The Sports Disputes Tribunal (SDT) has thrown out preliminary objections by the Football Kenya Federation (FKF) and eight Kenyan Premier League (KPL) clubs in the case by Chemelil Sugar and KPL objecting the decision to end the top-flight season.
Tribunal chair John Ohaga on Tuesday struck out all objections raised by the Federation and the eight clubs with costs, saying the case will proceed to hearing.
Ohaga has now set the hearing date for the 18th of next month and further extended the Stay Orders suspending the decision to end the season.
KPL had argued that the Federation had overstepped its mandate in ending the season, as the agreement signed between the two parties in 2015 allowed the league managers exclusivity in its decisions.
FKF announced an end to the football calendar, citing a Force Majeure rule in its league statutes due to the COVID-19 pandemic. However, league managers KPL and Chemelil Sugar who were relegated headed to the Tribunal to object the decision.
The Tribunal was set to make a ruling on the Preliminary Objections on June 29, but halted the same after a case filed at the Mombasa High Court issued a Conservatory Order against the Tribunal, one that was later lifted.
Eight KPL clubs; namely Western Stima, Tusker FC, Ulinzi Stars, Kariobangi Sharks, Posta Rangers, KCB and Kisumu All Stars were enjoined as interested parties, leaning on the Federation’s side to support the decision to end the season.
-Objections thrown out
However, their objections on the case going into full hearing were thrown out.
Among the objections that FKF and its interested parties argued infront of the Tribunal on May 26 include;
-The Petition contravenes the provisions of Articles 14 (1)(a), 48(3) and 69(1) of the FKF Constitution and Rule 10.3.5 of the FKF Rules and Regulations Governing Kenyan Football (2019) stipulating that all disputes affecting leagues and members of FKF fall within the jurisdiction of FKF’s constitutional internal dispute resolution mechanisms and structures;
-The 1st and 2nd Petitioner (KPL and Chemelil Sugar) lack the locus standi to institute the Petition before the Tribunal and have no authority to maintain the Petition;
-The Petition is res judicata (a similar matter had already been adjudicated before and may not be pursued further by the same parties;
-The Petition is incompetent, frivolous and vexatious.
However, in Ohaga’s ruling, he has thrown out all the objections.
On matter of eligibility, he says the Tribunal is qualified to listen and determine the matter as it is a sports issue. Ohaga, referring to Article 59(3) of the FIFA Statutes also argued that the provision to take arbitration to an independent body is provided for.
“This Tribunal is sui generis in its own right essentially handling the arbitration of sports disputes as is noted in the heading at Part VII of the Sports Act. Furthermore, section 59 of the Sports Act bestows upon the Tribunal the power to apply alternative dispute resolution methods in sports disputes,” Ohaga said in his ruling.
-Internal mechanisms
Ohaga also said he supported the idea of having the issue internally resolved through FKF’s judicial bodies but went on to note that referring the matter to an internal body within the FKF would be tantamount to breach of the principles of natural justice.
On whether Chemelil have Locus Standi to bring a suit in front of the Tribunal, Ohaga ruled to the affirmative as the club is a member and shareholder of the KPL and has a right to institute legal proceedings at the Tribunal.
At the same time, Ohaga said that FKF and the eight clubs’ lawyers failed to prove that CEO Jack Oguda needed express permission from the KPL management board before instituting or representing it in any legal case.
On the issue of whether Chemelil’s lawyer Amos Otieno was qualified to represent his clients on the basis of having a valid practicing certificate, the Tribunal found out that indeed Otieno received his certificate way after he had filed the case and was hence not qualified to practice.
But, Ohaga in his ruling stated that lack of a practicing certificate does not negate the merits of the case.
Meanwhile, Ohaga ruled that seasoned journalist Milton Nyakundi who had said he was representing Kakamega Homeboyz as interested parties did not have capacity to do so as he is not a practicing lawyer.
“This Tribunal finds that the Application for joinder of Kakamega Homeboys FC as an Interested Party stands defective and is deemed void for all purposes,” Ohaga said in his ruling.
-Petition going into full hearing
With the case now going into full hearing, Chemelil and KPL will have to serve a Supplementary Affidavit by Thursday with FKF and the interested parties serving their responses within seven days.
Both parties are also required to serve written submissions by August 17, a day to the hearing date.
