Kayole Starlet Fc v Fkf Transition Committee & another [2022] KESDT 715 (KLR) | Fair Administrative Action | Esheria

Kayole Starlet Fc v Fkf Transition Committee & another [2022] KESDT 715 (KLR)

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Kayole Starlet Fc v Fkf Transition Committee & another (Tribunal Case E025 of 2022) [2022] KESDT 715 (KLR) (27 September 2022) (Decision)

Neutral citation: [2022] KESDT 715 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Tribunal Case E025 of 2022

J Njeri Onyango, Chair, E. G. Kiplagat & Gabriel Ouko, Members

September 27, 2022

Between

Kayole Starlet Fc

Petitioner

and

Fkf Transition Committee

1st Respondent

Kisumu All Starlets Fc

2nd Respondent

Decision

A. Introduction The Parties 1. The Petitioner is a Women’s Football Club participating in the FKF Women Premier League and domiciled in Nairobi County within the Republic of Kenya.

2. The 1st Respondent is the FKF Transition Committee, appointed by the Cabinet Secretary in charge of Sports pursuant to Section 54 (2) of the Sports Act.

3. The 2nd Respondent is a Women’s Football Club participating in the FKF Women Premier League.

B. Pleadings & Preliminaries 4. The matter was commenced vide a Petition dated June 28, 2022.

5. Simultaneously with the Petition an application was filed by way of Notice of Motion of the same date which was brought under a Certificate of Urgency and a Supporting Affidavit (‘the Application’).

6. The Application sought various declarations and conservatory orders, the main purpose of which was to urge the Tribunal to suspend the decision by the 1st Respondent which awarded three (3) points to the 2nd Respondent through a letter dated June 22, 2022.

7. Upon considering the Application, the Tribunal duly certified it as urgent and issued the following directions dated July 4, 2022:-i.That the Application is hereby certified as urgent,ii.That the Application be served upon the Respondents immediatelyiii.That the matter be listed for Mention for directions on Tuesday July 5, 2022 at 2. 30pm via Microsoft Teams

8. The 2nd Respondent through their Advocate on record filed a Notice of Preliminary Objection on July 23, 2022:-a.The suit is merely speculative, generalized, hypothetical and has not been pleaded with specificity and hence it offends the principles of pleading with precisionb.That the suit and the application are founded on generalized assertions, misinterpretation, misapplication and narrow interpretation and application of FKF Constitution, IFAB Laws of the Game and Rules and Regulations Governing Kenyan Footballc.That the entire suit is incompetent and premature to the extent that the Applicants have failed to exhaust the Internal Dispute Resolution dispute processes provided by the FKF constitution and the Rules and Regulations Governing Kenyan Football. These provisions provide adequately for the hearing and determination of any appeals arising out of disputes arising from any decisions by its standing Committees. Accordingly, this Honorable Tribunal should defer to those processes and decline jurisdiction to hear the suit until the Applicants exhaust them.d.That this Honourable Tribunal otherwise has no jurisdiction to hear and determine the suit as the Respondents have not submitted to its Jurisdiction by consent and neither have, they submitted to and/or alternative dispute resolution. Accordingly, and in accordance with the statutory remit of its jurisdiction, the Tribunal is wrongly seized of the matter and the same should be struck out in limine.e.That the same subject matter with the same parties herein is extensively being canvassed in the Independent Disciplinary and Appeals Committee and thus premature and incompetentf.That the entire suit is otherwise an abuse of process and liable for dismissal.

9. The Petitioner through its CEO Mr Raymond Onyango filed a Replying Affidavit opposing the Notice of Preliminary Objection.

10. The Petitioner filed a Further Affidavit with the Tribunal on August 2, 2022 stating that the Respondents had not filed any Response to the Petitioner’s Appeal. The Petitioner further stated that they had been invited to a pre season premier league teams meeting on August 2, 2022 and their invitation was later cancelled. The Petitioner further urged the Tribunal to expedite the hearing and Judgment of the matter.

11. On August 18, 2022 the 1st Respondent through its Women’s league Chairperson Neddy Okoth filed a Replying Affidavit stating that the Relevant Respondent’s Committee made the decision Appealed against and it relied on the Rules & Regulations governing Kenyan Football Specifically Articles 3. 5.2, 3. 5.4 and 9. 1.2. 1.1. Ms Okoth further stated that the Appellant ought to have exhausted all internal mechanisms before resorting to municipal courts.

C. Substantive Claims Petitioner’s case

12. The Petitioner filed a Petition dated June 28, 2022. The Petitioner in states that on June 12, 2022 Kayole Starlet FC and Kisumu All starlet FC played their last game in the now concluded Women Premier League at Stima Club.

13. The match was however abandoned in the 80th minute as a result of pitch invasion and threats and abuses on the match officials by the 2nd Respondents members and supporters.

14. That earlier in the 60th minute the 2nd Respondent’s team manager, Beryl Oketch had been sent off for hurling insults at the match officials which decision has never been appealed or rescinded.

15. The 1st Respondent took up the matter and via a letter dated June 22, 2022 rendered a decision that the match is forfeited and the 2nd Respondent awarded 3 points as a result.

16. The Petitioners contend that the decision is devoid of any merit as it was never notified of any charges against it or invited to answer to any queries or issues as a result of the abandoned match.

17. The Petitioner subsequently wrote a protest letter dated June 24, 2022 complaining about the lack of fair hearing in addition to the 1st Respondent’s ignoring some of the Rules & Regulations Governing Kenyan Football.

18. The Petitioner avers that the 1st Respondent only considered Articles 3. 5.2 and 3. 5.4 of the Rules & Regulations Governing Kenyan Football and totally ignored Article 3. 5.6 which would have awarded the forfeiture and points to Kayole Starlet as Kisumu Starlet were the aggressors and guilty of the abandonment.

19. The match officials Report indicates that 2nd Respondent was at fault for the abandonment of the match and the 1st Respondent’s decision is not based on any analysis or merit of the Report.

20. That in the 80th minute after the 2nd Respondent’s goal, the 2nd Respondent’s fans invaded the pitch and one of them chased the Assistant Referee with a view of causing harm to him.

21. That despite the unruly fan being ejected, the assistant referee informed the referee that he had been threatened once more by the 2nd Respondent’s fans and officials and the match was abandoned due to Kisumu All starlets unruly members and officials.

22. That the Kisumu All starlets members and supporters refused to remain calm and caused the abandonment.

23. According to the Petitioners the decision to forfeit and award the points to Kisumu All Starlets was a boardroom decision not based on merit which effectively relegated the Petitioner from the Premier League.

24. The Petitioner contends that Kisumu All starlets should be punished in accordance with Article 3. 5.6 of the Rules & Regulations Governing Kenyan Football which provides that A club will forfeit a match which was abandoned because of the misconduct of their members or supporters.

25. The Petitioner further contends that the referee is not supposed to start a match if they are not satisfied with the security arrangements. The Petitioner alleges that the match was given an OK save for the Respondents’ members and supporters unruly behavior during the match. The Petitioner further alleges that Kayole Starlet FC at the pre Match meeting satisfactory proved that it had provided security for the match to the satisfaction of the match officials and both teams playing the match, and play was approved.

26. The Petitioner avers that it will be a travesty to the players of Kayole Starlets which is a community club if they are relegated without being accorded a fair hearing as they have worked hard all season.

27. The Petitioner further avers that the relegation of Kayole Starlets will affect the Economic and Social Rights of the players and support staff which is enshrined under Article 43 of theConstitution as they will not be competitive financially in the low tier leagues and will set a bad precedent

28. The Petitioner submits that at all material times Kisumu all starlets supporters and members were responsible for the abandonment of the match and should be the ones to forfeit the match and points. The Petitioner requests the Tribunal to award three points to Kayole Starlets FC.

29. The Petitioner further submits that Kisumu All starlets members and supporters should have been the parties to be punished for the violence and the abandonment of the match.

30. The Petitioner sought for the following reliefs from the Arbitral Tribunal:-a.A declaration that the decision by the 1st Respondent contained in the letter dated June 22, 2022 to forfeit the match and award points to the 2nd Respondent, Kisumu All starlets FC is null and void.b.A declaration that the 2nd Respondent’s members and supporters were responsible for the abandonment of the WPL match between Kayole Starlet FC and Kisumu All starlets FC on June 12, 2022. c.An order quashing the decision of the 1st Respondent in their letter dated June 22, 2022 and hereinafter forfeiting the match in favour of the Petitioner and awarding points to Kayole Starlet FCd.A declaration that the rules of natural justice were not followed and therefore the decision in the letter dated June 22, 2022 is null and voide.Any further orders the court will deem appropriate to grant.f.The costs of the Petition to be awarded to the Petitioner as against the Respondents

1st Respondent’s Case

31. The 1st Respondent put in a Replying Affidavit dated August 17, 2022 sworn by Neddy Okoth the Chairperson of the Women’s Football Committee of the FKF Transition committee.

32. Ms Okoth in the Replying Affidavit stated that all the clubs concerned in this matter are bound by the provisions of theConstitution of FKF and all teams are bound to obey the Rules & Regulations Governing Kenyan Football (2019) (hereinafter the Regulation)

33. The Deponent further stated that a finding was made that Kayole Starlets who are the hosting team had failed to provide adequate security to prevent fans from invading the playing field.

34. That the Committee relied on the Rules & Regulations governing Kenyan Football specifically Articles 3. 5.2, 3. 5.4 and 9. 1.2. 1.1. Ms Okoth further stated that the Appellant ought to have exhausted all internal mechanisms before resorting to municipal courts.

The 2nd Respondent

35. The 2nd Respondent filed a Notice of Preliminary Objection dated July 22, 2022 seeking to dismiss the suit on grounds thata.The suit is merely speculative, generalized, hypothetical and has not been pleaded with specificity and hence it offends the principles of pleading with precisionb.That the suit and the application are founded on generalized assertions, misinterpretation, misapplication and narrow interpretation and application of FKF Constitution, IFAB Laws of the Game and Rules and Regulations Governing Kenyan Footballc.That the entire suit is incompetent and premature to the extent that the Applicants have failed to exhaust the Internal Dispute Resolution dispute processes provided by the FKF constitution and the Rules and Regulations Governing Kenyan Football. These provisions provide adequately for the hearing and determination of any appeals arising out of disputes arising from any decisions by its standing Committees. Accordingly, this Honorable Tribunal should defer to those processes and decline jurisdiction to hear the suit until the Applicants exhaust them.d.That this Honourable Tribunal otherwise has no jurisdiction to hear and determine the suit as the Respondents have not submitted to its jurisdiction by consent and neither have, they submitted to and/or alternative dispute resolution. Accordingly, and in accordance with the statutory remit of its jurisdiction, the Tribunal is wrongly seized of the matter and the same should be struck out in limine.e.That the same subject matter with the same parties herein is extensively being canvassed in the Independent Disciplinary and Appeals Committee and thus premature and incompetentf.That the entire suit is otherwise an abuse of process and liable for dismissal.g.The Notice of Preliminary Objection filed by the 2nd Respondent was opposed through a Replying Affidavit sworn by Raymond Onyango dated July 26, 2022 and filed on the same day.h.The Deponent in his Replying Affidavit deponed that there is no pending appeal at the Independent Disputes Appeals Committee and therefore the dispute is properly before the Tribunal and therefore the Tribunal has jurisdiction to determine the same.

D. Hearing 36. The matter came up for mention and hearing on diverse dates. On July 4, 2022 the Tribunal certified the Application by the Petitioner as urgent and directed that the matter be listed for Mention on July 5, 2022.

37. On July 5, 2022 the Tribunal directed that the 1st Respondent to provide the referees match report to the 2nd Respondent and the Tribunal within three days. The matter was then scheduled for hearing on July 20, 2022.

38. On July 20, 2022 the Tribunal directed the Respondents to file substantive responses as well as Preliminary Objection by July 26, 2022 and the matter was listed for mention on July 27, 2022. Once again an order to provide the Match Referee’s report as earlier directed was issued. Eventually the parties made oral submissions based on their respective documents and asked the Panel to refer to the documents filed and the oral submissions and make a determination on the matter. The 2nd Respondent did not make submissions neither did it file any other document save for the Grounds of Opposition. The decision was reserved to be rendered on Notice.

E. Discussion 39. Having taken into account the parties’ pleadings written and oral submissions, the Tribunal finds that the following issues present themselves for determination:1. Whether the Tribunal has Jurisdiction to hear the Appeal herein?Depending on the determination of the above issue2. Whether the 1st Respondent’s decision to award points from match number 128 to the 2nd Respondent was justified?3. What are the appropriate orders in this matter?

Whether the Tribunal has Jurisdiction to hear the Appeal herein? 40. The jurisdiction of this Tribunal stems from Section 58 of the Sports Act which provides as follows:'The Tribunal shall determine—a.Appeals against decisions made by national sports organizations or umbrella national sports organizations, whose rules specifically allow for appeals to be made to the Tribunal in relation to that issue including —i.Appeals against disciplinary decisions;ii.Appeals against not being selected for a Kenyan team or squad;b.Other sports-related disputes that all parties to the dispute agree to refer to the Tribunal and that the Tribunal agrees to hear; and(c)Appeals from decisions of the Registrar under this Act.'

41. Section 59 of the Sports Act states further that:'The Tribunal may, in determining disputes apply alternative dispute resolution methods for sports disputes and provide expertise and assistance regarding alternative dispute resolution to the parties to a dispute.'

42. The 1st Respondent filed a Notice of Preliminary Objection paragraph 3 to 5 whereof are in the following terms:-3 That the entire suit is incompetent and premature to the extent that the Applicants have failed to exhaust Internal Dispute Resolution Disputes processes provided by FKF Constitution and the Rules and Regulations Governing Kenyan Football. These provisions provide adequately for the hearing and determination of any appeals arising out of disputes arising from any decisions by its standing Committees. Accordingly, this Honourable Tribunal should defer to those processes and decline jurisdiction to hear the suit until the Applicants exhaust them.4 That this Honourable Tribunal otherwise has no jurisdiction to hear and determine the suit as the Respondents have not submitted to its jurisdiction by consent and neither have, they submitted to and/or acceded to arbitration in the matter by the Tribunal and/or alternative dispute resolution. Accordingly, and in accordance with the statutory remit of its jurisdiction, the tribunal is wrongly seized of the matter and the same should be stuck out in limine.5 That the same subject matter with the same parties herein is extensively being canvassed in the Independent Disciplinary and Appeals Committee and thus premature and incompetent.

43. This panel understands this objection on its Jurisdiction to be based on the FKF Constitution. Whereas the Objection is coined to indicate that the Tribunal totally lacks Jurisdiction, it is the panel’s understanding form a reading of the Response in the Affidavit of Neddy Okoth, that what is in challenge is the Procedural Jurisdiction of the Tribunal and not the Substantive jurisdiction. The Respondent deems it appropriate that the Petitioner should exercise what the 1st Respondent considers to be Internal Dispute Mechanism provided by the 1st Respondent. The Tribunal does note that the dispute giving rise to the Appeal arose from a Notification to Petitioner contained in a letter dated June 22, 2022. That letter is signed by one Neddy Okoth who is stated to be the Chairperson of the Women Committee within the 1st Respondent. In reaction to that letter, the Petitioner by a letter of June 24, 2022 wrote to the said Chairperson a lengthy letter in effect disagreeing with the assertions as to culpability of the Petitioner in regard to the abandonment of match number 128.

44. The gist of the Petitioner’s response on 24th June was that:-1. In terms of Articles 47(1), and 50(1) &(2),( a)(,b)(,c),(d) (e),(g),(k), the Petitioner was entitled to a fair hearing which they had not been accorded before the decision contained in the letter of June 22, 2022 was taken.2. The Petitioner also contested that in terms of Football Laws the Referee has full authority to enforce the Laws of the Game within a match and specifically according to Rule 5 (1), (2) of the IFAB Laws of the Game 2022-2023 which is as follows:-Decisions of the Referee1. The authority of the referee Each match is controlled by a referee who has full authority to enforce the Laws of the Game in connection with the match.

2. Decisions of the referee Decisions will be made to the best of the referee's ability according to the Laws of the Game and the ‘spirit of the game’ and will be based on the opinion of the referee, who has the discretion to take appropriate action within the framework of the Laws of the Game. The decisions of the referee regarding facts connected with play, including whether or not a goal is scored and the result of the match, are final. The decisions of the referee, and all other match officials, must always be respected. The referee may not change a restart decision on realising that it is incorrect or on the advice of another match official if play has restarted or the referee has signalled the end of the first or second half (including extra time) and left the field of play or abandoned the match. However, if at the end of the half, the referee leaves the field of play to go to the referee review area (RRA) or to instruct the players to return to the field of play, this does not prevent a decision being changed for an incident which occurred before the end of the half. Except as outlined in Law 12. 3 and the VAR protocol, a disciplinary sanction may only be issued after play has restarted if another match official had identified and attempted to communicate the offence to the referee before play restarted; the restart associated with the sanction does not apply. If a referee is incapacitated, play may continue under the supervision of the other match officials until the ball is next out of play.

45. The Petitioner therefore concluded that the letter of June 22, 2022 was taken either in ignorance or in total disregard of those specific rules of the game and the Petitioner’s Right to Fair Hearing and Right to Fair Administrative Action.

46. Article 47 of theConstitution of Kenya states as follows:-47. Fair administrative action(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action. (3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—(a) Provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and

(b) Promote efficient administration.

(a) Provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and

(b) promote efficient administration.

(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

(3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—(a) Provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and

(b) Promote efficient administration.

(a) Provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and

(b) promote efficient administration. Article 50 also states as follows:-50. Fair hearing(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.

(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. The Fair Administrative Action Act NO 4 of 2015 Section 4 provides as follows:-4. Administrative action to be taken expeditiously, efficiently, lawfully etc(1) Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.

(2) Every person has the right to be given written reasons for any administrative action that is taken against him. (3) Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision–(a) Prior and adequate notice of the nature and reasons for the proposed administrative action;

(b) An opportunity to be heard and to make representations in that regard; (c) Notice of a right to a review or internal appeal against an administrative decision, where applicable;

(d) A statement of reasons pursuant to section 6; (e) Notice of the right to legal representation, where applicable;

(f) Notice of the right to cross-examine or where applicable; or (g) Information, materials and evidence to be relied upon in making the decision or taking the administrative action.

(a) Prior and adequate notice of the nature and reasons for the proposed administrative action;

(b) an opportunity to be heard and to make representations in that regard;

(c) Notice of a right to a review or internal appeal against an administrative decision, where applicable;

(d) a statement of reasons pursuant to section 6;

(e) notice of the right to legal representation, where applicable;

(f) Notice of the right to cross-examine or where applicable; or

(g) Information, materials and evidence to be relied upon in making the decision or taking the administrative action.

(4) The administrator shall accord the person against whom administrative action is taken an opportunity to–(a) attend proceedings, in person or in the company of an expert of his choice;

(b) be heard; (c) cross-examine persons who give adverse evidence against him; and

(d) request for an adjournment of the proceedings, where necessary to ensure a fair hearing.

(a) Attend proceedings, in person or in the company of an expert of his choice;

(b) be heard;

(c) Cross-examine persons who give adverse evidence against him; and

(d) request for an adjournment of the proceedings, where necessary to ensure a fair hearing.

(1) Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.

(2) Every person has the right to be given written reasons for any administrative action that is taken against him.

(3) Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision–(a) Prior and adequate notice of the nature and reasons for the proposed administrative action;

(b) An opportunity to be heard and to make representations in that regard; (c) Notice of a right to a review or internal appeal against an administrative decision, where applicable;

(d) A statement of reasons pursuant to section 6; (e) Notice of the right to legal representation, where applicable;

(f) Notice of the right to cross-examine or where applicable; or (g) Information, materials and evidence to be relied upon in making the decision or taking the administrative action.

(a) Prior and adequate notice of the nature and reasons for the proposed administrative action;

(b) an opportunity to be heard and to make representations in that regard;

(c) Notice of a right to a review or internal appeal against an administrative decision, where applicable;

(d) a statement of reasons pursuant to section 6;

(e) notice of the right to legal representation, where applicable;

(f) Notice of the right to cross-examine or where applicable; or

(g) Information, materials and evidence to be relied upon in making the decision or taking the administrative action.

(4) The administrator shall accord the person against whom administrative action is taken an opportunity to–(a) Attend proceedings, in person or in the company of an expert of his choice;

(b) Be heard; (c) Cross-examine persons who give adverse evidence against him; and

(d) request for an adjournment of the proceedings, where necessary to ensure a fair hearing.

(a) Attend proceedings, in person or in the company of an expert of his choice;

(b) be heard;

(c) Cross-examine persons who give adverse evidence against him; and

(d) request for an adjournment of the proceedings, where necessary to ensure a fair hearing.

47. The panel notes that the Petitioner only got to know of the adverse decision taken against it when they received the letter of June 22, 2022. The Petitioner’s letter of June 24, 2022 does not seem to have elicited a response that is before this Panel. Instead the Panel notes that a letter of July 18, 2022 is then written by one GMT Ottieno stated to be the Chairman of the Independent Disciplinary and Appeals Committee (hereinafter IDAC) of the 1st Respondent. That letter we note is not signed. The same also calls the Respondent to a hearing on 19th of July at 2. 30pm. By this time the Petitioner had already filed the present proceedings and Directions given by the Chairman of the Tribunal.

48. Mr Raymond Onyango in his Replying Affidavit sworn on the July 26, 2022 and filed on the same date at paragraph 6 to 9 depones as follows:-6. That on July 18, 2022 at 7. 40pm an email was sent by IDAC FKF TC whose contents were surprising to us and required us to appear before IDAC the following day July 19, 2022 at 2. 30pm for hearing which email with an unsigned letter attached therein we saw on the morning of July 19, 2022 (Attached & Marked RO-1A&B is a copy of the email and unsigned letter)7. That the unsigned letter by the Chairman of the IDAC FKF TC, Mr GMT Ottieno, clearly shows that the proceedings are fixed and hurriedly convened to pre-empt the hearing date of this appeal that was scheduled for July 20, 2022 but nevertheless we responded to the letter via our letter dated July 19, 2022 (Attached & Marked RO-2 is a copy of our response letter dated July 19, 2022)8. That I am advised by my Advocates that the alleged FKF Transition Committee Independent Disputes Appeals Committee is not properly constituted as per the requirements of the FIFA Statutes and Article 64 (1,2,3) of the FKF Constitution on Judicial bodies for the following reasons;i.The Chairman is not qualified to practice lawii.The Vice Chairperson is also not qualified to practice lawiiiThe IDAC FKF TC does not have published rules of procedureivThe members of the IDAC FKF TC were plucked from the caretaker committee and their impartiality and independence is questionable9. That it is clear that even if the IDAC exists it is not properlyconstituted as its chairman GMT Ottieno is not qualified to practice law as mandatorily required neither is his vice chairman

49. The contents of paragraph 6 have not been contested by the Respondents. This means that the Petitioner only received the letter on June 19, 2022 and was required to avail itself or its representative before the said IDAC within a few hours and be ready to present its case. In the circumstances it can hardly be stated that the Petitioner was granted ample time to prepare and be ready to be heard. The panel notes that there has been no response to the Petitioner’s complaint in regard to that short Notice to appear before the IDAC nor has other effort been made to avail the Petitioner a fresh opportunity to be present its grievances.

50. This Panel is of the view that where there is breach of the Right to be Heard and decisions taken adverse to a party, the party then would be highly prejudiced and entitled to approach the Tribunal by way of an Appeal to right the Breach of a Right to Fair Hearing. Further, it is noted that a decision had already been taken regarding the matter which had been communicated in the letter of July 22, 2022 which in terms of Section 58 (1) & (2) provides:-The Tribunal shall determine—c.Appeals against decisions made by national sports organizations or umbrella national sports organizations, whose rules specifically allow for appeals to be made to the Tribunal in relation to that issue including —i.Appeals against disciplinary decisions;

51. Article 3 of the FKF Constitution provides that:'FKF is committed to respecting all internationally recognised human rights and shall strive to promote the protection of these rights.'

52. The Right to a fair hearing therefore sits at the centre of the FKF Constitution as an integral component of human rights. The Petitioner ought to have been given a chance by the 1st Respondent to make its case or explain their side of the story with respect to the Match against Kisumu All Starlets before the adverse sanctions were issued,

53. In the case numberSDTSC 021 of 2022 Gusii Football Club v FKF Transition Committee This Tribunal held that any decision where an FKF club is adversely affected, the FKF has a responsibility to ensure that the club is formerly informed and that they are given the opportunity to respond to the intended adverse action that would affect them. that is the requirement of the principles of Fair Administrative Action.

54. In regard to the existence or non-existence of the Internal Dispute Resolution Mechanism, the Petitioner has questioned the propriety of the IDAC as constituted by the 1st Respondent. The Petitioner avers that the said IDAC is not properly constituted in terms of the requirements of the FIFA Statute and Article 64 (1), (2) and (3) of the FKF Constitution with regard to the composition of Judicial bodies of the 1st Respondent. The said Article of the FKF Constitution provides as follows:-Article 64 Judicial Bodies1. The judicial bodies of FKF are:a)The Disciplinary Committee;b)The Ethics Committee;c)The Appeal Committee.2. The judicial bodies shall consist of a chairman, deputy chairman and the number of members deemed necessary.3. The judicial bodies are to be composed in such a way that members, together, have the knowledge, abilities and specialist experience that is necessary for the due completion of their tasks. The chairmen of the judicial bodies shall be qualified to practice law and shall undergo an integrity check prior to their appointment or re-appointment. This integrity check shall be conducted by the Audit and Compliance Committee for all members of the Ethics Committee (including the chairman and vice chairman). For all other members of the judicial bodies (including the chairmen and vice chairmen), the integrity check shall be conducted by the Ethics Committee. The term of office shall be four years. The members may be re-elected or relieved of their duties at any time, although they may only be relieved of their duties by the General Assembly

55. It is specifically stated that the Chairman of the IDAC constituted by the 1st Respondent Mr GMT Ottieno is not qualified to practice Law and neither is the Vice-Chairperson. This averment has not been disputed by the 1st Respondent, it is therefore uncontroverted. To that extent it cannot be stated that the 1st Respondent has within itself the appropriate mechanism for Internal Dispute Resolution before which the Petitioner could have submitted its grievance to ,in terms of the operative FKF Constitution. In any event as already stated above by the letter of 24th June, the Petitioner had made that request which was only responded to after this Petition had been filed. Fearing relegation as a consequence of the decision made the petitioner was entitled to move to the Tribunal to stem the consequences of the adverse decision.

56. Based on the above discussions, this Panel determines that the Tribunal has requisite substantive and procedural Jurisdiction to hear and determine the Petition herein and the 1st Respondent’s Preliminary Objection on that basis is therefore dismissed.

57. We will proceed to determine the issue of deduction of points.

Whether the 1st Respondent’s decision to award points from match number 128 to the 2nd Respondent was justified? 58. According to the letter of June 22, 2022, the decision to award the points in the abandoned match no 128 to the 2nd Respondent is stated to be based on the reports received from the match officials. That letter states as followsThe Chairman/SecretaryKayole Starlet FCNairobi, KenyaDear Sir,REF: Abandoned Match-wpl Match No 128 –Kayole Starlet FC Vs Kisumu All Starlets FCReference is made to the above matterWe are in receipt of the match officials’ report for the above-mentioned match played at Stima Club Nairobi on June 12, 2022. From the Submissions, it is reported that the match was called off at the 80th minute after the assistant referee was threatened by a fan during the match.Art 3. 5.2 of the Regulation states, 'Home Clubs are responsible from preventing spectators and other unauthorized persons from encroaching on the playing field except for safety reasons,' andArt 3. 5.4 states; 'if the ground requires security protection to prevent spectators from interfering with the game, it shall be the duty of the home club to provide such security and if proved not provided, the referee shall not start the game, the home club shall lose the match by forfeiture.'Article 9. 1.2. 1.1 further states, 'it will be presumed unless the contrary is proved, that a club has failed to provide adequate security at its venue where the spectators at such venue, irrespective of their affiliation, committed acts, or were responsible for conduct that is considered improper behaviour.'Guided by the above regulations, we wish to inform you that the match shall be considered as forfeited by your team and the same awarded to Kisumu All Starlets FC

59. We have looked at the Match Commissioners Report. The match Report at the bottom is as follows:-'The pre match meeting was conducted peacefully and all that was agreed was adhered to. the match kicked off at the stipulated time and went on well up to the 60th minute when the referee sent off beryl the team manager kisumu starlets for abusive language. the match stopped at the 80th minute after kisumu scored their goal and the fans entered the field with one fan in a white tshirt chasing the first ar with an aim of beating him up i intervened and went and ejected the very fan out of the stadium and on coming back that this the time the very assistant referee told me that he had been threatened with another fan whom he identified. we had to wait to.'

60. The Report further indicates that in the 80th minute the 2nd Respondent’s fans invaded the pitch and as per the Match Commissioner’s Report, one of their fans chased the Assistant Referee which resulted in the match being abandoned.

61. The Affidavit in support by one Raymond Onyango states that the match was abandoned in the 80th minute as a result of invasion of the field of play and use of threats and abusive language on the match officials by the 2nd Respondents members and supporters. At paragraph 9 of the Affidavit Mr Onyango depones that prior to the decision to abandoned the match at the 80th minute there had been a stoppage and a send-off of the 2nd Respondent’s Team Manager Beryl at the 60th minute for use of abusive language towards the match officials. He also confirms that a supporter of the 2nd Respondent was ejected from vicinity of the field after a report by the assistant referee to the Referee.

62. It is noted that the 2nd Respondent though served only filed the Preliminary Objection on the Tribunal’s jurisdiction as above discussed, but did not file any response to controvert the specific averments in the Petitioner’s Supporting Affidavit touching on its supporters and members conduct and the report of the match commissar regarding the conduct of its supporter captured in the Match commissar’s report which is stated to have led to the abandonment of the match as well as statements regarding threats and abuse on the match officials. A response has however been put in by the 1st Respondent through an Affidavit of one Neddy Okoth who we note is the author of the letter of June 22, 2022.

63. At paragraph 5 and 6 of her Affidavit she states as follows:5That as far as I am aware and what has been confirmed to me by our Chairman of the said Leagues & Competitions Committee Mr Ali Amour and the leagues administrator Mr Frank Ogolla a finding was made that the match in question between Kayole Starlets as the hosting team and visiting Kisumu Starlets at Stima Club Nairobi that the host team had failed to provide adequate security to prevent fans from invading the playing field.6That in reaching that finding we relied on our regulations in this case Article 3. 5.2, 3. 5.4 and 9. 1.2. 1.1. Annexed hereto and marked 'NO 1'are extracts of the said regulations.

64. The decision to award the points to Kisumu All Starlets is stated to be premised on the FKF Rules at Clause 3. 5 (1), (2) and (5) which states that :-3. 5. Security and Safety

3. 5.1. It shall be the duty of the home team to ensure that adequate security and safety arrangements are made for the match crew and their property and that of the spectators. If a home club fails to make reasonable hosting and security arrangements the FKF National League and Competitions Committee can change the venue for their home matches until the club presents a detailed security plan and budget acceptable to the said committee.

A Pre – Event security meeting shall be held at least two (2) days to any match which the FKF National League and Competitions Committee shall in its own discretion classify as 'high risk'. The said shall be chaired by a Match Commissar appointed for the said match. Each club shall be represented by one of its officials and the meeting must be attended by a member of the Police force of the rank of not below an Officer in Charge of a Police Station 2. Home clubs are responsible for preventing spectators and other unauthorized persons from encroaching on the playing field except for safety reasons. They must also take adequate measures to prevent the throwing of missiles, bottles and other potentially harmful or dangerous objects or substances on to the playing field.

3. 5.5 If security has been assessed as adequate and violence erupts thereafter, absence of security shall not be presented as defense for responsibility of the ensuing crowd violence.

Chapter 9 on Misconduct and Sanctions provides as follows

CHAPTER 9: Misconduct And Sanctions9. 1 Acts of Misconduct or Offences9. 1.1. Without derogating from the generality of what constitutes an act of misconduct or an offence, the following are specifically declared to be acts of misconduct or offenses on the part of a member, a team, a player, an official, a servant or their duly authorized (ex- press or implied) representative or agent as the case may be.9. 1.2. On the part of a team where:9. 1.2. 1. It fails to provide adequate security at its venue:9. 1.2. 1.1 It will be presumed, unless the contrary is proved, that a club has failed to provide adequate security at its venue where the spectators at such venue, irrespective of their affiliation, committed acts, or were responsible for con- duct that is considered improper behavior;9. 1.2. 1.2 It will not be a defense to the previously mentioned charge that a larger crowd than anticipated attended or attempted to attend the game;9. 1.2. 2. Its players, officials, servants or duly authorized (express or implied) representatives or agent or supporters directly or indirectly interrupt, obstruct or disturb the normal proceedings of a game before, during or after the match;9. 1.2. 3. Its players, officials, servants or duly authorized (expressed or implied) representatives or agent, for any corrupt, dishonest or unlawful purpose in connection with a game played under the auspices of FKF, or in connection with the affairs of the FKF Official Competitions, give, offer or promise, whether directly or indirectly, any inducement, reward or bribe of whatsoever nature, to anybody whatsoever;9. 1.2. 4. Its players, officials, servants or duly authorized (express or implied) representatives or agent accept any inducement, reward or bribe referred to in Rule 9. 1.2. 3.above; On its part, the Petitioner states that the 1st Respondent has only relied on Articles 3. 5.2 and 3. 5.4 of the Rules Governing Kenyan Football while ignoring Article 3. 5.6 which would awarded points to the forfeiture as Kisumu All Stars were the aggressors and guilty of the abandonment. 65. The Affidavit of Raymond Onyango firmly states that the Petitioner had made adequate security arrangements and has annexed the arrangement made with the nearby police station to provide security which thereby met requirements of Article 3. 5.1 of the FKF Regulations. Further, it is stated that the adequacy of security arrangements had been found adequate at the pre-match meeting. That in any event the inversion or breach of security leading to abandonment of the match, was by identified supporters and members of the 2nd Respondent which according to Article 3. 5.6 should be visited upon the 2nd Respondent and not the Petitioner.

66. Article 3. 5.6 states as follows:-'A club will forfeit any match which was abandoned because of the misconduct of their members or supporters.'

67. The panel observes that the averments of Raymond Onyango finds support in the Independent Match Commissioner’s Report that indeed the abandonment was occasioned by inversion of the field of play and use of threats and abusive language by persons associated with the 2nd Respondent. It has not been alleged anywhere that this was by reason of lack of security arrangements by the Petitioner who as earlier stated had made arrangements with police to provide security. It has also been observed that the 2nd Respondent did not respond to the averments regarding its fans. The panel also observes that a properly conducted hearing by the appropriate organs of the 1st Respondent would have shed better light on the matter. Further, a request was made during the hearing for the 1st Respondent to produce the Referee’s report which despite directions of the Tribunal was not availed by the 1st Respondent. Such failure to avail the said Referee’s Report can only be construed adversely against the 1st Respondent who is the custodian of the same.it is the rule of Football governance that the match Referee’s decision on a match is critical. In this case, the said official’s decision to terminate the match was a most crucial component of the determination of the cause of the abandonment. The panel is surprised that that crucial report was not availed despite orders to that effect and despite the statement in the Replying Affidavit of Neddy Okoth that a decision was made based on such report.

68. We think that Rule 3. 5.6 generally takes a Common-sense position. It would be a strange, nay harsh position to make a home club to bear absolute responsiblity at all times even for uncontested security breaches by visiting teams. It would be a recipe for mischief by visiting teams who would easily breach match security to gain automatic award of the match and points. Football must be played and won on the field of play, not on skewed narrow interpretation of rules in the Boardrooms

69. Before we leave this issue, we would wish to comment on the letter of June 22, 2022 issued by the Chairperson of the Women’s Committee. It has not been demonstrated by the 1st Respondent what judicial authority or capacity the said individual Neddy Okoth held to be able to issue the said letter or on behalf of which Judicial body/ organ of the 1st Respondent the said communication was made so that the same fits within the FKF Rules and Regulations in regard to determinations of alleged misconduct or that she was entitled to make that determination.

70. Consequently, having noted as above, the Panel is of the view that the decision contained in the letter of June 22, 2022 by the 1st Respondenta.Has not been demonstrated to have been made by the relevant and properly constituted Judicial body of the 1st Respondentb.Was communicated by a person or persons eligible to make that determination and communication.c.Was made after due consideration of the relevant reports of the Match Commissioner and the Match Refereed.Was made after due process and fair hearing of the Petitionere.Does not appear to have taken into consideration the culpability of the 2nd Respondent’s supporters and officials which contributed to the abandonment and the effects of Article 3. 5.6 on the same

71. For the above reasons, the Panel finds and holds that the decision to award the points for the abandoned match 128 to Kisumu All Starlets was not made Judiciously by the appropriate organ of the 1st Respondent, based on materials and evidence to be relied upon and the relevant provisions of the FKF Rules and Regulations. The same is therefore open to be quashed and annulled.

F. Orders 72. It is therefore in consideration of the above, as well as the parties’ submissions that the Tribunal makes the following orders:a.A declaration be and is hereby made that the decision of the 1st Respondent contained in the letter of June 22, 2022 breached the Applicant’s right to Fair Administrative Action and Fair Hearing contrary to the Fair Administrative Action Act No 4 of 2015 and Articles 47 and 50 of theConstitution of Kenyab.The Petition dated June 28, 2022 is allowed. The decision of the 1st Respondent contained in the letter of June 22, 2022 is hereby quashedc.The Panel hereby finds and holds that the 2nd Respondent’s members and supporters were responsible for events leading to the abandonment of Match no 128 between Kayole Starlets FC and Kisumu All starlets and shall therefore forfeit the match as per the Rules and Regulations governing football 2019. d.A declaration be and is hereby made that the last Match of the 2021-22 FKF Women Premier League between Kayole Starlets FC and Kisumu All Starlets shall be awarded to the Petitioner on a 2-0 basis as per the Rules and Regulations governing Football.e.An order be and is hereby issued compelling the 1st Respondent to award Match 128 to the Petitioner including awarding the said Match 128 win in their total tally of points to the Petitioner for the Kenya Premier League 2021/22 season and thereafter to effect relevant changes in the league Table standings for the 2021-2022 Standings.f.Each party shall bear its own costs.

Dated at Nairobi this 27th__ day of September__ 2022Signed:Njeri Onyango FCIArbPanel Chairperson_____________________________E Gichuru Kiplagat Member Gabriel Ouko - Member15