1. This is a ruling to the Application dated 29th February, 2024 wherein the Applicant seeks for orders inter alia that;
a) …Spent
b) That leave be granted to the Applicant to institute judicial review for orders of Certiorari against the 1st Respondent's decision and an order of Prohibition against the 2nd and 3rd Respondents barring them from attending the 5th Respondent's committee meeting.
c) That the leave granted do operate as stay of execution of 1st Respondent's decision in the case no E031 of 2023. Samuel Mugata Nyangweso vs Philip Maiyo & 4 Others.
d) Costs of the Application.
The Applicant's Case;
2. It is argued that before granting leave to file judicial review, the court must ascertain that the following three principals have been met:
a) The Application discloses a prima facie case,
b) The Applicant has locus standi
c) The Application is not time barred.
3. The first principle the court should, through a mere cursory or a quick perusal of evidence before it establishes that not merely arguable case has been set out but also it one with reasonable chance or possibility of success on inter parties hearing.
4. Reliance is placed in the case of Republic vs. Land Disputes Tribunal Court Central Division and Another Ex Parte Nzioka[20061 1 EA 321 held;
"That leave should be granted, if on the material available the court considers, without going into the matter in depth, that there is an arguable case for granting leave"
5. In Republic v County Council of Kwale & Another Ex Parte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996 held that;
“Leave may only be granted if on the material available the court is of the view, court establishes that there is an arguable case for granting the relief claimed by the Applicant whose test is a case fit forfurther investigation at a full inter parties hearing of the substantive Application for judicial review.”
6. Similarly, in Republic v National Transport & Safety Authority & 10 others [20141 eKLR, in Kihingo Village (WaridiGardens) Management Limited v Attorney General & 2 others (Judicial Review 169 of 2023) [20231 KEHC 26714 (KLR) (Judicial Review) (20 December 2023) (Ruling) in granting leave to the Applicant to file judicial review held that;
“I have carefully perused through the record and submissions a prima facie case is established to warrant the grant ofthe leave sought.”
7. He submits that the Applicant vide his verifying affidavit dated 29th February, 2024 has availed the evidence for consideration by this honorable court and specifically that the 1stRespondent’s decision was marred with illegality and unreasonableness that requires further consideration.
8. He submits that a perusal of the order and ruling annexed therein discloses an arguable prima facie case.
9. On the issue of locus standi he relies in the case of Kihiu Mwiri Farmers Co Ltd vs The Registrar General [2003] eKLR where the court in answering the question of locus standi stated that;
“The Applicant has to establish that he or she has sufficient interest or stake in the matter which the Application relates.”
10. In the instant suit he submits that he Applicant herein was the petitioner in a sport tribunal case number, E031 OF 2023- Samuel Mugata Nyangeso vs Philip Maiyo & 4 others whose decision herein and as such he has the requisite locus standi to institute and sustain judicial review as he has sufficient interest in this Application.
11. On limitation he relies on Order 53 Rule 1, 2and 3 of the Civil Procedure Rules as read with Section 9 (3) of the Law Reform Act which provides for the time limits within which an Application for judicial review can be filed.
12. Order 53 Rule 1 of the Civil Procedure Rules provides that: -
“Leave shall be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, unless the Application for leave is made not later than 6 months after the date of the proceedings or such shorter period as may be described by any act; and where the proceeding is subject to appeal and a time is limited by the law for the bringing of the appeal, the judge may adjourn the Application for leave until the appeal is determined or the time.”
13. Section 9(3) of the Law Reform Act provides that: -
“In the case of an Application for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings, for 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 thatjudgment, order, decree, conviction or other proceedings or such period as may be prescribed under any written law .....”
14. In Raila Odinga & 6 Others vs. Nairobi City Council Nairobi HCCC No. 899 of 1993: 11990-19941 EA 482 it was held that;
“Order 53 contains the procedural rules made in pursuance of s. 9(1) of the Law Reform Act. S. 9(2) of that Act states that the rules made under subsection (1) may prescribe that an Application for mandamus, prohibition and certiorari shall be made within six months or such shorter period as may be prescribed. Thus, it will be seen that on one hand s. 9(2) of the Act enjoins that the court may make rules prescribing that Applicationfor mandamus prohibition and certiorari shall be made within six months or such shorter period as may be prescribed by the rules... The parliament in its wisdom has imposed this absolute period of six months and it is the Parliament alone which can amend it. The Court's duty is to give effect to the law as it exists... Thus an Application for judicial review, may it before an order of mandamus, prohibition or certiorari should be made promptly and in any event within a maximum period of six months from the date when the ground for the Application arose...”
15. Reliance is also placed in the case of Republic v Minister for Lands & another Ex-ParteCatherine Mateta Musinga [2021] eKLR Hon T. Muturi in granting leave to the ex-parte Applicant allowed a chamber summons Application which was filed five days before the lapse of statutory time limit and held that; ‘I find that the Application was filed within the stipulated time.’
16. The Applicant herein seeks to challenge the ruling of the 1st Respondent delivered on 20th February, 2024 dismissing his petition through an Application which was filed on the 29th February, 2024 which is 9 days from the date of the impugned ruling.
17. He submits that the Application is not statutory time barred as the same was filed 9 days after the delivery of the impugned ruling.
18. The Applicant sought for order of stay of execution of the 1st Respondent's decision of 20th February, 2024 specifically preventing the 2nd to 4th Respondents from participating in the 5th Respondent's committee meetings.
19. The rationale for grant of stay of execution was clearly set out in Taib A. Taib v The Minister for Local Government & Others Mombasa HCMISCA. No. 158 of 2006 where the court held that;
“The purpose of a stay order in judicial review proceedings is to prevent the decision maker from continuing with the decision making process if the decision has not been made or to suspend the validity and implementation of the decision that has been made (Emphasis Ours) and it is not limited to judicial or quasi-judicial proceedings as it encompasses the administrative decision making process being undertaken by a public body such as a local authority or minister and the implementation of thedecision of such a body if it has been taken.”
20. In the case of Republic v County Government of Embu Ex parte Peterson Kamau Muto T/A Embu Medical and Dental Clinic & 6 others [20221 eKLR held that;
“In the present Application, the action of the Respondent's employees to enter the premises of the ex parte Applicants and demand payment of the business permit fees and unlawfully carting away 1st ex parte Applicant's stethoscope and auroscope kit, is a clear indication that the said action is still continuing to be implemented. There is need therefore to prevent the implementation of the said decision until the legality or theRespondent's decision is established,(Emphasis Ours) in light of the prejudice pleaded by the ex-parte Applicants. It is my view therefore that the order of stayought to be issued.”
21. Leave granted should operate as stay of implementation of the 1st Respondent's decision by the 2nd to the 4th Respondents who may proceed to attend the committee meetings based on the decision whose legality is yet to be established.
22. On costs the Applicant argues that Section 27 of the Civil Procedure Act leaves no doubt that the award of costs is a discretionary power. The section provides;
“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.
(2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.”
The 3rd Respondent’s Case;
23. The 3rd Respondent swore a replying affidavit on his own behalf and on behalf of the 2nd and 4th Respondents with their authority.
24. It is their case that the elections held by the 5thRespondent were conducted in accordance with the KVF Constitution, the Sports Act, and relevant electoral guidelines.
25. According to them, the process was transparent and participatory, and all candidates were subjected to the same rules and standards.
26. They argue that the Applicant participated in the said elections, wherein The Applicant came in fifth position and therefore could not qualify for any elective seat under the said framework.
27. The Applicant’s grievance was presented before the 1st Respondent (the Sports Disputes Tribunal) in SDT Case No. E031 of 2023 that culminated with a decision on 20th February 2024, dismissing the Applicant’s petition.
28. The decision was reasoned, lawful, and rendered within the 1stRespondent’s jurisdiction.
29. It is their case that The 1st Respondent considered all evidence presented, and its findings were supported by both law and fact. There was no error of law or irrationality as alleged by the Applicant.
30. The Applicant has not presented any evidence that disclose any procedural or jurisdictional error sufficient to meet the threshold for judicial review relief.
31. It is argued that Applicant’s case is conclusory, speculative, and not supported by any admissible evidence showing abuse of discretion, bias, or procedural unfairness on the part of the 1st Respondent.
32. The Applicant’s approach improperly seeks to convert this Judicial Review Application into an appeal.
33. He re-argues the facts, challenges the correctness of the Tribunal’s decision, and invites this Honourable Court to reweigh evidence and make fresh findings.
34. The prayer for prohibition against the 2nd and 3rdRespondents from attending NEC meetings and receiving allowances is punitive, disruptive and unjustified.
35. These officials were lawfully elected, and there is no subsisting order nullifying their election.
36. The continued exclusion of 2nd, 3rd and 4thRespondents from their NEC functions will severely undermine the operations of the 5thRespondent which include:
(i) Women World Championship which is slated for August 2025
(ii) National League – both divisions one and two (2024/25 season) which is nearing its end.
(iii) CAVB Continental Beach Volleyball
(iv) CAVB age group competitions - Under 16 and Under 20 for both gender
(v) Scouting for the national age group teams during the Primary and Secondary Schools championships. Their exclusion will adversely affect the smooth execution and success of these critical programs.
The 2nd to 5th Respondents Case;
37. The 2nd to 5th Respondents raised the following grounds of opposition:
1) The Applicant lacks the legal standing to institute these proceedings, having failed to attend or participate in the NEC meeting of 29th March 2025, despite receiving proper notice. His absence cannot be the basis for invalidating decisions made through a lawful and democratic process.
2) The Application improperly invites the Court to interfere with the internal affairs of the 5th Respondent, a private association, contrary to well-establishedprinciples that bar judicial review of internal governance matters where no public law element or statutory breach is demonstrated.
3) The NEC decisions were made during a properly convened meeting with full quorum, in accordance with the KVF Constitution and Article 5.2 of the NOCK Election Rules and Regulations 2025, which permit either the President or Secretary General to be nominated as voting delegate. The Applicant's exclusion as a nominee does not render the process unlawful.
4) The Applicant has not demonstrated any breach of law, procedural impropriety, irrationality, or abuse of power to warrant the Court's intervention under judicial review jurisdiction as contemplated by the Fair Administrative Action Act, 2015 and relevant case law.
5) The Application is frivolous, vexatious and amounts to an abuse of the court process. It has been brought in bad faith with the intention of frustrating a valid electoral process and paralyzing the operations of the 5th Respondent ahead of the scheduled NOCK elections.
38. They submit that in the present matter, the Applicant has brought the Application for judicial review solely under Order 53 of the Civil Procedure Rules, without alleging any violation of constitutional rights under Article 47 of the Constitution or invoking the Fair Administrative Action Act, 2015.
39. Consequently, they submit that the Court's jurisdiction is confined to reviewing the lawfulness, procedural propriety, and jurisdictional validity of the Sports Disputes Tribunal's (SDT) decision.
40. It cannot engage in a merits based assessment of whether the Applicant ought to have been
41. The Tribunal had duly adjudicated the matter and found that the 2nd, 3rd and 4th Respondents were properly elected in accordance with the electoral rules of the Kenya Volleyball Federation (KVF), which recognize the top three vote-getters as the validly elected Executive Committee Members.
42. The Applicant, having placed a distant fifth, had no legal entitlement or legitimate expectation to be declared elected.
43. They submit that the Respondents have since been integrated into the KVF's National Executive Committee, which is actively engaged in organizing and implementing critical activities all of which would be severely disrupted by any attempt to revisit or suspend their positions.
44. It is submitted that in these circumstances, there is no legal basis for granting the prerogative orders of certiorari or prohibition, and doing so would undermine both the finality of a duly rendered adjudication and the effective functioning of a national sporting body.
45. They submit that The Sports Disputes Tribunal (SDT) is established under Section 55 of the Sports Act and is vested with jurisdiction to hear disputes relating to elections, governance, and the internal affairs of sports organizations, as set out under Section 58.
46. The present matter, the Applicant properly invoked the SDT's jurisdiction, fully participated in the proceedings, and was afforded a fair hearing in accordance with the principles of natural justice. The SDT thereafter rendered a lawful and reasoned decision within the scope of its statutory mandate.
47. They submit that there is no allegation by the Applicant that the SDT:
a) Acted ultra vires its statutory powers;
b) Violated the principles of natural justice;
c) Denied any party the right to be heard; or
d) Committed any manifest error of law.
48. It is submitted that the Applicant has not satisfied the legal threshold for the grant of an order of certiorari as set out in Republic v Kenya National Examinations Council ex parte Gathenji 17997] eKLR and as codified under Section 7(2) of the Fair Administrative Action Act, 2015.
49. The Court of Appeal has affirmed that an order of certiorari can only issue to quash a decision made without or in excess of jurisdiction, or where there has been a breach of natural justice or other fundamental legal error.
50. In Republic v Kenya Forest Service Exparte Clement Kariuki [2073] eKLR,courts ought not to interfere with decisions of competent statutory bodies merely on account of dissatisfaction with the outcome, especially where due process was followed and the parties were given a fair and adequate opportunity to present their case.
51. Judicial review is a discretionary remedy, not one granted as of right. Even where the grounds for. issuance of an order, such as certiorari are established, the court may nonetheless refuse to grant it if doing so would cause undue prejudice or offend the public interest.
52. This principle is well anchored in Halsbury'sLaws of England, 4th Edition, Vol. Il at page 805 paragraph 1 505, which states:
"Certiorari is a discretionary remedy which a court may refuse to grant even when the requisite grounds for ifs grant exist. The court has to weigh one thing against another to see whether or not the remedy is the most efficacious in the circumstances obtaining. The discretion of the court being a judicial one must be exercised on the basis of evidence and sound legal principles."
53. The submit that in the present case, the 2nd, 3rd, and 4th Respondents were duly elected into the National Executive Committee (NEC), and the Kenya Volleyball Federation (KVF) has since assumed critical national duties, including:
a) Women World Championship which is slated for August 2025
b) National League — both divisions one and two (2024/25 season) which is nearing its end.
c) CAVB Continental Beach Volleyball
d) CAVB age group competitions - Under 1 6 and Under 20 for both gender
e) Scouting for the national age group teams during the Primary and Secondary Schools championships.
54. Granting judicial review orders to disturb the status quo would effectively paralyze the current NEC's functioning, disrupt national and international sports programs, and undermine Kenya's global commitments in the sport.
55. In Republic v National Employment Authority ex parte Middle East Consultancy Services Ltd [20781 eKLRdeclined to grant judicial review orders that would have disrupted ongoing government programs and caused administrative confusion. That reasoning applies equally here this court must consider the real-world consequences of the relief sought.
56. Reliance is placed in Petition No. 13 (EOT9) of 2020 — Kenya Railways Corporation & Others v Okiya Omtatah & Others, the Supreme Court emphasized the following principles:
a) Justice should not be defeated by procedural technicalities, pursuant to Article 159(2) (d) of the Constitution;
b) Finality of duly adjudicated proceedings must be respected to uphold legal certainty;
c) Judicial restraint is warranted where no demonstrable injustice or prejudice is established.
57. These principles apply with full force to the present case. The decision of the Sports Disputes Tribunal (SDT) was made lawfully, with full participation by all parties, including the Applicant. No cogent legal basis has been shown to justify overturning that decision. Exercising the court's discretion in favour of the Applicant would not only undermine the legitimacy of the ongoing NEC, but also risk destabilizing the governance of volleyball in Kenya at a time when stability is most needed.
Analysis and Determination;
58. The applicable law on leave to commence judicial review proceedings is Order 53 Rule 1of the Civil Procedure Rules, which provides that no Application for judicial review orders should be made unless leave of the court was sought and granted.
The reason for the leave was explained by Waki J (as he then was), in Republic v County Council of Kwale & Another Ex Parte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996 as follows:
“The purpose of Application for leave to apply for judicial review is firstly to eliminate at an early stage any Applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the Applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an Application for judicial review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived…Leave may only be granted therefore if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the Applicant the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive Application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised judicially”.
59. It is also trite that in an Application for leave, the Court ought not to delve deeply into the arguments of the parties, but should make cursory perusal of the evidence before court and make the decision as to whether an Applicant’s case is sufficiently meritorious to justify leave.In Uwe Meixner & another v Attorney General [2005] eKLR, it was held that the leave of court is a prerequisite to making a substantive Application for Judicial Review with a view to filtering out frivolous Applications and the grant or refusal involves an exercise of judicial discretion and the test to be applied is whether the Applicant has an arguable case. Thus, the first step in the Judicial Review procedure involves the mandatory "leave stage." At this stage an Application for leave to bring Judicial Review proceedings must first be made. The leave stage as held by Waki J is used to identify and filter out, at an early stage, claims which may be trivial or without merit.
60. This court is satisfied that the Applicant’s grievance was presented before the 1stRespondent (the Sports Disputes Tribunal) in SDT Case No. E031 of 2023.
61. The tribunal rendered a decision on 20thFebruary 2024, dismissing the Applicant’s petition. It gave reasons for its finding.
62. This Court is not sitting on appeal as a result of which it lacks the jurisdiction to assess nor evaluate the discretion that was invoked in arriving at the impugned decision.
63. The 1stRespondent’s acted within its jurisdiction.
64. The 1st Respondent considered all evidence presented, and its findings were supported by both law and fact.
65. The Applicant was given a chance to be heard.
66. The Applicant also sought an order for prohibition. Having found that the Applicant is not entitled to the order for leave to initiate review proceedings the prayer for prohibition falls by the wayside.
Costs;
67. In determining the issue of costs, this court is guided by the Supreme Court in the case of Jasbir Singh Rai & Others vs. TarlochanRai & Others observed that;
“In the classic common law style, the courts have to proceed on a case by case basis, to identify "good reasons" for such departure. An examination of evolving practices on this question shows that, as an example, matters in the domain of public interest litigation tend to be exempted from award of costs…”
68. The Applicant is not successful in the Application as a result of which he is not entitled to costs and is so hold.
Disposition;
69. The Applicant has not made out a prima case that can justify the grant of the orders sought.
Order;
The Application is dismissed with costs.
a) …Spent
b) That leave be granted to the Applicant to institute judicial review for orders of Certiorari against the 1st Respondent's decision and an order of Prohibition against the 2nd and 3rd Respondents barring them from attending the 5th Respondent's committee meeting.
c) That the leave granted do operate as stay of execution of 1st Respondent's decision in the case no E031 of 2023. Samuel Mugata Nyangweso vs Philip Maiyo & 4 Others.
d) Costs of the Application.
The Applicant's Case;
2. It is argued that before granting leave to file judicial review, the court must ascertain that the following three principals have been met:
a) The Application discloses a prima facie case,
b) The Applicant has locus standi
c) The Application is not time barred.
3. The first principle the court should, through a mere cursory or a quick perusal of evidence before it establishes that not merely arguable case has been set out but also it one with reasonable chance or possibility of success on inter parties hearing.
4. Reliance is placed in the case of Republic vs. Land Disputes Tribunal Court Central Division and Another Ex Parte Nzioka[20061 1 EA 321 held;
"That leave should be granted, if on the material available the court considers, without going into the matter in depth, that there is an arguable case for granting leave"
5. In Republic v County Council of Kwale & Another Ex Parte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996 held that;
“Leave may only be granted if on the material available the court is of the view, court establishes that there is an arguable case for granting the relief claimed by the Applicant whose test is a case fit forfurther investigation at a full inter parties hearing of the substantive Application for judicial review.”
6. Similarly, in Republic v National Transport & Safety Authority & 10 others [20141 eKLR, in Kihingo Village (WaridiGardens) Management Limited v Attorney General & 2 others (Judicial Review 169 of 2023) [20231 KEHC 26714 (KLR) (Judicial Review) (20 December 2023) (Ruling) in granting leave to the Applicant to file judicial review held that;
“I have carefully perused through the record and submissions a prima facie case is established to warrant the grant ofthe leave sought.”
7. He submits that the Applicant vide his verifying affidavit dated 29th February, 2024 has availed the evidence for consideration by this honorable court and specifically that the 1stRespondent’s decision was marred with illegality and unreasonableness that requires further consideration.
8. He submits that a perusal of the order and ruling annexed therein discloses an arguable prima facie case.
9. On the issue of locus standi he relies in the case of Kihiu Mwiri Farmers Co Ltd vs The Registrar General [2003] eKLR where the court in answering the question of locus standi stated that;
“The Applicant has to establish that he or she has sufficient interest or stake in the matter which the Application relates.”
10. In the instant suit he submits that he Applicant herein was the petitioner in a sport tribunal case number, E031 OF 2023- Samuel Mugata Nyangeso vs Philip Maiyo & 4 others whose decision herein and as such he has the requisite locus standi to institute and sustain judicial review as he has sufficient interest in this Application.
11. On limitation he relies on Order 53 Rule 1, 2and 3 of the Civil Procedure Rules as read with Section 9 (3) of the Law Reform Act which provides for the time limits within which an Application for judicial review can be filed.
12. Order 53 Rule 1 of the Civil Procedure Rules provides that: -
“Leave shall be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, unless the Application for leave is made not later than 6 months after the date of the proceedings or such shorter period as may be described by any act; and where the proceeding is subject to appeal and a time is limited by the law for the bringing of the appeal, the judge may adjourn the Application for leave until the appeal is determined or the time.”
13. Section 9(3) of the Law Reform Act provides that: -
“In the case of an Application for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings, for 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 thatjudgment, order, decree, conviction or other proceedings or such period as may be prescribed under any written law .....”
14. In Raila Odinga & 6 Others vs. Nairobi City Council Nairobi HCCC No. 899 of 1993: 11990-19941 EA 482 it was held that;
“Order 53 contains the procedural rules made in pursuance of s. 9(1) of the Law Reform Act. S. 9(2) of that Act states that the rules made under subsection (1) may prescribe that an Application for mandamus, prohibition and certiorari shall be made within six months or such shorter period as may be prescribed. Thus, it will be seen that on one hand s. 9(2) of the Act enjoins that the court may make rules prescribing that Applicationfor mandamus prohibition and certiorari shall be made within six months or such shorter period as may be prescribed by the rules... The parliament in its wisdom has imposed this absolute period of six months and it is the Parliament alone which can amend it. The Court's duty is to give effect to the law as it exists... Thus an Application for judicial review, may it before an order of mandamus, prohibition or certiorari should be made promptly and in any event within a maximum period of six months from the date when the ground for the Application arose...”
15. Reliance is also placed in the case of Republic v Minister for Lands & another Ex-ParteCatherine Mateta Musinga [2021] eKLR Hon T. Muturi in granting leave to the ex-parte Applicant allowed a chamber summons Application which was filed five days before the lapse of statutory time limit and held that; ‘I find that the Application was filed within the stipulated time.’
16. The Applicant herein seeks to challenge the ruling of the 1st Respondent delivered on 20th February, 2024 dismissing his petition through an Application which was filed on the 29th February, 2024 which is 9 days from the date of the impugned ruling.
17. He submits that the Application is not statutory time barred as the same was filed 9 days after the delivery of the impugned ruling.
18. The Applicant sought for order of stay of execution of the 1st Respondent's decision of 20th February, 2024 specifically preventing the 2nd to 4th Respondents from participating in the 5th Respondent's committee meetings.
19. The rationale for grant of stay of execution was clearly set out in Taib A. Taib v The Minister for Local Government & Others Mombasa HCMISCA. No. 158 of 2006 where the court held that;
“The purpose of a stay order in judicial review proceedings is to prevent the decision maker from continuing with the decision making process if the decision has not been made or to suspend the validity and implementation of the decision that has been made (Emphasis Ours) and it is not limited to judicial or quasi-judicial proceedings as it encompasses the administrative decision making process being undertaken by a public body such as a local authority or minister and the implementation of thedecision of such a body if it has been taken.”
20. In the case of Republic v County Government of Embu Ex parte Peterson Kamau Muto T/A Embu Medical and Dental Clinic & 6 others [20221 eKLR held that;
“In the present Application, the action of the Respondent's employees to enter the premises of the ex parte Applicants and demand payment of the business permit fees and unlawfully carting away 1st ex parte Applicant's stethoscope and auroscope kit, is a clear indication that the said action is still continuing to be implemented. There is need therefore to prevent the implementation of the said decision until the legality or theRespondent's decision is established,(Emphasis Ours) in light of the prejudice pleaded by the ex-parte Applicants. It is my view therefore that the order of stayought to be issued.”
21. Leave granted should operate as stay of implementation of the 1st Respondent's decision by the 2nd to the 4th Respondents who may proceed to attend the committee meetings based on the decision whose legality is yet to be established.
22. On costs the Applicant argues that Section 27 of the Civil Procedure Act leaves no doubt that the award of costs is a discretionary power. The section provides;
“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.
(2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.”
The 3rd Respondent’s Case;
23. The 3rd Respondent swore a replying affidavit on his own behalf and on behalf of the 2nd and 4th Respondents with their authority.
24. It is their case that the elections held by the 5thRespondent were conducted in accordance with the KVF Constitution, the Sports Act, and relevant electoral guidelines.
25. According to them, the process was transparent and participatory, and all candidates were subjected to the same rules and standards.
26. They argue that the Applicant participated in the said elections, wherein The Applicant came in fifth position and therefore could not qualify for any elective seat under the said framework.
27. The Applicant’s grievance was presented before the 1st Respondent (the Sports Disputes Tribunal) in SDT Case No. E031 of 2023 that culminated with a decision on 20th February 2024, dismissing the Applicant’s petition.
28. The decision was reasoned, lawful, and rendered within the 1stRespondent’s jurisdiction.
29. It is their case that The 1st Respondent considered all evidence presented, and its findings were supported by both law and fact. There was no error of law or irrationality as alleged by the Applicant.
30. The Applicant has not presented any evidence that disclose any procedural or jurisdictional error sufficient to meet the threshold for judicial review relief.
31. It is argued that Applicant’s case is conclusory, speculative, and not supported by any admissible evidence showing abuse of discretion, bias, or procedural unfairness on the part of the 1st Respondent.
32. The Applicant’s approach improperly seeks to convert this Judicial Review Application into an appeal.
33. He re-argues the facts, challenges the correctness of the Tribunal’s decision, and invites this Honourable Court to reweigh evidence and make fresh findings.
34. The prayer for prohibition against the 2nd and 3rdRespondents from attending NEC meetings and receiving allowances is punitive, disruptive and unjustified.
35. These officials were lawfully elected, and there is no subsisting order nullifying their election.
36. The continued exclusion of 2nd, 3rd and 4thRespondents from their NEC functions will severely undermine the operations of the 5thRespondent which include:
(i) Women World Championship which is slated for August 2025
(ii) National League – both divisions one and two (2024/25 season) which is nearing its end.
(iii) CAVB Continental Beach Volleyball
(iv) CAVB age group competitions - Under 16 and Under 20 for both gender
(v) Scouting for the national age group teams during the Primary and Secondary Schools championships. Their exclusion will adversely affect the smooth execution and success of these critical programs.
The 2nd to 5th Respondents Case;
37. The 2nd to 5th Respondents raised the following grounds of opposition:
1) The Applicant lacks the legal standing to institute these proceedings, having failed to attend or participate in the NEC meeting of 29th March 2025, despite receiving proper notice. His absence cannot be the basis for invalidating decisions made through a lawful and democratic process.
2) The Application improperly invites the Court to interfere with the internal affairs of the 5th Respondent, a private association, contrary to well-establishedprinciples that bar judicial review of internal governance matters where no public law element or statutory breach is demonstrated.
3) The NEC decisions were made during a properly convened meeting with full quorum, in accordance with the KVF Constitution and Article 5.2 of the NOCK Election Rules and Regulations 2025, which permit either the President or Secretary General to be nominated as voting delegate. The Applicant's exclusion as a nominee does not render the process unlawful.
4) The Applicant has not demonstrated any breach of law, procedural impropriety, irrationality, or abuse of power to warrant the Court's intervention under judicial review jurisdiction as contemplated by the Fair Administrative Action Act, 2015 and relevant case law.
5) The Application is frivolous, vexatious and amounts to an abuse of the court process. It has been brought in bad faith with the intention of frustrating a valid electoral process and paralyzing the operations of the 5th Respondent ahead of the scheduled NOCK elections.
38. They submit that in the present matter, the Applicant has brought the Application for judicial review solely under Order 53 of the Civil Procedure Rules, without alleging any violation of constitutional rights under Article 47 of the Constitution or invoking the Fair Administrative Action Act, 2015.
39. Consequently, they submit that the Court's jurisdiction is confined to reviewing the lawfulness, procedural propriety, and jurisdictional validity of the Sports Disputes Tribunal's (SDT) decision.
40. It cannot engage in a merits based assessment of whether the Applicant ought to have been
41. The Tribunal had duly adjudicated the matter and found that the 2nd, 3rd and 4th Respondents were properly elected in accordance with the electoral rules of the Kenya Volleyball Federation (KVF), which recognize the top three vote-getters as the validly elected Executive Committee Members.
42. The Applicant, having placed a distant fifth, had no legal entitlement or legitimate expectation to be declared elected.
43. They submit that the Respondents have since been integrated into the KVF's National Executive Committee, which is actively engaged in organizing and implementing critical activities all of which would be severely disrupted by any attempt to revisit or suspend their positions.
44. It is submitted that in these circumstances, there is no legal basis for granting the prerogative orders of certiorari or prohibition, and doing so would undermine both the finality of a duly rendered adjudication and the effective functioning of a national sporting body.
45. They submit that The Sports Disputes Tribunal (SDT) is established under Section 55 of the Sports Act and is vested with jurisdiction to hear disputes relating to elections, governance, and the internal affairs of sports organizations, as set out under Section 58.
46. The present matter, the Applicant properly invoked the SDT's jurisdiction, fully participated in the proceedings, and was afforded a fair hearing in accordance with the principles of natural justice. The SDT thereafter rendered a lawful and reasoned decision within the scope of its statutory mandate.
47. They submit that there is no allegation by the Applicant that the SDT:
a) Acted ultra vires its statutory powers;
b) Violated the principles of natural justice;
c) Denied any party the right to be heard; or
d) Committed any manifest error of law.
48. It is submitted that the Applicant has not satisfied the legal threshold for the grant of an order of certiorari as set out in Republic v Kenya National Examinations Council ex parte Gathenji 17997] eKLR and as codified under Section 7(2) of the Fair Administrative Action Act, 2015.
49. The Court of Appeal has affirmed that an order of certiorari can only issue to quash a decision made without or in excess of jurisdiction, or where there has been a breach of natural justice or other fundamental legal error.
50. In Republic v Kenya Forest Service Exparte Clement Kariuki [2073] eKLR,courts ought not to interfere with decisions of competent statutory bodies merely on account of dissatisfaction with the outcome, especially where due process was followed and the parties were given a fair and adequate opportunity to present their case.
51. Judicial review is a discretionary remedy, not one granted as of right. Even where the grounds for. issuance of an order, such as certiorari are established, the court may nonetheless refuse to grant it if doing so would cause undue prejudice or offend the public interest.
52. This principle is well anchored in Halsbury'sLaws of England, 4th Edition, Vol. Il at page 805 paragraph 1 505, which states:
"Certiorari is a discretionary remedy which a court may refuse to grant even when the requisite grounds for ifs grant exist. The court has to weigh one thing against another to see whether or not the remedy is the most efficacious in the circumstances obtaining. The discretion of the court being a judicial one must be exercised on the basis of evidence and sound legal principles."
53. The submit that in the present case, the 2nd, 3rd, and 4th Respondents were duly elected into the National Executive Committee (NEC), and the Kenya Volleyball Federation (KVF) has since assumed critical national duties, including:
a) Women World Championship which is slated for August 2025
b) National League — both divisions one and two (2024/25 season) which is nearing its end.
c) CAVB Continental Beach Volleyball
d) CAVB age group competitions - Under 1 6 and Under 20 for both gender
e) Scouting for the national age group teams during the Primary and Secondary Schools championships.
54. Granting judicial review orders to disturb the status quo would effectively paralyze the current NEC's functioning, disrupt national and international sports programs, and undermine Kenya's global commitments in the sport.
55. In Republic v National Employment Authority ex parte Middle East Consultancy Services Ltd [20781 eKLRdeclined to grant judicial review orders that would have disrupted ongoing government programs and caused administrative confusion. That reasoning applies equally here this court must consider the real-world consequences of the relief sought.
56. Reliance is placed in Petition No. 13 (EOT9) of 2020 — Kenya Railways Corporation & Others v Okiya Omtatah & Others, the Supreme Court emphasized the following principles:
a) Justice should not be defeated by procedural technicalities, pursuant to Article 159(2) (d) of the Constitution;
b) Finality of duly adjudicated proceedings must be respected to uphold legal certainty;
c) Judicial restraint is warranted where no demonstrable injustice or prejudice is established.
57. These principles apply with full force to the present case. The decision of the Sports Disputes Tribunal (SDT) was made lawfully, with full participation by all parties, including the Applicant. No cogent legal basis has been shown to justify overturning that decision. Exercising the court's discretion in favour of the Applicant would not only undermine the legitimacy of the ongoing NEC, but also risk destabilizing the governance of volleyball in Kenya at a time when stability is most needed.
Analysis and Determination;
58. The applicable law on leave to commence judicial review proceedings is Order 53 Rule 1of the Civil Procedure Rules, which provides that no Application for judicial review orders should be made unless leave of the court was sought and granted.
The reason for the leave was explained by Waki J (as he then was), in Republic v County Council of Kwale & Another Ex Parte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996 as follows:
“The purpose of Application for leave to apply for judicial review is firstly to eliminate at an early stage any Applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the Applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an Application for judicial review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived…Leave may only be granted therefore if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the Applicant the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive Application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised judicially”.
59. It is also trite that in an Application for leave, the Court ought not to delve deeply into the arguments of the parties, but should make cursory perusal of the evidence before court and make the decision as to whether an Applicant’s case is sufficiently meritorious to justify leave.In Uwe Meixner & another v Attorney General [2005] eKLR, it was held that the leave of court is a prerequisite to making a substantive Application for Judicial Review with a view to filtering out frivolous Applications and the grant or refusal involves an exercise of judicial discretion and the test to be applied is whether the Applicant has an arguable case. Thus, the first step in the Judicial Review procedure involves the mandatory "leave stage." At this stage an Application for leave to bring Judicial Review proceedings must first be made. The leave stage as held by Waki J is used to identify and filter out, at an early stage, claims which may be trivial or without merit.
60. This court is satisfied that the Applicant’s grievance was presented before the 1stRespondent (the Sports Disputes Tribunal) in SDT Case No. E031 of 2023.
61. The tribunal rendered a decision on 20thFebruary 2024, dismissing the Applicant’s petition. It gave reasons for its finding.
62. This Court is not sitting on appeal as a result of which it lacks the jurisdiction to assess nor evaluate the discretion that was invoked in arriving at the impugned decision.
63. The 1stRespondent’s acted within its jurisdiction.
64. The 1st Respondent considered all evidence presented, and its findings were supported by both law and fact.
65. The Applicant was given a chance to be heard.
66. The Applicant also sought an order for prohibition. Having found that the Applicant is not entitled to the order for leave to initiate review proceedings the prayer for prohibition falls by the wayside.
Costs;
67. In determining the issue of costs, this court is guided by the Supreme Court in the case of Jasbir Singh Rai & Others vs. TarlochanRai & Others observed that;
“In the classic common law style, the courts have to proceed on a case by case basis, to identify "good reasons" for such departure. An examination of evolving practices on this question shows that, as an example, matters in the domain of public interest litigation tend to be exempted from award of costs…”
68. The Applicant is not successful in the Application as a result of which he is not entitled to costs and is so hold.
Disposition;
69. The Applicant has not made out a prima case that can justify the grant of the orders sought.
Order;
The Application is dismissed with costs.