1. The application before court is a motion dated 12 April 2024 in which the applicants seek the following orders:
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1. This application be certified as urgent and service of the same be dispensed with in the first instance.
2. LEAVE be granted to the Exparte Applicants to apply for a Judicial Review Order of CERTIORARI to remove to the High Court for the purposes of quashing the arbitrary decision of the 1st and 2nd Respondents to, in effect, reinstate the National Executive Committee of the Football Kenya Federation DESPITE them having been removed and or disbanded through a legal process;
3. LEAVE be granted to the Exparte Applicants to apply for a Judicial Review Order of CERTIORARI to remove to the High Court for purposes of quashing the decision of the 1st, 2nd and 3rd Respondents jointly and severally to disburse public funds to Football Kenya Federation, and compelling the 3rd Respondent to cease any further disbursements of public funds to Football Kenya Federation unless and until there is in place a legitimate lawful National Executive Committee of Football Kenya Federation or other entity mandated pursuant and in accordance to law and legality to manage the financial affairs of Football Kenya Federation;
4. LEAVE be granted to the Exparte Applicants to apply for a Judicial Review Order of PROHIBITION against the 1st, 2nd and 3rd Respondents jointly and severally from disbursing any funds or public funds to Football Kenya Federation unless and until there is in place a legitimate lawful National Executive Committee of Football Kenya Federation or other entity mandated pursuant and in accordance to law and legality to manage the financial affairs of Football Kenya Federation;
5. LEAVE be granted to the Exparte Applicants to apply for a Judicial Review Order of MANDAMUS ordering the 1st and 2nd Respondents to direct or in any other lawful way cause the removal of the former officials of the disbanded National Executive Committee of Football Kenya Federation from the offices of Football Kenya Federation.”
The applicants have also sought an order for costs.
2. The application is expressed to be brought under Section 1A,1B and 3A of the Civil Procedure Act, cap. 21; Order 53 rules 1,2,3 and 4 of the Civil Procedure Rules and Sections 8 and 9 of the Law Reform Act, cap. 26. It is based on a statutory statement dated 12 April 2024 and an affidavit verifying the facts relied upon sworn on even date by Mr. Jeremiah Mwangi. According to these documents, the Registrar of Sports is said to have ordered for the inspection of Football Kenya Federation as a National Sports Organization. The direction for inspection is said to have been made pursuant to section 52 of the Sports Act, 2013. To facilitate the inspection, an inspection committee was appointed to look into the affairs of Federation.
3. According to the applicants, the terms of reference for the inspection committee were to identify areas of non-compliance with the Sports Act and any other relevant law; scrutinise books or records of Football Kenya Federation’s accounts and expenditure to ascertain whether they were in accordance with the Constitution; the Public Management Finance Act; and the Public Procurement and Asset Disposal Act, 2015. The committee was to establish whether there has been any misappropriation of funds advanced to Football Kenya Federation by the Government, and any international or national organization or person, among others. Upon conclusion of the exercise, an inspection report was to be made and submitted to the cabinet secretary within two weeks from the date of appointment of the inspection committee.
4. The applicants have stated that in a report dated 5 November 2021, the inspection committee found serious non-compliance issues by the Football Kenya Federation and made several recommendations including the recommendation that the Directorate of Criminal Investigation, National Intelligence Service and Ethics and Anti-Corruption Commission, carry out further investigations to establish the extent to which the misappropriation of funds in the Federation had occurred with a view to prosecuting those found culpable.
5. The committee also recommended that the current officials of the Federation be removed from office to pave way for further investigations and that a caretaker committee be appointed to manage the affairs of the Federation for a period not exceeding six months. Further, a special audit of the books of account of the Football Kenya Federation was recommended and the same was to be followed by continuous audits in the future.
6. It was also recommended that the Government does invoke Articles 17 and 58 of the FIFA Code of Ethics (2020 Edition) by informing FIFA Secretariat Investigation Chamber on the outcome of the inspection and further that no bank account would be opened by Football Kenya Federation henceforth unless authorised by the principal secretary within the six-month period the caretaker committee would be in place. It was also recommended that the Ministry of Sports, Culture and Heritage and the Sports, Arts and Social Development Fund was not to release any funds to the Federation until the previous funds were fully accounted for.
7. The committee recommended that the Government completes the public sensitization program through the registrar’s office to enable members of the public, sports organizations, professional sports bodies and persons and officials to be well versed with the Sports Act and all the other relevant laws.
8. According to the applicants, upon receiving the inspection report, the then Cabinet Secretary for Sports Amb. Amina Mohamed through a Gazette Notice No.12373 dated the 12 November, 2021, disbanded the National Executive Committee of Football Kenya Federation in line with her mandate under the Sports Act No. 25 of 2013.
9. Despite the disbandment of the Committee, on 4 November 2022, the officials of the disbanded Committee broke into the office of the Football Kenya Federation claiming that they had been reinstated by the 1st Respondent. However, the purported reinstatement was not documented through a gazette notice or any other lawful, legal instrument or mechanism known in law.
10. In a letter dated 15 February 2024 addressed to the former General Secretary and Chief Executive Officer of Football Kenya Federation, the Sports Registrar is said to have raised grave concerns about the federation’s failure to adhere to the Constitution and the law.
11. The 1st and 2nd respondents, it is alleged, have condoned the former office-bearers of the National Executive Committee Football Kenya Federation as the officials of the Federation. The Ministry of sports, on the other hand, has failed to take any action to implement the recommendations of the Inspection Committee.
12. The applicants also contend that the former office-bearers have been allowed to unlawfully occupy the offices and governance instruments of the Federation, although they are not officials of the Federation.
13. Further, this Honourable Court in Constitutional Petition N0. E473 OF 2021 Football Kenya Federation and 2 others vs Cabinet Secretary for Sports and 13 others is said to have confirmed that Amb. Amina Mohammed acting as the Cabinet Secretary for Sports had acted within her mandate in disbanding the National Executive Committee.
14. In response to the application, the 2nd interested party filed both a preliminary objection and a replying affidavit both of which are dated 2 June 2024.The preliminary objection has raised the following grounds:
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1. By virtue of Section 9(3) of the Law Reform Act and Order 53 Rule (2) of the Civil Procedure Rules the said Application is statutory barred as it has been filed more than 6 months since the impugned reinstatement of the Football Kenya Federation National Executive Committee by Hon. Ababu Namwamba as such the Application is fatally and incurably defective.
2. The Application offends the provision of section 6 of the Civil Procedure Rules, 2010 as it is sub judice SDT No E006 of 2021 and Mombasa High Court Judicial Review No. E001 of 2024.
3. The Applicants lacks locus standi to institute the instant Application as such the Application is an abuse of the Court process.
Besides the preliminary objection, the 2nd respondent also swore a replying affidavit sworn by Barry Otieno contesting the applicants’ application.
15. Being an application for leave, the court would not be concerned about the merits of the applicant’s application and, therefore, it is not necessary to relate the facts disposed in the respondents’ affidavit. In order to guard against delving into the merits of the case, Lord Diplock, IRC V National Federation of Self-Employed and Small Businesses Ltd (1982) 617, (1981) 2 ALL ER 93) suggested the following approach.
“If, on a quick perusal of the material then available, the court thinks the application discloses what might on further consideration turn out to be an arguable case in favor of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief.”
Thus, on this basis, the applicants only have to show not that their case is arguable, but that it might turn out to be, an arguable case.
16. In considering this question, my attention has been drawn to the fact the impugned decision that the applicants have described as “the arbitrary decision of the 1st and 2nd Respondents to, in effect, reinstate the National Executive Committee of the Football Kenya Federation despite them having been removed and or disbanded through a legal process” was made in the year 2022. In paragraph xvi of the statutory statement, the applicants have pleaded as follows:
“xvi. In a turn of events, on the 4th November 2022, the officials of the disbanded Football Kenya Federation broke into the office of the Federation and purported to have been reinstated by the 1st Respondent.”
17. The application before court was filed in April 2024, more than a year and a half after the impugned decision was made. Under section 9 (3) of the Law Reform Act, the application ought to have been filed within six months of the date of the decision. This provision of the law reads as follows:
9. Rules of court
(3) In the case of an application for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgment, order, decree, conviction or other proceeding or such shorter period as may be prescribed under any written law; and where that judgment, order, decree, conviction or other proceeding is subject to appeal, and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.
This section is echoed in Order 53 Rule 2 of the Civil Procedure Rules which reads as follows:
2. Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.
18. There is no doubt that in light of section 9 (3) of the Law Reform Act and Order 53(2) of the Civil Procedure Rules, the applicants’ application was made well beyond the limitation period. In the face of this clear infraction of the law by the applicants, judicial review relief of certiorari is not available to them.
19. My understanding of the prayers for prohibition and mandamus is that if leave is granted, they would be contingent upon the grant for the prayer of certiorari. In other words, without quashing the impugned decision, there would be no reason not to disburse funds to Football Kenya Federation or to compel the former officials of the federation to leave office.
20. Unlike the relief of certiorari for which the statute expressly provides for the timeline within which it should be applied for, the reliefs of prohibition and mandamus are not subject to statutory timelines. But it does necessarily follow that an applicant for these reliefs need not act promptly. One of the factors which a judicial review court will take into account in exercise of its discretion to grant or not to grant leave is the promptness with which an aggrieved party approaches court. Inexcusable or undue delay may very well deny a party a judicial review relief. It has been so held in Caswell v Dairy Produce Quota Tribunal for England and Wales [1990] 2 AC 738, [1990] 2 All ER 434, HL.
21. The applicants have not proffered any reason why it had to take them one and a half years after the impugned actions to seek the orders for judicial review reliefs. For the foregoing reasons, I hereby decline to grant leave and, therefore, the applicants’ application for leave is dismissed. It is so ordered.
Signed, dated and delivered on 20 September 2024
Ngaah Jairus
JUDGE
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1. This application be certified as urgent and service of the same be dispensed with in the first instance.
2. LEAVE be granted to the Exparte Applicants to apply for a Judicial Review Order of CERTIORARI to remove to the High Court for the purposes of quashing the arbitrary decision of the 1st and 2nd Respondents to, in effect, reinstate the National Executive Committee of the Football Kenya Federation DESPITE them having been removed and or disbanded through a legal process;
3. LEAVE be granted to the Exparte Applicants to apply for a Judicial Review Order of CERTIORARI to remove to the High Court for purposes of quashing the decision of the 1st, 2nd and 3rd Respondents jointly and severally to disburse public funds to Football Kenya Federation, and compelling the 3rd Respondent to cease any further disbursements of public funds to Football Kenya Federation unless and until there is in place a legitimate lawful National Executive Committee of Football Kenya Federation or other entity mandated pursuant and in accordance to law and legality to manage the financial affairs of Football Kenya Federation;
4. LEAVE be granted to the Exparte Applicants to apply for a Judicial Review Order of PROHIBITION against the 1st, 2nd and 3rd Respondents jointly and severally from disbursing any funds or public funds to Football Kenya Federation unless and until there is in place a legitimate lawful National Executive Committee of Football Kenya Federation or other entity mandated pursuant and in accordance to law and legality to manage the financial affairs of Football Kenya Federation;
5. LEAVE be granted to the Exparte Applicants to apply for a Judicial Review Order of MANDAMUS ordering the 1st and 2nd Respondents to direct or in any other lawful way cause the removal of the former officials of the disbanded National Executive Committee of Football Kenya Federation from the offices of Football Kenya Federation.”
The applicants have also sought an order for costs.
2. The application is expressed to be brought under Section 1A,1B and 3A of the Civil Procedure Act, cap. 21; Order 53 rules 1,2,3 and 4 of the Civil Procedure Rules and Sections 8 and 9 of the Law Reform Act, cap. 26. It is based on a statutory statement dated 12 April 2024 and an affidavit verifying the facts relied upon sworn on even date by Mr. Jeremiah Mwangi. According to these documents, the Registrar of Sports is said to have ordered for the inspection of Football Kenya Federation as a National Sports Organization. The direction for inspection is said to have been made pursuant to section 52 of the Sports Act, 2013. To facilitate the inspection, an inspection committee was appointed to look into the affairs of Federation.
3. According to the applicants, the terms of reference for the inspection committee were to identify areas of non-compliance with the Sports Act and any other relevant law; scrutinise books or records of Football Kenya Federation’s accounts and expenditure to ascertain whether they were in accordance with the Constitution; the Public Management Finance Act; and the Public Procurement and Asset Disposal Act, 2015. The committee was to establish whether there has been any misappropriation of funds advanced to Football Kenya Federation by the Government, and any international or national organization or person, among others. Upon conclusion of the exercise, an inspection report was to be made and submitted to the cabinet secretary within two weeks from the date of appointment of the inspection committee.
4. The applicants have stated that in a report dated 5 November 2021, the inspection committee found serious non-compliance issues by the Football Kenya Federation and made several recommendations including the recommendation that the Directorate of Criminal Investigation, National Intelligence Service and Ethics and Anti-Corruption Commission, carry out further investigations to establish the extent to which the misappropriation of funds in the Federation had occurred with a view to prosecuting those found culpable.
5. The committee also recommended that the current officials of the Federation be removed from office to pave way for further investigations and that a caretaker committee be appointed to manage the affairs of the Federation for a period not exceeding six months. Further, a special audit of the books of account of the Football Kenya Federation was recommended and the same was to be followed by continuous audits in the future.
6. It was also recommended that the Government does invoke Articles 17 and 58 of the FIFA Code of Ethics (2020 Edition) by informing FIFA Secretariat Investigation Chamber on the outcome of the inspection and further that no bank account would be opened by Football Kenya Federation henceforth unless authorised by the principal secretary within the six-month period the caretaker committee would be in place. It was also recommended that the Ministry of Sports, Culture and Heritage and the Sports, Arts and Social Development Fund was not to release any funds to the Federation until the previous funds were fully accounted for.
7. The committee recommended that the Government completes the public sensitization program through the registrar’s office to enable members of the public, sports organizations, professional sports bodies and persons and officials to be well versed with the Sports Act and all the other relevant laws.
8. According to the applicants, upon receiving the inspection report, the then Cabinet Secretary for Sports Amb. Amina Mohamed through a Gazette Notice No.12373 dated the 12 November, 2021, disbanded the National Executive Committee of Football Kenya Federation in line with her mandate under the Sports Act No. 25 of 2013.
9. Despite the disbandment of the Committee, on 4 November 2022, the officials of the disbanded Committee broke into the office of the Football Kenya Federation claiming that they had been reinstated by the 1st Respondent. However, the purported reinstatement was not documented through a gazette notice or any other lawful, legal instrument or mechanism known in law.
10. In a letter dated 15 February 2024 addressed to the former General Secretary and Chief Executive Officer of Football Kenya Federation, the Sports Registrar is said to have raised grave concerns about the federation’s failure to adhere to the Constitution and the law.
11. The 1st and 2nd respondents, it is alleged, have condoned the former office-bearers of the National Executive Committee Football Kenya Federation as the officials of the Federation. The Ministry of sports, on the other hand, has failed to take any action to implement the recommendations of the Inspection Committee.
12. The applicants also contend that the former office-bearers have been allowed to unlawfully occupy the offices and governance instruments of the Federation, although they are not officials of the Federation.
13. Further, this Honourable Court in Constitutional Petition N0. E473 OF 2021 Football Kenya Federation and 2 others vs Cabinet Secretary for Sports and 13 others is said to have confirmed that Amb. Amina Mohammed acting as the Cabinet Secretary for Sports had acted within her mandate in disbanding the National Executive Committee.
14. In response to the application, the 2nd interested party filed both a preliminary objection and a replying affidavit both of which are dated 2 June 2024.The preliminary objection has raised the following grounds:
“
1. By virtue of Section 9(3) of the Law Reform Act and Order 53 Rule (2) of the Civil Procedure Rules the said Application is statutory barred as it has been filed more than 6 months since the impugned reinstatement of the Football Kenya Federation National Executive Committee by Hon. Ababu Namwamba as such the Application is fatally and incurably defective.
2. The Application offends the provision of section 6 of the Civil Procedure Rules, 2010 as it is sub judice SDT No E006 of 2021 and Mombasa High Court Judicial Review No. E001 of 2024.
3. The Applicants lacks locus standi to institute the instant Application as such the Application is an abuse of the Court process.
Besides the preliminary objection, the 2nd respondent also swore a replying affidavit sworn by Barry Otieno contesting the applicants’ application.
15. Being an application for leave, the court would not be concerned about the merits of the applicant’s application and, therefore, it is not necessary to relate the facts disposed in the respondents’ affidavit. In order to guard against delving into the merits of the case, Lord Diplock, IRC V National Federation of Self-Employed and Small Businesses Ltd (1982) 617, (1981) 2 ALL ER 93) suggested the following approach.
“If, on a quick perusal of the material then available, the court thinks the application discloses what might on further consideration turn out to be an arguable case in favor of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief.”
Thus, on this basis, the applicants only have to show not that their case is arguable, but that it might turn out to be, an arguable case.
16. In considering this question, my attention has been drawn to the fact the impugned decision that the applicants have described as “the arbitrary decision of the 1st and 2nd Respondents to, in effect, reinstate the National Executive Committee of the Football Kenya Federation despite them having been removed and or disbanded through a legal process” was made in the year 2022. In paragraph xvi of the statutory statement, the applicants have pleaded as follows:
“xvi. In a turn of events, on the 4th November 2022, the officials of the disbanded Football Kenya Federation broke into the office of the Federation and purported to have been reinstated by the 1st Respondent.”
17. The application before court was filed in April 2024, more than a year and a half after the impugned decision was made. Under section 9 (3) of the Law Reform Act, the application ought to have been filed within six months of the date of the decision. This provision of the law reads as follows:
9. Rules of court
(3) In the case of an application for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgment, order, decree, conviction or other proceeding or such shorter period as may be prescribed under any written law; and where that judgment, order, decree, conviction or other proceeding is subject to appeal, and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.
This section is echoed in Order 53 Rule 2 of the Civil Procedure Rules which reads as follows:
2. Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.
18. There is no doubt that in light of section 9 (3) of the Law Reform Act and Order 53(2) of the Civil Procedure Rules, the applicants’ application was made well beyond the limitation period. In the face of this clear infraction of the law by the applicants, judicial review relief of certiorari is not available to them.
19. My understanding of the prayers for prohibition and mandamus is that if leave is granted, they would be contingent upon the grant for the prayer of certiorari. In other words, without quashing the impugned decision, there would be no reason not to disburse funds to Football Kenya Federation or to compel the former officials of the federation to leave office.
20. Unlike the relief of certiorari for which the statute expressly provides for the timeline within which it should be applied for, the reliefs of prohibition and mandamus are not subject to statutory timelines. But it does necessarily follow that an applicant for these reliefs need not act promptly. One of the factors which a judicial review court will take into account in exercise of its discretion to grant or not to grant leave is the promptness with which an aggrieved party approaches court. Inexcusable or undue delay may very well deny a party a judicial review relief. It has been so held in Caswell v Dairy Produce Quota Tribunal for England and Wales [1990] 2 AC 738, [1990] 2 All ER 434, HL.
21. The applicants have not proffered any reason why it had to take them one and a half years after the impugned actions to seek the orders for judicial review reliefs. For the foregoing reasons, I hereby decline to grant leave and, therefore, the applicants’ application for leave is dismissed. It is so ordered.
Signed, dated and delivered on 20 September 2024
Ngaah Jairus
JUDGE