Nelson Mbaja Amendi v AFC Leopards Sports Club, Sports Registrar, Daniel A. Mule, Oscar Igaidi, Oliver Napali & Shikanda Daniel Akala; Namai Ronald Mukoya, Oliver Shikuku & Choge Maurice Chichi (Intersted Parties) [2019] KESDT 73 (KLR)

REPUBLIC OF KENYA

THE JUDICIARY

OFFICE OF THE SPORTS DISPUTES TRIBUNAL

AT NAIROBI

SDT CASE NO. 10 OF 2019

NELSON MBAJA AMENDI......................................................CLAIMANT

VERSUS

AFC LEOPARDS SPORTS CLUB................................1ST RESPONDENT

SPORTS REGISTRAR..................................................2ND RESPONDENT

DANIEL A. MULE.........................................................3RD RESPONDENT

OSCAR IGAIDI..............................................................4TH RESPONDENT

OLIVER NAPALI...........................................................5TH RESPONDENT

SHIKANDA DANIEL AKALA.....................................6TH RESPONDENT

NAMAI RONALD MUKOYA...........................1ST INTERESTED PARTY

OLIVER SHIKUKU..........................................2ND INTERESTED PARTY

CHOGE MAURICE CHICHI.............................3RD INTERSTED PARTY

RULING

The Claimant has approached this Tribunal through an application by way of Notice of Motion dated and filed on 21st June 2019 (‘the Application’). The Claimant requests the Honourable Tribunal to grant the following Orders:

1. The Application be certified urgent and be heard ex parte in the first instance;

2. Pending inter-parties hearing the Honourable Tribunal be pleased to issue a temporary injunction against the Respondents, themselves or their servants from carrying out, conducting or assembling to carry out elections on the 23rd June 2019 or any day, date, thereafter, pending the hearing and determination of the application;

3. Pending the hearing of this application and claim the Respondents themselves on their own or through their servants or agents be restrained by an order of injunction from carrying out, conducting or assembling to carry out elections on the 23rd June 2019 or any day, date, thereafter pending the hearing and determination of this application;

4. That this Honourable Tribunal be pleased to issue conservatory orders staying the implementation of the purported Constitution of AFC Leopards adopted on the 25th June 2017 pending the hearing and determination of the application of the claim herein;

5. That the Respondents be condemned to pay costs of this application

The crux of the matter therefore is whether this Tribunal should grant an Order stopping the elections scheduled for 23rd June 2019 and grant conservatory orders staying implementation of the 1st Respondent’s Constitution which was adopted in June 2017.

Having considered the Application and his Supporting Affidavit, the Tribunal finds that substantial justice would be better served if the injunction sought is declined. Part VI of the Sports Registrar Regulations, 2016 allows a person dissatisfied with the elections to appeal to this Tribunal within 30 days. The Claimant can exercise this right if dissatisfied with the conduct of the elections.

Further, taking into consideration the time and expenses consumed in preparing for the elections, the interests of the wider community of the 1st Respondent  would be best served if the elections are allowed to proceed as scheduled.

On the second issue relating to granting a conservatory order, the Tribunal faces great difficulty in seeing the justification behind this prayer. No material has been tendered to before the Tribunal to demonstrate how the Constitution as currently constituted will negatively affect the elections to be held on 23rd June 2019.

Based on the foregoing, the Application fails in the first instance. The Applicant nonetheless has liberty to amend his petition after the election to challenge the result.

i. The Tribunal accordingly Orders as follows:

ii. The Claimant’s prayers for a temporary injunction barring the elections and a conservatory order staying the implementation of the 1st Respondent’s Constitution is declined;

iii. The matter shall be mentioned before the Tribunal for further directions on 2nd July 2019 when the 1st Respondent shall present results of the election together with the election report;

iv. The costs of the application are reserved.

DATED at NAIROBI this 21st  day of  June,  2019.

Signed:

___________________

John M Ohaga, FCIArb

Chairman, Sports Disputes Tribunal