MUHORONI YOUTH FC VS FOOTBALL KENYA FEDERATION AND FOOTBALL KENYA FEDERATION LEAGUES & COMPETITIONS COMMITTEE AND 2 Others

IN THE MATTER OF ARTICLES 1,2,3(1),10,20(1) (2) (3) (4), 21(1), 22, 23,24, 25(C), 27, 47, 48, 50, 258 AND 259 OF THE CONSTITUTION OF KENYA 2010

IN THE MATTER OF THE FAR ADMINSTRATVE ACTIONS ACT NO. 4 OF 2015

IN THE MATTER OF THE SPORTS ACT NO.25 OF 2013

IN THE MATTER OF THE FOOTBALL KENYA FEDERATION CONSTITUTION, 2017

IN THE MATTER OF THE FOOTBALL KENYA FEDERATION RULES AND REGULATIONS GOVERNING KENYAN FOOTBALL, 2019

FACTS

1. The petitioner and the interested party were on 9.10.2023 involved in a 2023 Football Kenya Federation Premier League(FKFPL) Match organized by the 2^nd respondent and played in the Muhoroni Stadium, Muhoroni. The said match aborted in the 89 minute or thereabouts due to crowd trouble allegedly occasioned by the petitioner’s Supporters.
2. Consequently, on 10.10.2023 the 2^nd respondent opened and presided over a virtual investigatory meeting into the circumstances under which the said match was called off and invited the petitioner and the Interested Party to give their versions of the events.
3. The 2^nd Respondent retreated for deliberations on the matter, and ruled that;
4. The match is awarded to KCB FC on 3 points, 2 goals basis
5. Muhoroni Stadium is banned from hosting the next(5) Muhoroni Youth FC home matches and shall play the said matches behind closed doors.
6. The Chairperson of Muhoroni Youth FC Mr. Moses Adagala is banned and barred from attending the next (3) Muhoroni Youth matches.
7. Muhoroni Youth FC is hereby ordered to pay a fine of KES300,000.
8. Failure to adhere to the above will attract further sanctions
9. The Petitioner herein was aggrieved by the process in which the 2^nd respondent carried out in reaching to the ruling above, therefore, it approached this court by way of a constitutional petition dated 12^th day of October, 2023. It simultaneously filed a notice of motion of even dated under a certificate of urgency .
10. The petition filed by the Petitioner is concerned with the constitutionality and or legality of the actions of the 1^st and the 2^nd Respondents in contravention of Articles 47 and 50 of the Constitution of Kenya, 2010 and sections 3, 4, 5, 6, and 7 of the Fair Administrative Actions Act No. 4 of 2015, making the decision of 10.10,2023 without any lawful basis as the said 1^st and or the 2^nd Respondents inter alia , ignored, refused, and failed to:
11. Provide the Petitioner prior and adequate notice or otherwise inform the Petitioner of the charges preferred against it or its members, officials and supporters,
12. Accord the Petitioner an opportunity to be heard and or to make representation in response to the said charges,
13. Accord the petitioner reports, statements, submissions, information, materials and other evidence that were relied upon in making the decision and or that was necessary to assist the petitioner prepare its defense,
14. Accord the Petitioner a notice of and an opportunity to cross-examine any witness who gave adverse evidence against it
15. Accord the petitioner an opportunity to request for an adjournment, where necessary to ensure fair trial,
16. Consider or otherwise take into account all relevant and material facts and other considerations,
17. Be impartial as they were judges in their own causes in on a short notice inviting the petitioner and the interested party to on a virtual Investigatory meeting of 10.10.2023 but nevertheless making the decision subject hereof on account of the said investigations,
18. The Petitioners further contended that the 1^st and 2^nd Respondent in contravention of Articles 47, 48 and 50 of the Constitution of Kenya, 2010 and Sections 3, 4, 5, 6 and 7 of the Fair Administrative Actions Ac No. 4 of 201 making the Decision/Ruling of 11.8.2023 that was also:
19. An outright abuse of power and a bad precedent,
20. Wanton abuse of discretion
21. Unreasonable and unfair
22. Made in bad faith malicious and biased
23. Premised on a procedure that was wrong and unfair
24. The 1^st and 3^rd Respondents in contravention of Articles 47, 48 and 50 of the Constitution of Kenya, 2010, requiring the Petitioner to pay Kshs.100,000 Appeal Fees and or any unspecified Extra Fees before its appeal could be received or otherwise admitted.
25. The 1^st and or 3^rd Respondents in contravention of Articles 27 of the Constitution of Kenya, 2010, discriminating against the Petitioner in hitherto declining refusing and or neglecting to hear its Appeal.
26. The Petitioner vide their submissions dated 27^th day of December 2023 sought the following RELIEFS:-
27. A declaration be and is hereby issued that the Petitioner’s right to Fair hearing, as pertains the Ruling of the 1^st and the 2^nd respondent of 10.10.2023, was infringed by the 1^st and or 2^nd Respondents in contravention of Article 50 of the Constitution of Kenya, 2010 and hence invalid.
28. A declaration be and is hereby issued that the Petitioner’s right to a Fair Administrative Action, as pertains the ruling of the 1^st and or 2^nd Respondent of 10.10.2023, was infringed in contravention of Article 47 of the Constitution of Kenya, 2010 and hence invalid.
29. A declaration be and is hereby issued that the ruling of the 1^st and or 2^nd respondents of 10.10.2023, is unconstitutional in view of the declaration (i) and (ii) above.
30. An order of permanent injunction do issue restraining the respondents by themselves of by their servants and or agents from giving effect to the 1^st and or 2^nd Respondent’s decision of 10.10.2023.
31. General Damages
32. Costs of this Petition to be awarded to the petitioner.
33. The Respondents and the Interested Party haven’t filed any response to the Petition hence the same is unopposed.

ISSUES FOR DETERMINATION

1. Whether the petition satisfies particularity and precision threshold required of constitutional petitions.
2. Whether the 1^st and or the 2^nd Respondents infringed on the Petitioner’s right to fair hearing as pertains their ruling of 10.10.2023, in contravention of Article 50 of the Constitution of Kenya,2010.
3. Whether the Petitioner’s right to a Fair Administrative Action, as pertains the ruling of the 1^st and or 2^nd respondent of 10.10.2023, was infringed in contravention of Article 47 of the Constitution of Kenya, 2010.
4. Whether the Petitioner is entitled to an award of General Damages.
5. I will hence deal with the issues sequentially.

DETERMINATION AND ANALYSIS

1. Whether the petition satisfies particularity and precision threshold required of constitutional petitions.
2. This issue invites this court to abide by the long-standing principle that a petitioner must identify the constitutional entitlement threatened, infringed or violated and to demonstrate with some level of precision on the manner of violation as to enable the respondent to mount a defense.
3. The said position is upheld in Miscellaneous Criminal Application 4 of 1979, Anarita Karimi Njeru v Republic [1979] eKLR when the court remarked as follows: -… if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed…
4. I am hereby satisfied that the Petitioner has met the threshold of a constitutional petition, in its submissions it has stated the particular constitutional entitlements that have been infringed and it has demonstrated with precision, the manner in which those constitutional entitlements have been infringed.

b.Whether the 1^st and or the 2^nd Respondent infringed on the Petitioner’s right to fair hearing as pertains their ruling of 10.10.2023, in contravention of Article 50 of the Constitution of Kenya,2010.

1. The Petitioner claims that its right to Fair trial under Article 50(2) of the Constitution of Kenya, 2010 was violated. The petitioner claims that the 1^st and or the 2^nd respondent, failed to accord it the opportunity to be heard and or make representation in response to the said charges also they did not consider all the relevant and material facts plus other considerations.
2. It also claims that the 1^st and or the 2^nd respondent  failed to accord it the reports, statements, submissions, information, materials and other evidence that were relied upon in making the decision and or what was necessary to assist the Petitioner prepare its defense and this is in contravention to Article 50(2)(j) of the Constitution of Kenya, 2010.
3. In the case of David Ogolla Okoth v Chief Magistrate Court, Kibera & 2 others[2016] eKLR. The essence of Article 50(2)(j) of the Constitution was stated that, it is to assist the accused person to exercise his or her fair trial rights. Access to evidence assists the accused in the preparation of his defense and to identify if at all any vindicatory facts. Where the accused person needs to access evidence the trial court has the direction to make orders for such access depending on the stage of the trial.
4. The Petitioner further contended that the 1^st and or the 2^nd Respondent failed to be impartial and this is evident since the respondents were judges in their own causes. They were the complainants and in the alleged incident that led to their impugned decision, thus they might have been biased by making the ruling of 10.10.2023.
5. With regards to the Petitioner’s submissions I am convinced that it’s right to Fair hearing was infringed by the petitioners.
6. Whether the Petitioner’s right to a Fair Administrative Action, as pertains the ruling of the 1^st and or 2^nd respondent of 10.10.2023, was infringed in contravention of Article 47 of the Constitution of Kenya, 2010.
7. The Petitioner contended that the ruling of the 1^st and or the 2^nd respondent of 10.10.2023 was an outright abuse of power, wanton abuse of discretion, unreasonable and unfair, made in bad faith malicious and biased, premised on a procedure that was wrong and unfair.
8. The 1^st and or 2^nd respondents did not give the petitioner and or its chairman prior and adequate notice or otherwise inform the petitioner of the charges preferred against it or its members, officials and or supporters. This was clearly in contravention to the stipulations of article 47 of the Constitution of Kenya, 2010 which stipulates that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. It is clear that the process of coming to the decision of 10.10.2023 was not procedurally fair.
9. The petitioner has submitted and explained how its right to Fair Administrative Action has been violated and I am satisfied that truly it was infringed.
10. Whether the Petitioner is entitled to an award of General Damages.
11. In the case of  Peter Ndegwa Kiai t/a Pema Wines & Spirits v Attorney General & 2 others (Civil Appeal 243 of 2017) [2021] KECA 328 (KLR) , it was stated that the guiding principle to be gleaned from these decisions is that an award of general damages in constitutional petitions is discretionary and will depend on the circumstances of each case, and can indeed be granted as compensation for proven loss.
12. The Petitioner herein seeks an award of general damages for the infringement of her rights provided for in article 47 and 50 of the Constitution of Kenya, 2010.  Accordingly, one of the factors that should be considered while making an award of general damages, as seen in the case of Zipporah Seroney & 5 others v Attorney General [2020] eKLR is:

“124.  Taking into account the cited principles, and considering that the award of general damages is not a mathematical exercise, the best guide is the awards previously made to persons whose constitutional rights were violated in circumstances similar to that of the deceased. This is the only way of determining a just and reasonable compensation considering that the parties did not make any proposals in their submissions on what they think should be the appropriate damages in this case.”

1. Further in the case of  Peter M. Kariuki v Attorney General [2014] eKLR , the court stated that : “On the purpose of awards of damages, the Supreme Court of Uganda in Cuossens v Attorney General, (1999)1 EA 40, noted that the object of an award of damages is to give an injured party compensation for the damage, loss or injury that he has suffered and that the general rule regarding the measure of damages is that the injured party should be awarded a sum of money as would put him in the same position as he would have been if he had not sustained the injury.  Where the injury in question is non-pecuniary loss, assessment of damages does not entail arithmetical calculation because money is not being awarded as a replacement for other money; rather it is being awarded as a substitute for that which is generally more important than money, and that is the best that a court can do in the circumstances.”
2. Guided by the authorities cited above, I am alive to the fact that the petitioner is complaining of the infringement of his right to fair hearing which incorporates the principles of natural justice and also infringement of its right to Fair administrative action. On this violation of the Petitioner’s rights I find that the Petitioner is entitled to the award of General damages. I therefore, award it an award of KShs250,000.

CONCLUSION

1. I find that there is merit in this Petition and I accordingly enter judgement for the Petitioner against the Respondents jointly and severally as follows:
2. A declaration that the Petitioner’s fundamental rights and freedoms as enshrined under Articles 50 and 47 of the constitution of Kenya 2010 have been contravened and infringed upon by the respondents.
3. The ruling of the 1^st and or the 2^nd Respondents is unconstitutional and invalid thus should not be executed.
4. General damages for violation of the rights to fair hearing and Right to Fair Administrative Action is made in the sum of Kshs.400,000/-
5. Costs to the Petitioner.

Dated, signed and delivered at Kisumu this 31st day of May 2024