cause of justice by frustrating proceedings of matters against Football Kenya Federation at the Sports Disputes Tribunal.”

The ruling now paves the way for SDT to resume hearing of a case the Kenyan Premier League claims that by purporting to terminate the competition while citing the COVID-19 pandemic, FKF had breached a ruling dated January 10, 2017.

FKF entered a preliminary objection on June 12 and SDT was due to rule on the application only for its process to be halted by Mghendi and Nadundu petition on June 16.

The onslaught against Sports Tribunal in Mombasa is one of two other similar cases brought against it; the other filed in the High Court sitting in Murang’a and another in Kericho.

In Kericho, the petitioners Alfred Kirui, Kefa Ondati Nyamanya and Bernard Odhiambo Wanguche have filed a Constitutional Petition with the Attorney General, Cabinet Secretary in charge of Sports, Culture and Heritage Amb Amina Mohamed, the SDT chair John Ohaga and the Chief Justice of Kenya as respondents.

“Unlawfully enacting the Rules Governing the Practice and Procedure of the Sports Dispute Tribunal.”

The petitioners insist: “Encouraging, demanding, advocating and or in any other way promoting their use despite the said Rules not having been done in consultation with the Chief Justice of Kenya, not having been subjected to public participation, not having been approved by parliament and or  not having been gazetted in the Kenya Gazette as required by the Constitution.”

The petitioners are concerned that without bonafide Rules Governing the Practice and Procedure of the Sports Dispute Tribunal, “it is impossible to ascertain the realm of the Sports Dispute Tribunal functions hence an impediment to have checks and balances of its functions.”

They argue further that, “it is difficult challenging the excesses of Sports Dispute Tribunal when their legal parameters are unknown in the first instance.”

In Murang’a High Court, Robert Macharia has applied for a Judicial Review on the SDT ruling on March 17 which declared the term of office of the FKF to be at an end.

Among other issues, Macharia who is the chairman of Murang’a SEAL FC averred that the consequence of the ruling had created a vacancy in the national office of the FKF.

“The said decision is wrong, unlawful and without jurisdiction,” Macharia’s petition reads.

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