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JudgmentDICK OKINYI AND NAFTALI ASEKA VS SPORTS DISPUTES TRIBUNAL13 min read

DICK OKINYI AND NAFTALI ASEKA VS SPORTS DISPUTES TRIBUNAL

High Court at Machakos High Court · · Hon.Lady Justice Noel Adagi

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

MISC. CIVIL APPLICATION NO. E040 OF 2024

IN THE MATTER OF: AN APPLICATION BY DICK OKINYI & NAFTALI ASEKA FOR LEAVE TO COMMENCE JUDICIAL REVIEW PROCEEDINGS PURSUANT TO ORDER 53 OF THE CIVIL PROCEDURE RULES CAP 21

AND

IN THE MATTER OF:  SECTION 58 OF THE SPORTS ACT, 2013

AND

IN THE MATTER OF:  ARTICLES 69(2), 69(1) & 70 OF THE FOOTBALL KENYA FEDERATION CONSTITUTION, 2017

IN THE MATTER OF: RULES 10.3.1 & 10.3.5 OF THE FKF RULES & REGULATIONS GOVERNING KENYAN FOOTBALL

BETWEEN

  1. DICK OKINYI.
  2. NAFTALI ASEKA ......................................................................... APPLICANTS

VERSUS

SPORTS DISPUTE TRIBUNAL.............................................................. RESPONDENT                                

AND

  1. SULEIMAN B. MWADIBO
  2. ZACHEL MURILA
  3. BASIL MWAKULOMBA
  4. MOHAMMED HASSAN
  5. SAMWEL MWANGEMI
  6. GAMALIEL MWARABU
  7. ABASS MGHENDI
  8. BONIFACE MWAKIMA
  9. SIMEON MKALA
  10. OETER MWAKUNGU WADUU
  11. MOSES NYANGE
  12. CHRISPINE MWALIMO
  13. ROPHUS MWADIME WAGUNGA
  14. JOHNSON SENJA WACHE
  15. ZABLON MWANYUMBA
  16. ALI MWANGÓMBE
  17. FREDRICK MWAMBANGA MWADOE
  18. JOSEPH C.B. KINA
  19. HENRY MWANZALA
  20. MICHAEL KOMBE KENGA
  21. BASIL KIUNG MWAKULOBA
  22. DOREEN NABWIRE
  23. MWATATE UNITED FOOTBALL CLUB........................INTERESTED PARTIES

RULING

Introduction

  1. The proceedings herein were commenced vide the Chamber Summons application dated 28/10/2024 for leave to apply for Judicial Review Orders of CERTIORARI removing to this court for purposes of quashing the entire decisions of the Respondent dated 7/8/2024 and 22/10/2024 in Sports Disputes Tribunal Case No. E045 OF 2023-Suleiman Mwabindo v FKF Leagues & Competition Committee & 3 Others.
  2. The sought leave was granted on 30/10/2024 and the same was to operate as stay of the directives and orders of the Respondent dated 7/8/2024 and 22/10/2024 and stay proceedings in STSC No. E045 OF 2023 pending hearing and determination of the substantive motion. The Applicants were further directed to file and serve the substantive motion within seven days of the issuance of the said order failure to which the stay would automatically lapse.
  3. The substantive Notice of Motion (“the Motion”) dated 4/11/2024 was filed in court on 4/11/2024 as can be seen from the court stamp endorsed thereon. This filing was within the seven days period as directed by the court, however the same was not served within that period which went against the directives of the court. The Motion seeks for orders that:
  4. The Applicants be granted Judicial Review Order of CERTIORARI removing to this court for purposes of quashing the entire Ruling of the Respondent dated 7/8/2024 and 22/10/2024 in Sports Disputes Tribunal Case No. E045 OF 2023-Suleiman Mwabindo v FKF Leagues & Competition Committee & 3 Others.
  5. The Applicants be granted JUDICIAL Review order of PROHIBITION against the Respondent entertaining the entire suit in in Sports Disputes Tribunal Case No. E045 OF 2023-Suleiman Mwabindo v FKF Leagues & Competition Committee & 3 Others.
  6. The leave granted herein to operate as stay of the Directions and Orders of the Respondent dated 7/8/2024 and 22/10/2024 as a stay of proceedings in Sports Disputes Tribunal Case No. E045 OF 2023-Suleiman Mwabindo v FKF Leagues & Competition Committee & 3 Others pending the determination of this suit.
  7. Costs of the application be born by the Respondent.
  8. The Motion is based on the grounds on the face thereof and supported by the Statutory Statement and Verifying Affidavit of DICK ARUDO.
  9. The Respondent did not enter appearance or file any response to the motion.
  10. The 1st to 22nd Interested Parties entered appearance through the law firm of Ken Ochieng’& Co. Advocates who filed a Replying affidavit sworn on 13th November 2024 by Suleiman B. Mwabido, the 1st Interested Party in opposition to the application.
  11. The 23rd Interested Party entered appearance through the law firm of A.K. Ndumu & co. Advocates but the court is not able to trace any response filed by them in the CTS.
  12. When the matter came up in court on 18/11/2024, it emerged that there were two other filed applications.  The Applicants’ application dated 6/11/2024 and another application filed by the firm of Kirimi Kinoti & Co. Advocates for Doreen Nabwire and Patrick Korir. Parties were granted leave to file and exchange responses to the pending applications and further directions were to be given on 20/11/2024.
  13. On 20/11/2024, the Applicant’s counsel informed court that the matter was coming up for a notice of motion application dated 6/11/2024 which is a contempt application against the 22nd Interested Party, Doreen Nabwire and Patrick Korir. The advocate for 22nd Interested Party informed the court that they wished to respond to the application dated 6/6/2024 by their application dated 18/11/2024 which sought to set aside the orders made by this court on 30/10/2024.
  14. Again, on the said 20/11/2024, parties were allowed to file and exchange any necessary objections and responses in the matter as well as their respective submissions. The matter was then to be mentioned on 17/12/2024 to confirm compliance by the parties and to fix ruling date.
  15. On 17/12/2024 the Applicants and the 1st to 21st Interested Parties Advocates confirmed to have filed their respective submissions. The 22nd Interested Party advocate sought to rely on the submissions filed by the 1st to 21st Interested Parties Advocates.
  16. The Applicants’ submissions are dated 30/11/2024 whilst the 1st to 21st Interested Parties submissions are dated 2/12/2024. I have cautiously and carefully perused all the applications on record, the supporting affidavits and the Replying affidavits filed. I have also considered the Parties Counsel written submissions.
  17. The major issue for determination that attracts this court’s attention is whether the Substantive Motion dated 4/11/2024 is competent. Although this issue was not raised by either party, it is one that flows from the pleadings and one which this court should determine and whose outcome could effectively determine the other applications.
  18. First, this court observes that the Applicants upon being granted leave to apply for Judicial Review Orders, they proceeded and filed the purported substantive motion under Miscellaneous Civil Application No. E040 of 2024 as can be seen from the face of the application. Although in the CTS, the application is to be found under High Court Judicial Review, the application dated 4/11/2024 and which is purported to be the substantive motion is titled as a Miscellaneous Civil Application Number E040 0F 2024.  It’s this court’s view that once leave was granted the Applicants ought to have filed the Substantive Motion under Judicial Review application and not under a Miscellaneous Civil Application on which no final orders can be granted.
  19. Secondly, even if the Motion were to be said to be properly before this court, still this court has noted that the Motion is instituted by DICK OKINYI and NAFTALI ASEKA as the Applicants and is supported by the Statutory Statement and the Verifying Affidavit both dated 28/10/2024 that were earlier filed together with the leave application in support of this Motion. The said Statutory Statement describes the Applicants as Kenyan Citizens and stakeholders in football activities within the Republic of Kenya. Apart from this description, the Applicants have not attempted to show in what capacity they present the Motion in as far us these proceedings are concerned. The statutory statement is the principal pleading in judicial review proceedings which has to disclose full facts and details of the matter. 
  20. The Verifying Affidavit on the other hand is sworn by one DICK ARUDO and not by either of the Applicants herein. The said DICK ARUDO describes himself as the Chairperson and a Member of the 23rd Interested Party (MWATATE UNITED FOOTBAL CLUB) but does not disclose his relationship or nexus with the Applicants.
  21. The said DICK ARUDO is neither a party to the proceedings nor has he demonstrated that he has the written Authority of the Applicants or of the 23rd Interested Party to swear the Verifying Affidavit or any other affidavit in this matter. It is also not clear whether the said DICK ARUDO is also DICK OKINYI. Again, even assuming DICK ARUDO is the DICK OKINYI, the 1st Applicant, it then follows that his Verifying Affidavit in the matter is incompetent for lack of Authority by the 2nd Applicant and the 23rd Interested Party to swear the same. Order 13 (1) & (2) of the Civil Procedure Rules is in the following terms:-

“13(1)  Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceedings, and in like manner where there are more defendants than one, any one of them may be authorized by any other of them to appear, plead, or act for such other in any proceedings, and in like manner where there are more defendants than one, any one of them may be authorized by any other of them to appear, plead or act for such other in any proceedings. 

(2)  The authority shall be in writing, signed by the party, giving it and shall be filed in the case.” (Emphasis supplied).

  1. In the case of Republic v District Land Registrar Uasin Gishu District Ex-parte Somog Limited & 5 others [2012] eKLR it was observed that:-

“So, under the above rule, if the 2nd, 3rd, 4th and 6th applicants authorized the deponent of the verifying affidavit to swear the said affidavit, such authority had to be in writing and had to be filed. In the absence of such written authority, the deponent of the verifying affidavit cannot purport to have sworn the same on their behalf. The 2nd, 3rd, 4th and 6th applicants have therefore not filed any verifying affidavit in these proceedings. They in any event, did not authorize the deponent of the verifying affidavit to commence these proceedings. The Notice of Motion is therefore unsupported.   Under Order 53 of the Civil Procedure Rules, a verifying affidavit is a prerequisite to the granting of leave to commence judicial review proceedings. In Commissioner General, Kenya Revenue Authority –vrs- Silvano Orema Owaki t/a (Marenga Filling Station [Civil Appeal No. 45 of 2000] (UR), It was held inter-alia as follows:-

“The Application for leave was grounded on the matters set out in the statement accompanying the application and in the verifying affidavit. The statement is required by 1 (2) of Order LIII of the Civil Procedure Rules to set out the name and description of the applicant, the relief sought and the ground on which it is sought. The facts relied on are required by the rule to be in the verifying affidavit not in the statement as largely happened in this case.

We would observe that it is the verifying affidavit not the statement to be verified which is of evidential value in an application for judicial review. That appears to be the meaning of rule 1 (2) of Order LIII. This position is confirmed by the following passage from the Supreme Court practice 1976 vol.1 at paragraph 53/1/7.

The application for leave “By a statement” – the facts relied on should be stated in the affidavit (see Republic –vs- Wandsworth JJ. Ex p. Read [1942] 1 K.B. 281 …”)

  1. The court further states that, failure to support the Applicants’ application with valid a verifying affidavit is not a mere procedural lapse. It is a fatal defect which goes to the root of the application. It cannot also be gainsaid that commencing these proceedings without the authority of the Applicants is not a mere technical flaw but a fatal omission.
  2.  In Chaliche F.C.S. Ltd –v- Odhiambo & 9 others [1987] KLR 182, it was held, inter alia as follows:-

“ 3.    It is not proper procedure and amounts to miscarriage of   justice for a party to be allowed to represent his co-defendants without their written authority, as required by the Civil Procedure Rules Order rule 8 or rule 12. (New Rule 13).

4.     The rules of procedure have two objectives to translate into practice the rules of natural justice, so that there are fare trials and procedural arrangements whereby the steps of a trial are carried out in good order and within reasonable time.

5.      Where the rules are dealing with the precepts of natural justice, the courts should be slow to conclude that they are mere technicalities”.

........... It has also been said and in my view correctly that rules of Court are not made to flower the statute books and increase their volumes. They are made to be followed and obeyed”.

  1. It follows that, the verifying affidavit must be sworn by the Applicant(s) who seek the orders of court on the basis of the evidence which it has presented.  I am guided in this regard, by the decision in Republic v. County Secretary Murang'a County Government Ex-parte Stephen Thiga Thuita [2004] eKLR, that:  

“My understanding of these rules, more particularly sub rule (2) thereof is that the applicant whose name and description is given in the statement of facts is the same person who should swear the affidavit or affidavits verifying those facts; the affidavit cannot be sworn by any other person.  Without such an affidavit by the applicant it cannot be said that there is an application or no proper application before court for judicial review orders.  It therefore follows that the omission of the applicant's affidavit verifying the facts on which he relies in pursuit of the relief for a judicial review order of mandamus is fatal; to his application.”

  1. On the foregoing, I find that in the instant matter, the verifying affidavit was sworn by a person other than the Applicants and without their authority.  The owners of the case have not verified the contents of the Statement in which their case is stated.   This is not a technicality that can be cured under any provision of the law but a substantial issue that goes to the core of the case.  Accordingly, I find that the verifying affidavit is fatally defective and I strike it out.  It follows that without this document which presents evidence in support of the case, the application for Motion dated 4/11/2024 for judicial review falls short of the requirements of Order 53 Rule 2 and cannot be allowed to stand.
  2. The above finding now leads me to determine the Applicants application dated 6/11/2024 which basically sought to immediately reinstate Dimba Patriots Football Club to the Football Kenya Federation’s National Super League 2024/2025. I have perused the application and I have established that DIMBA PATRIOTS FOOTBALL CLUB whom the Applicants are seeking to be reinstated as sought are not parties to these proceedings. The record does not show whether leave was sought or an order made to enjoin them to these proceedings.  The other strange person that I have encountered in that application is PATRICK KORIR, the 2nd Respondent. This court is struggling to understand how persons who were not even parties to the proceedings where orders alleged to be disobeyed were issued can be said to have disobeyed those orders. In fact, the Applicant’s have not filed any affidavits of service in regard to the service of the orders that are alleged to be disobeyed. The interim orders therefore issued in this application on 06/11/2024 must have been issued in error and on non-disclosure of material facts by the Applicants. I find this application to be frivolous and misplaced. This application too has to go down the drain with the incompetent substantive motion.
  3. Finally, there is the application dated 18/11/2024 filed by the 2nd and 3rd Respondents, DOREEN NABWIRE and PATRICK KORIR. The application sought that this court be pleased to set aside and or vacate the orders issued on the 30/10/2024 and that this court be pleased to strike out the notice of motion application dated 6/11/2024. The orders sought herein have already been spent as per my findings above, however the finding was not based on this application but on the court’s own determination upon consideration of the parties’ responses, submissions and the fact that the orders of 30/10/2024 and 6/11/2024 were made in error due to none disclosure of material facts by the Applicants.
  4. I have equally perused through the application dated 18/11/2024 and the supporting affidavit sworn in support thereof. Just as I have earlier found on the Verifying Affidavit filed by the Applicants, similarly, I find that the deponent of the supporting Affidavit herein Patrick Korir, the 1st Applicant has not exhibited a written authority by Doreen Nabwire to swear the same on her behalf. Accordingly, just like on the Applicants’ case, the supporting affidavit is invalid which makes the application dated 18/11/2024 incompetent and fit for striking out.
  5. The upshot of my consideration as above is that I find that this is not a suitable case in which this court should exercise its discretion to grant the Judicial Review Orders sought by the Applicants. Accordingly:
  6. The Notice of Motion dated 4/11/2024 is found to be incompetent in substance and is hereby dismissed, with the consequence that the stay order granted on 30/10/2024, in Machakos High Court Misc. Civil Application No. E040 of 2024 filed in this matter is hereby discharged;
  7. The Applicants application dated 6/11/2024, is hereby struck out and the orders issued on the even date are vacated unless for some other reasons it is deemed appropriate to keep Dimba Patriots Football Club in the current Football league;
  8. The application dated 18/11/2024 filed by the 2nd and 3rd Respondents, DOREEN NABWIRE and PATRICK KORIR is also hereby struck out;
  9. Each party shall bear their own costs of the application.

It is hereby so ordered.

RULING WRITTEN, SIGNED & DATED AT MACHAKOS THIS 11TH .FEBRUARY 2025  

        NOEL I. ADAGI

                  JUDGE

DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 11TH FEBRUARY 2025

In the presence of :

 N/A ....for Applicant

Mr. Muhuyu.................... for 1st & 2nd Respondents

Mr Ochieng for interested Parties

Milly Grace................ Court Assistant

Details

Delivered
Court rank
High Court
Station
Machakos High Court (High Court at Machakos High Court)
Division
High Court Div
Case type
Judicial Review
Judge
Hon.Lady Justice Noel Adagi

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