1. The Application that is before this court for determination is the one dated Notice of Motion dated 10th July 2025 wherein the 1st interested Party/Applicant seeks the following orders:-
1) Prayers 1, 2, 3 and 4 ..spent.
2) THAT pending hearing and determination of the substantive suit herein, Exparte Interim Orders issued vide this Honourable Court’s Directions / Orders of the 2.7.2025 staying the impugned Decision of the Respondent delivered on / dated the 24.6.2025 in the SDTSC / E039 / 2025 Gucha Stars Football Club vs the Football Kenya Federation Leagues and Competitions Committee and Nakuru Bucks Football Club and Bildad Marube be set aside, vacated, reviewed, discharged and or otherwise varied on such terms as this court shall deem fit.
The 1st Interested Party/Applicant’s case;
2. The Applicant argues that The Exparte Applicant invited this Court to fault the Respondent for the Exparte Applicant’s failure to participate in the proceedings in the SDTSC / E039 / 2025 Gucha Stars Football Club vs the Football Kenya Federation Leagues and Competitions Committee and Nakuru Bucks Football Club and Bildad Marube whose impugned Decision is subject hereof.
3. It is its case that the Exparte Applicant was aware of the SDTSC / E039 / 2025 Gucha Stars Football Club vs the Football Kenya Federation Leagues and Competitions Committee and Nakuru Bucks Football Club and Bildad Marube but out of indolence, chose not to seek audience therein and was content to await the outcome.
4. This is depicted by its official Facebook Page post https://www.facebook.com/share/p/16ZsXaNcCD/ posthttps://www.facebook.com/share/p/16ZsXaNcCD/ in proof of the same.
5. In addition to this it is the Applicant’s submission that Edwin Chahilu Ayiro, the Chairman of the Ex – Parte Applicant, is a member of the 2nd Interested Party’s Legal Committee alongside Dennis Gicheru, the Advocate who represented the 2ndRespondent in all the past proceedings subject hereto.
6. It is the Applicant’s case that as members of the said Committee, both of them provide legal advice to the 2nd Interested Party hence by virtue of his office he was not only aware of the impugned proceedings but also conflicted in his interest.
7. This it is argued can be seen in the exhibit marked “SO - 13” which is a screenshot of the 2nd Interested Party’s website https://footballkenya.org/ in proof of the same.
8. It is argued that nothing stopped the said Exparte Applicant from making an Application under Rule 17 (1) of the Sports Dispute Tribunal Rules which allows the Tribunal to add Interested Parties to its proceedings.
9. The Exparte Applicant sat on its right to be included therein and waited until it was too late to salvage it purported predicament. It has itself to blame as equity does not aid the indolent.
10. The Exparte Applicant never sought to be included in the proceedings of the 2nd Interested Party’s Leagues and Competitions Committee leading to its Decision of the 23.5.2025.
11. It also never sought audience in the 2nd Interested Party’s Appeals Committee in the Football Kenya Federation Appeals Committee Appeal No. 002 Of 2025 Gucha Stars Football Club vs The Football Kenya Federation Leagues And Competitions Committee And 2 Others.
12. It is its case that the Exparte Applicant took no steps whatsoever to be included in the said Proceedings because the said Proceedings gave favourable outcomes and were further only awoken by a contrary outcome made by the Respondent.
13. It is submitted that the failure of Edwin Chahilu Ayiro, the Chairman of the Ex – Parte Applicant to disclose his conflicted position with the 2nd Interested Party’s Legal Committee and his knowledge of all the subject proceedings cannot be swept under the carpet.
14. Reliance is placed in the case of John Njue Nyaga v Nicholas Njiru Nyaga & Another (2013) eKLR, where the Court of Appeal sitting at Nyeri observed as follows:-
“It is our considered view that one who comes to equity must come with clean hands and equity frowns upon secrecy and underhand dealings.” The Applicant has not done so and is underserving of the orders he seeks.”
15. In the instant suit, it is submitted that the Chairman of the Exparte Applicant, conveniently forgot to mention the existence of the Sports Dispute Tribunal Rules published in the Kenya Gazette Vol. CXXIV—No. 71 on 22 April 2022 and passed pursuant to the Legal Notice No. 49 of 2022.
16. He instead, in the Exparte Application made reference to non-existent provisions of the Sports Act.
17. Under Rule 2 of the Sports Dispute Tribunal Rules, the said Rules are said to apply to all proceedings, Appeals or matters over which the Respondent Tribunal has jurisdiction under sections 58 and 59 of the Sports Act, the subject dispute being one such an Appeal.
18. The Respondent in SDTSC / E039 / 2025 Gucha Stars Football Club vs the Football Kenya Federation Leagues and Competitions Committee and Nakuru Bucks Football Club and Bildad Marube heard and determined the said Appeal and made the impugned decision delivered on / dated the 24.6.2025wherein issued directions issued as follows:-
“Conclusion
70. Having considered the totality of the evidence presented, read the pleadings and submissions filed by parties, the Tribunal pronounces and orders as follows:-
i. The 2nd Interested Party was indeed fielded when listed as a substitute under the false identity of Eugene Nyagaka. Therefore, FKF Leagues and Competitions Committee had the legal authority to handle matters of player eligibility and impose match forfeiture as a regulatory consequence provided under Rule 6.2.13 of the FKF Rules and Regulations Governing Kenyan Football 2019, even when the underlying conduct involved falsified registration information.
ii. The FKF Leagues and Competitions Committee possessed the requisite legal authority to determine matters of player eligibility and impose sanctions under Rule 6.2.13, even when such matters involve falsified registration information, as these fall within their mandate to manage competition integrity.
iii. Given that the ineligible player never entered the field of play and therefore did not directly influence the match result through active participation, the sanction of match forfeiture, while legally supportable, is disproportionate to the actual competitive impact of the violation. Therefore:-
(a) The match result of 19th April 2025 between Gucha Stars Football Club and Nakuru Bucks Football Club is hereby declared null and void;
(b) The match shall be replayed at a neutral venue to be determined by the FKF Leagues and Competitions Committee within 14 days of this decision.
(c) The Appellant is fined a sum of Kshs. 100,000 to be paid to the Football Kenya Federation within 30 days of this decision for the negligence caused in the match team sheet concerning the impugned player.
iv. The Appeal dated 6th June 2025 is partially allowed to the extent of modifying the sanction from match forfeiture to match replay as ordered above, while upholding the finding of rule violations as held in the decision of Football Kenya Federation Appeals Committee of the 29.5.2025 in the Football Kenya Federation Appeals Committee Appeal No. 002 Of 2025 Gucha Stars Football Club v. Each party shall bear their own costs.
The Tribunal thanks both Counsel Ochieng and Counsel Gicheru for the meticulous manner in which they conducted these proceedings.
Signed: Benard Murunga Wafula Member and Panel Chairperson Allan Mola Owinyi Member”.
19. It submits that the Respondent Tribunal in its wisdom hence ordered a replay of the said match based on the principle of proportionality in administrative law and sports regulations, its past decisions which have hitherto not been reversed or otherwise overturned, precedents from the Court of Arbitration of Sports, CAS ( the Appellate body prescribed by Rule 26 of the Sports Disputes Tribunal Rules published in the Kenya Gazette Vol. CXXIV—No. 71 on 22 April 2022 and passed pursuant to the Legal Notice No. 49 of 2022) and precedents from the United Kingdom.
20. It argues that the Respondent Tribunal’s impugned Decision was unanimous and hence never required to be put to a vote and was also in compliance with the powers conferred to it by Rule 23 of the Sports Disputes Tribunal Rules which states that:-
“23. Decisions of the Tribunal
(i) Unless a unanimous decision is reached, a decision on any matter before the Tribunal shall be by a majority of votes of the panel and in case of an equality of vote, the Chairperson or the person presiding shall have a casting vote.
(7) In addition to making the recommendations in paragraphs (5) and (6) the Tribunal may issue–
a. A reprimand or warning;
b. Suspend the person from activities of the National Sports Organization;
c. Suspend the person’s membership of the National Sports Organization or its members;
d. Impose a fine;
e. Impose other penalty as the Tribunal considers commensurate with the offence;
f. Combination of any of the above penalties as the Tribunal thinks fit. ” (Emphasis mine)
21. The Exparte Applicant’s deliberately failed to bring the above provisions of the Sports Disputes Tribunal Rules to the attention of this Honourable Court.
22. It is further submitted that the Applicant also chose not to inform this Court of the Provisions of Rule 34 of the Sports Disputes Tribunal Rules on the other hand states that:-
“34.Quorum of the Tribunal
1) Except where otherwise specifically provided for in these Rules, for purposes of proceedings before the Tribunal, quorum shall be Chairperson or a member acting as Chairperson and two members.
2) The Chairperson or deputy Chairperson may select a panel comprising of fewer or more than three members.”(Emphasis mine)
23. It is argued that had he made appropriate and necessary disclosure of as above detailed, this Court might not have granted leave to file the subject Judicial Review Proceedings and or might not have granted stay of the impugned decision in the SDTSC / E039 / 2025 Gucha Stars Football Club vs the Football Kenya Federation Leagues andCompetitions Committee and Nakuru Bucks Football Club and Bildad Marube.
24. The Ex – Parte Applicant, Edwin Chahilu Ayiro, who is an Advocate of the High Court of Kenya, intentionally deceived this court by falsely affirming that the Respondent Tribunal’s subject decision was irrational and unreasonable and or was in excess of its authority while fully cognizant of Rules 23 (7) (d), (e) and (f) and Rule 34 (2) of the Sports Disputes Tribunal Rules.
25. Section 59 of the Sports Act which provides that:-
“The Tribunal may, in determining disputes apply alternative dispute resolution methods for sports disputes and provide expertise and assistance regarding alternative dispute resolution to the parties to a dispute.”
26. It is submitted that Edwin Chahilu Ayiro is also aware and failed to bring to this court’s attention the provisions of the court.
27. Section 23 of the Sports Act that he heavily relied upon in his Ex Parte Application is irrelevant to this matter as it provides that:-
“23. Delegation by the Board of Trustees
The Board of Trustees may, by resolution either generally or the Board of Trustees in any particular case, delegate to any committee of the Board of Trustees or to any officer, member of staff or agent of the Board of Trustees, the exercise of any of the powers or the performance of any of the functions or duties of the Board of Trustees under this Act.”
28. It submits that it is clear that the Exparte Applicant obtained Orders of stay of the subject decision of the Tribunal by failing to make full disclosure of the relevant facts above elaborated, deliberately misled the court thereon and deposed to facts which the Applicant knew or ought to have known to be untrue.
29. It is further submitted that the Exparte Applicant failed to disclose to this Court that the Respondent Tribunal has powers to review its orders under section 80 of the Civil Procedure Act and under Rule 25 of its Rules which it opted not to explore.
30. Though it might be premature to so state at this juncture, prima facie, Respondent in view of the foregoing, made the disputed Decision within the confines of the law and hence it’s said decision was not irrational and unreasonable as contended in the Exparte Application.
31. It acted with due appreciation of its responsibilities as prescribed by the Sports Act and the Respondent’s Rules and its subject Decision was one any other reasonable Tribunal would have decided to adopt.
32. It submits that The said Decision passed the test in Republic v Non-Governmental Organizations Ex parte Linda Bonyo & 4 others; Philip Opiyo Sadjah & 5 others (Interested Parties) [2020] KEHC 3008 (KLR) where Mativo J stated that:-
“65. The question is whether the decision falls outside the range of possible acceptable outcomes applying the same set of facts and the law. The legal standard of reasonableness must be the standard indicated by the true construction of the statute. If there is an evident, transparent and intelligible justification for the decision or if the decision is within the ‘area of decisional freedom’ of the decision-maker, it would be an error for the court to overturn the decision simply on the basis that it would have decided the matter differently.”
33. It is on the above backdrop that the 1st Interested party implores upon this court to re - evaluate its previous Directions to issue the Stay Order, taking into account the intentional misrepresentation in the deceitful contents of the Affidavit sworn by Edwin ChahiluAyiro to protect its dignity and integrity because such deliberate misinformation not only undermines the truth-seeking process but also threatens the credibility of the entire judicial system.
34. It is submitted that from the foregoing it is clear that these Judicial Review Proceedings were not only calculated to lock the 1st Interested Party out of contention to be promoted to the FKF National Super League but are also ill advised, an abuse of the court process and likely to be dismissed with costs.
35. The Applicant asserts that being apprehensive of the high likelihood of this matter being dismissed, the Edwin Chahilu Ayiro advised the 2nd Interested Party to proceed and swiftly fix the Division One Playoff match pitting the 2nd placed teams on the Table of Standing in both zones of the said Division to take place at 12.00 hrs.
36. That was to be held on Saturday the 12.7.2025 to determine the 3rd team that could have joined the 2025/2026 FKF National Super League but to the 1st Interested Party’s knowledge the match did not take place in view of the interim orders hitherto existing pursuant to this subject Application.
37. When faced with the question as to the consequences of the Plaintiff’s action in failing to disclose these important facts, E. K. Wabwoto, J held as follows at para. 21 cited the Court of Appeal in Bahadurali Ebrahim Shamji v. Al Noor Jamal & 2 Others Civil Appeal No. 210 of 1997 where it stated: -
“It is perfectly well-settled that a person who makes an Exparte Application to the court – that is to say, in the absence of the person who will be affected by that which the court is asked to do – is under an obligation to the court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make the fullest possible disclosure then he cannot obtain any advantage from the proceedings, and he will be deprived of any advantage he may have already obtained. It has been for many years the rule of court, and one which it is of the greatest importance to maintain, that when an Applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts – facts, not law. He must not misstate the law if he can help it – the court is supposed to know the law. But it knows nothing about the facts, and the Applicant must state fully and fairly the facts, and the penalty by which the court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the court will set aside any action which it has taken on the faith of the imperfect statement…………
In considering whether or not there has been relevant non-disclosure and what consequence the court should attach to any failure to comply with the duty to make full and frank disclosure, the principles relevant to the issues in these appeals appear to include;
(i) The duty of the Applicant is to make full and fair disclosure of the material facts.
(ii) The material facts are those which it is material for the judge to know in dealing with the Application made; materiality is to be decided by the court and not the assessment of the Applicant or his legal advisers.
(iii) The Applicant must make proper inquiries before making the Application. The duty of disclosure therefore applies not only to material facts known to the Applicant but also to any additional facts which he would have known if he had made sufficient inquiries.
(iv) The extent of the inquiries which will be held to be proper, and therefore necessary, must depend on all the circumstances of the case including:-
a) The nature of the case which the Applicant is making when he makes the Application,
b) The order for which the Application is made and the probable effect of the order on the defendant, and
c) The degree of legitimate urgency and the time available for the making of the inquiries.
(v) If material non-disclosure is established the court will be astute to ensure that a Plaintiff who obtains an Exparte injunction without full disclosure is deprived of any advantage by that breach of duty.
(vi) Whether the fact not disclosed is of sufficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to issues which were to be decided by the judge in the Application. The answer to the question whether the non-disclosure was innocent, in the sense that the fact was not known to the Applicant or that its relevance was not perceived, is an important consideration but not decisive by reason of the duty on the Applicant to make all proper inquiries and to consider the case being presented.
(vii) Finally, it is not every omission that the injunction will be automatically discharged. A locus pentitentiae (chance of repentance) may sometimes be afforded. The Court has a discretion, notwithstanding proof of material non-disclosure which justifies or requires the immediate discharge of the Exparte order, nevertheless to make a new order on terms: when the whole of the facts, including that of the original nondisclosure, are before it, the court may well grant such a second injunction if the original non-disclosure was innocent and if an injunction could properly be granted even had the facts been disclosed…”
38. There is evidence that the deliberate concealment of obvious material facts on the part of the Ex – Parte Applicant no doubt precluded this court from doing justice to the 1st Interested Party.
39. In the case of Ruaha Concrete Co. Ltd et al versus Paramount universal Bank Ltd et al, HCCC No. 430 of 2002, cited in Halima Haji Sarah v Multiple Hauliers (E.A) Limited & another (supra) the Court further outlined the principles of non-disclosure and the consequences which will follow as a result of such non-disclosure as follows:-
“The duty is not to make full and fair disclosure of all material facts, the material facts are those which is material for the judge to know in dealing with the Application as made, materiality is to be decided by the Court, and not by assessment of the Applicant, and the Applicant must make proper inquiries before making the Application. The duty of disclosure therefore applies not only to any additional facts known to the Applicant but also to any additional facts which he would have known if he had made such inquiries. The extent of the inquiries which will be held to be proper, and therefore necessary, must depend on all the circumstances of the case including: -
a. The nature of the case the Applicant is making when he makes the Application.
b. The order for which the Application is made and the probable effect of the order on the Defendant or the Plaintiff.
c. The degree of the legitimate urgency and the time available for the making of the inquiries.”
40. In the instant case, it should be the finding of this court that indeed the Ex – Parte Applicant is guilty of material disclosure for conducting the Ex – Parte proceedings and obtaining the Directions and or Orders issued on the 1.7.2025 subject hereof without disclosing all material facts to the court.
41. In buttressing the threshold for reviewing , varying or setting aside Exparte orders it relies on a host of cases being Okiya Omtatah Okoiti v Joseph Kinyua & 2 others [2018] eKLR :-
“22. In The King –Vs- The General Commissioners for the Purposes of the Income Tax Act for the District of Kensington [1917]1 K.B. 486, Republic v Kenya Medical Training College & another Exparte Kenya Universities and Colleges Central Placement Service [20151 eKLR ,Margaret Wangui Karugu v John Njenga Karugu another 120181 eKLR”
42. The Exparte Applicant trust that had the information above been brought to this court’s attention, it would not have granted the interim Orders.
The Ex Party Applicant/Respondents Case;
43. The Ex Parte Applicant opposes the Notice of Motion dated 10th July 2025 filed by the 1st Interested Party on the following grounds:
1) Res Judicata / Functus Officio; The Application seeks orders whose effect is to reopen and vary interim orders already issued by this Honourable Court on 2nd July 2025, yet the Court is functus officio in respect of those directions, save as provided for under review jurisdiction which has neither been properly invoked nor justified.
2) Improper Forum for Relief Sought; the 1st Interested Party’s grievances relate to the propriety of interim stay orders granted by the Court and the merits of the Tribunal’s decision. Such matters ought to be canvassed in the substantive hearing of the Judicial Review Application, not by collateral Application that effectively pre-empts the main suit.
3) Sub Judice; the Application raises issues that are the subject of determination in the substantive judicial review motion being Milimani HCJR/E245/2025. Entertaining them at this stage risks determining the merits prematurely, contrary to the sub judice principle under Section 6 of the Civil Procedure Act. Vacating the stay now would render the substantive judicial review motion nugatory and cause irreversible prejudice to the Ex Parte Applicant by allowing execution of the Tribunal’s orders before their legality is tested.
4) Abuse of Court Process; the Application amounts to an attempt to re-argue issues already considered when the Court granted interim relief. It is a collateral attack designed to circumvent the structured timelines the Court set for disposal of the substantive motion.
5) No Demonstration of Prejudice; The 1st Interested Party has not shown that it will suffer prejudice incapable of being remedied at the final determination should the interim orders remain in force pending hearing of the main suit.
6) Public Interest Favours Final Determination on Merits; The matters raised involve governance of national football leagues and enforcement of sports regulatory decisions. Public interest requires that the legality of the Tribunal’s decision be determined substantively without disturbance of interim preservation orders.
7) Non-Compliance with Procedural Requirements; The Application as drawn fails to clearly identify the enabling provisions for setting aside interlocutory orders in judicial review proceedings and is therefore procedurally defective.
Analysis and determination;
Upon perusing the Application and upon perusing the supporting affidavit and the grounds of opposition, filed by the Exparte Applicant in response to the Application,this court finds the following to be the issues for determination;
1) Whether the Applicant has made out a case for the grant of the orders sought.
2) Who shall be the costs.
Whether the Applicant has made out a case for the grant of the orders sought.
44. In order to determine whether the Applicant has made out a case for the grant of the orders sought, the Applicant must demonstrate that its case fits within the principles that have been enunciated in the case of
Republic v Jubilee Party & another Ex parte John Kieru Wambui & another [2021] eKLR;
“5. The applicable law for setting aside or review of a judgment or decree of the court is section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Section 80 of the Civil Procedure Act provides as follows:
“Any person who considers himself aggrieved—
a. by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
b. by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”
6. Order 45 Rule 1 of the Civil Procedure Rules elaborates on the grounds on which a judgment or decree can be set aside as follows:
“(1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”
45. In the case of Paul Gathingu Gachie v Cabinet Secretary for Land & Physical Planning [2021] eKLR,
“5. The court has carefully considered the grounds on the notice of motion, the affidavit evidence by both parties, the submissions by learned counsel, the superior courts decisions cited therein, and come to the following conclusions;
That Order 51 Rule 15 of the Civil Procedure Rules provides for setting aside of ex parte orders in appropriate cases. The court in the case of ZEBEDEE MMATA INJERA V BENSON ANUBI LUHONG; JOANNE C.K. LUHONGO (INTERESTED PARTY) [2021] eKLR, expressed itself as follows on Order 51 Rule 15;
“… while Order 51 Rule 15 of the Civil Procedure Rules gives the court power to set aside any order made ex parte, the court's discretionary power should, however, be exercised judiciously, with the overriding objective of ensuring that justice is done to all the parties. That the court's discretion to set aside an ex parte ruling/judgment is not restricted, but should be so exercised not to cause injustice to the opposite party. It is incumbent upon the party seeking the court's favor or discretion to adduce sufficient and plausible reasons that are demonstrable, and persuasive to the court…”
46. According to the Exparte Applicant, since interim orders have already been issued by this Court on 2nd July 2025,the Court is functus officio in respect of those directions, save as provided for under review jurisdiction which has neither been properly invoked nor justified.
47. The Supreme Court in the case of Raila Odinga & 2 others v Independent Electoral & Boundaries Commission, Ahmed Issack Hassan, Uhuru Kenyatta & William Samoei Ruto (Petition 5, 4 & 3 of 2013) [2013] KESC 8 (KLR) (Civ) (24 October 2013) (Ruling) held as follows on the doctrine of functus officio;
“18. We, therefore, have to consider the concept of “functus officio,” as understood in law. Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 122 SALJ 832, has thus explicated this concept: “The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”
48. This argument is misplaced given that the Exparte order that was issued on 2nd July 2025 did not bring the litigation to an end.The suit is pending inter parties hearing. Further to that, this court has powers to exercise its discretion under Section 80 and Order 45 of the civil procedure act and rules in exercise of its discretion set aside, vary or review such orders where there is justification to do so like in the instant suit.
49. The Exparte Applicant further argues that the 1st Interested Party’s grievances relate to the propriety of interim stay orders granted by the Court and the merits of the Tribunal’s decision. Such matters ought to be canvassed in the substantive hearing of the Judicial Review Application, not by collateral Application that effectively pre-empts the main suit.
50. It is this court’s finding that it has jurisdiction, to review of the information that had been concealed once brought to its attention so as to establish whether or not the orders were obtained properly or not.
51. The Exparte Applicant’s argument that the Application raises issues that are the subject of determination in the substantive judicia
[...truncated]
1) Prayers 1, 2, 3 and 4 ..spent.
2) THAT pending hearing and determination of the substantive suit herein, Exparte Interim Orders issued vide this Honourable Court’s Directions / Orders of the 2.7.2025 staying the impugned Decision of the Respondent delivered on / dated the 24.6.2025 in the SDTSC / E039 / 2025 Gucha Stars Football Club vs the Football Kenya Federation Leagues and Competitions Committee and Nakuru Bucks Football Club and Bildad Marube be set aside, vacated, reviewed, discharged and or otherwise varied on such terms as this court shall deem fit.
The 1st Interested Party/Applicant’s case;
2. The Applicant argues that The Exparte Applicant invited this Court to fault the Respondent for the Exparte Applicant’s failure to participate in the proceedings in the SDTSC / E039 / 2025 Gucha Stars Football Club vs the Football Kenya Federation Leagues and Competitions Committee and Nakuru Bucks Football Club and Bildad Marube whose impugned Decision is subject hereof.
3. It is its case that the Exparte Applicant was aware of the SDTSC / E039 / 2025 Gucha Stars Football Club vs the Football Kenya Federation Leagues and Competitions Committee and Nakuru Bucks Football Club and Bildad Marube but out of indolence, chose not to seek audience therein and was content to await the outcome.
4. This is depicted by its official Facebook Page post https://www.facebook.com/share/p/16ZsXaNcCD/ posthttps://www.facebook.com/share/p/16ZsXaNcCD/ in proof of the same.
5. In addition to this it is the Applicant’s submission that Edwin Chahilu Ayiro, the Chairman of the Ex – Parte Applicant, is a member of the 2nd Interested Party’s Legal Committee alongside Dennis Gicheru, the Advocate who represented the 2ndRespondent in all the past proceedings subject hereto.
6. It is the Applicant’s case that as members of the said Committee, both of them provide legal advice to the 2nd Interested Party hence by virtue of his office he was not only aware of the impugned proceedings but also conflicted in his interest.
7. This it is argued can be seen in the exhibit marked “SO - 13” which is a screenshot of the 2nd Interested Party’s website https://footballkenya.org/ in proof of the same.
8. It is argued that nothing stopped the said Exparte Applicant from making an Application under Rule 17 (1) of the Sports Dispute Tribunal Rules which allows the Tribunal to add Interested Parties to its proceedings.
9. The Exparte Applicant sat on its right to be included therein and waited until it was too late to salvage it purported predicament. It has itself to blame as equity does not aid the indolent.
10. The Exparte Applicant never sought to be included in the proceedings of the 2nd Interested Party’s Leagues and Competitions Committee leading to its Decision of the 23.5.2025.
11. It also never sought audience in the 2nd Interested Party’s Appeals Committee in the Football Kenya Federation Appeals Committee Appeal No. 002 Of 2025 Gucha Stars Football Club vs The Football Kenya Federation Leagues And Competitions Committee And 2 Others.
12. It is its case that the Exparte Applicant took no steps whatsoever to be included in the said Proceedings because the said Proceedings gave favourable outcomes and were further only awoken by a contrary outcome made by the Respondent.
13. It is submitted that the failure of Edwin Chahilu Ayiro, the Chairman of the Ex – Parte Applicant to disclose his conflicted position with the 2nd Interested Party’s Legal Committee and his knowledge of all the subject proceedings cannot be swept under the carpet.
14. Reliance is placed in the case of John Njue Nyaga v Nicholas Njiru Nyaga & Another (2013) eKLR, where the Court of Appeal sitting at Nyeri observed as follows:-
“It is our considered view that one who comes to equity must come with clean hands and equity frowns upon secrecy and underhand dealings.” The Applicant has not done so and is underserving of the orders he seeks.”
15. In the instant suit, it is submitted that the Chairman of the Exparte Applicant, conveniently forgot to mention the existence of the Sports Dispute Tribunal Rules published in the Kenya Gazette Vol. CXXIV—No. 71 on 22 April 2022 and passed pursuant to the Legal Notice No. 49 of 2022.
16. He instead, in the Exparte Application made reference to non-existent provisions of the Sports Act.
17. Under Rule 2 of the Sports Dispute Tribunal Rules, the said Rules are said to apply to all proceedings, Appeals or matters over which the Respondent Tribunal has jurisdiction under sections 58 and 59 of the Sports Act, the subject dispute being one such an Appeal.
18. The Respondent in SDTSC / E039 / 2025 Gucha Stars Football Club vs the Football Kenya Federation Leagues and Competitions Committee and Nakuru Bucks Football Club and Bildad Marube heard and determined the said Appeal and made the impugned decision delivered on / dated the 24.6.2025wherein issued directions issued as follows:-
“Conclusion
70. Having considered the totality of the evidence presented, read the pleadings and submissions filed by parties, the Tribunal pronounces and orders as follows:-
i. The 2nd Interested Party was indeed fielded when listed as a substitute under the false identity of Eugene Nyagaka. Therefore, FKF Leagues and Competitions Committee had the legal authority to handle matters of player eligibility and impose match forfeiture as a regulatory consequence provided under Rule 6.2.13 of the FKF Rules and Regulations Governing Kenyan Football 2019, even when the underlying conduct involved falsified registration information.
ii. The FKF Leagues and Competitions Committee possessed the requisite legal authority to determine matters of player eligibility and impose sanctions under Rule 6.2.13, even when such matters involve falsified registration information, as these fall within their mandate to manage competition integrity.
iii. Given that the ineligible player never entered the field of play and therefore did not directly influence the match result through active participation, the sanction of match forfeiture, while legally supportable, is disproportionate to the actual competitive impact of the violation. Therefore:-
(a) The match result of 19th April 2025 between Gucha Stars Football Club and Nakuru Bucks Football Club is hereby declared null and void;
(b) The match shall be replayed at a neutral venue to be determined by the FKF Leagues and Competitions Committee within 14 days of this decision.
(c) The Appellant is fined a sum of Kshs. 100,000 to be paid to the Football Kenya Federation within 30 days of this decision for the negligence caused in the match team sheet concerning the impugned player.
iv. The Appeal dated 6th June 2025 is partially allowed to the extent of modifying the sanction from match forfeiture to match replay as ordered above, while upholding the finding of rule violations as held in the decision of Football Kenya Federation Appeals Committee of the 29.5.2025 in the Football Kenya Federation Appeals Committee Appeal No. 002 Of 2025 Gucha Stars Football Club v. Each party shall bear their own costs.
The Tribunal thanks both Counsel Ochieng and Counsel Gicheru for the meticulous manner in which they conducted these proceedings.
Signed: Benard Murunga Wafula Member and Panel Chairperson Allan Mola Owinyi Member”.
19. It submits that the Respondent Tribunal in its wisdom hence ordered a replay of the said match based on the principle of proportionality in administrative law and sports regulations, its past decisions which have hitherto not been reversed or otherwise overturned, precedents from the Court of Arbitration of Sports, CAS ( the Appellate body prescribed by Rule 26 of the Sports Disputes Tribunal Rules published in the Kenya Gazette Vol. CXXIV—No. 71 on 22 April 2022 and passed pursuant to the Legal Notice No. 49 of 2022) and precedents from the United Kingdom.
20. It argues that the Respondent Tribunal’s impugned Decision was unanimous and hence never required to be put to a vote and was also in compliance with the powers conferred to it by Rule 23 of the Sports Disputes Tribunal Rules which states that:-
“23. Decisions of the Tribunal
(i) Unless a unanimous decision is reached, a decision on any matter before the Tribunal shall be by a majority of votes of the panel and in case of an equality of vote, the Chairperson or the person presiding shall have a casting vote.
(7) In addition to making the recommendations in paragraphs (5) and (6) the Tribunal may issue–
a. A reprimand or warning;
b. Suspend the person from activities of the National Sports Organization;
c. Suspend the person’s membership of the National Sports Organization or its members;
d. Impose a fine;
e. Impose other penalty as the Tribunal considers commensurate with the offence;
f. Combination of any of the above penalties as the Tribunal thinks fit. ” (Emphasis mine)
21. The Exparte Applicant’s deliberately failed to bring the above provisions of the Sports Disputes Tribunal Rules to the attention of this Honourable Court.
22. It is further submitted that the Applicant also chose not to inform this Court of the Provisions of Rule 34 of the Sports Disputes Tribunal Rules on the other hand states that:-
“34.Quorum of the Tribunal
1) Except where otherwise specifically provided for in these Rules, for purposes of proceedings before the Tribunal, quorum shall be Chairperson or a member acting as Chairperson and two members.
2) The Chairperson or deputy Chairperson may select a panel comprising of fewer or more than three members.”(Emphasis mine)
23. It is argued that had he made appropriate and necessary disclosure of as above detailed, this Court might not have granted leave to file the subject Judicial Review Proceedings and or might not have granted stay of the impugned decision in the SDTSC / E039 / 2025 Gucha Stars Football Club vs the Football Kenya Federation Leagues andCompetitions Committee and Nakuru Bucks Football Club and Bildad Marube.
24. The Ex – Parte Applicant, Edwin Chahilu Ayiro, who is an Advocate of the High Court of Kenya, intentionally deceived this court by falsely affirming that the Respondent Tribunal’s subject decision was irrational and unreasonable and or was in excess of its authority while fully cognizant of Rules 23 (7) (d), (e) and (f) and Rule 34 (2) of the Sports Disputes Tribunal Rules.
25. Section 59 of the Sports Act which provides that:-
“The Tribunal may, in determining disputes apply alternative dispute resolution methods for sports disputes and provide expertise and assistance regarding alternative dispute resolution to the parties to a dispute.”
26. It is submitted that Edwin Chahilu Ayiro is also aware and failed to bring to this court’s attention the provisions of the court.
27. Section 23 of the Sports Act that he heavily relied upon in his Ex Parte Application is irrelevant to this matter as it provides that:-
“23. Delegation by the Board of Trustees
The Board of Trustees may, by resolution either generally or the Board of Trustees in any particular case, delegate to any committee of the Board of Trustees or to any officer, member of staff or agent of the Board of Trustees, the exercise of any of the powers or the performance of any of the functions or duties of the Board of Trustees under this Act.”
28. It submits that it is clear that the Exparte Applicant obtained Orders of stay of the subject decision of the Tribunal by failing to make full disclosure of the relevant facts above elaborated, deliberately misled the court thereon and deposed to facts which the Applicant knew or ought to have known to be untrue.
29. It is further submitted that the Exparte Applicant failed to disclose to this Court that the Respondent Tribunal has powers to review its orders under section 80 of the Civil Procedure Act and under Rule 25 of its Rules which it opted not to explore.
30. Though it might be premature to so state at this juncture, prima facie, Respondent in view of the foregoing, made the disputed Decision within the confines of the law and hence it’s said decision was not irrational and unreasonable as contended in the Exparte Application.
31. It acted with due appreciation of its responsibilities as prescribed by the Sports Act and the Respondent’s Rules and its subject Decision was one any other reasonable Tribunal would have decided to adopt.
32. It submits that The said Decision passed the test in Republic v Non-Governmental Organizations Ex parte Linda Bonyo & 4 others; Philip Opiyo Sadjah & 5 others (Interested Parties) [2020] KEHC 3008 (KLR) where Mativo J stated that:-
“65. The question is whether the decision falls outside the range of possible acceptable outcomes applying the same set of facts and the law. The legal standard of reasonableness must be the standard indicated by the true construction of the statute. If there is an evident, transparent and intelligible justification for the decision or if the decision is within the ‘area of decisional freedom’ of the decision-maker, it would be an error for the court to overturn the decision simply on the basis that it would have decided the matter differently.”
33. It is on the above backdrop that the 1st Interested party implores upon this court to re - evaluate its previous Directions to issue the Stay Order, taking into account the intentional misrepresentation in the deceitful contents of the Affidavit sworn by Edwin ChahiluAyiro to protect its dignity and integrity because such deliberate misinformation not only undermines the truth-seeking process but also threatens the credibility of the entire judicial system.
34. It is submitted that from the foregoing it is clear that these Judicial Review Proceedings were not only calculated to lock the 1st Interested Party out of contention to be promoted to the FKF National Super League but are also ill advised, an abuse of the court process and likely to be dismissed with costs.
35. The Applicant asserts that being apprehensive of the high likelihood of this matter being dismissed, the Edwin Chahilu Ayiro advised the 2nd Interested Party to proceed and swiftly fix the Division One Playoff match pitting the 2nd placed teams on the Table of Standing in both zones of the said Division to take place at 12.00 hrs.
36. That was to be held on Saturday the 12.7.2025 to determine the 3rd team that could have joined the 2025/2026 FKF National Super League but to the 1st Interested Party’s knowledge the match did not take place in view of the interim orders hitherto existing pursuant to this subject Application.
37. When faced with the question as to the consequences of the Plaintiff’s action in failing to disclose these important facts, E. K. Wabwoto, J held as follows at para. 21 cited the Court of Appeal in Bahadurali Ebrahim Shamji v. Al Noor Jamal & 2 Others Civil Appeal No. 210 of 1997 where it stated: -
“It is perfectly well-settled that a person who makes an Exparte Application to the court – that is to say, in the absence of the person who will be affected by that which the court is asked to do – is under an obligation to the court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make the fullest possible disclosure then he cannot obtain any advantage from the proceedings, and he will be deprived of any advantage he may have already obtained. It has been for many years the rule of court, and one which it is of the greatest importance to maintain, that when an Applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts – facts, not law. He must not misstate the law if he can help it – the court is supposed to know the law. But it knows nothing about the facts, and the Applicant must state fully and fairly the facts, and the penalty by which the court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the court will set aside any action which it has taken on the faith of the imperfect statement…………
In considering whether or not there has been relevant non-disclosure and what consequence the court should attach to any failure to comply with the duty to make full and frank disclosure, the principles relevant to the issues in these appeals appear to include;
(i) The duty of the Applicant is to make full and fair disclosure of the material facts.
(ii) The material facts are those which it is material for the judge to know in dealing with the Application made; materiality is to be decided by the court and not the assessment of the Applicant or his legal advisers.
(iii) The Applicant must make proper inquiries before making the Application. The duty of disclosure therefore applies not only to material facts known to the Applicant but also to any additional facts which he would have known if he had made sufficient inquiries.
(iv) The extent of the inquiries which will be held to be proper, and therefore necessary, must depend on all the circumstances of the case including:-
a) The nature of the case which the Applicant is making when he makes the Application,
b) The order for which the Application is made and the probable effect of the order on the defendant, and
c) The degree of legitimate urgency and the time available for the making of the inquiries.
(v) If material non-disclosure is established the court will be astute to ensure that a Plaintiff who obtains an Exparte injunction without full disclosure is deprived of any advantage by that breach of duty.
(vi) Whether the fact not disclosed is of sufficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to issues which were to be decided by the judge in the Application. The answer to the question whether the non-disclosure was innocent, in the sense that the fact was not known to the Applicant or that its relevance was not perceived, is an important consideration but not decisive by reason of the duty on the Applicant to make all proper inquiries and to consider the case being presented.
(vii) Finally, it is not every omission that the injunction will be automatically discharged. A locus pentitentiae (chance of repentance) may sometimes be afforded. The Court has a discretion, notwithstanding proof of material non-disclosure which justifies or requires the immediate discharge of the Exparte order, nevertheless to make a new order on terms: when the whole of the facts, including that of the original nondisclosure, are before it, the court may well grant such a second injunction if the original non-disclosure was innocent and if an injunction could properly be granted even had the facts been disclosed…”
38. There is evidence that the deliberate concealment of obvious material facts on the part of the Ex – Parte Applicant no doubt precluded this court from doing justice to the 1st Interested Party.
39. In the case of Ruaha Concrete Co. Ltd et al versus Paramount universal Bank Ltd et al, HCCC No. 430 of 2002, cited in Halima Haji Sarah v Multiple Hauliers (E.A) Limited & another (supra) the Court further outlined the principles of non-disclosure and the consequences which will follow as a result of such non-disclosure as follows:-
“The duty is not to make full and fair disclosure of all material facts, the material facts are those which is material for the judge to know in dealing with the Application as made, materiality is to be decided by the Court, and not by assessment of the Applicant, and the Applicant must make proper inquiries before making the Application. The duty of disclosure therefore applies not only to any additional facts known to the Applicant but also to any additional facts which he would have known if he had made such inquiries. The extent of the inquiries which will be held to be proper, and therefore necessary, must depend on all the circumstances of the case including: -
a. The nature of the case the Applicant is making when he makes the Application.
b. The order for which the Application is made and the probable effect of the order on the Defendant or the Plaintiff.
c. The degree of the legitimate urgency and the time available for the making of the inquiries.”
40. In the instant case, it should be the finding of this court that indeed the Ex – Parte Applicant is guilty of material disclosure for conducting the Ex – Parte proceedings and obtaining the Directions and or Orders issued on the 1.7.2025 subject hereof without disclosing all material facts to the court.
41. In buttressing the threshold for reviewing , varying or setting aside Exparte orders it relies on a host of cases being Okiya Omtatah Okoiti v Joseph Kinyua & 2 others [2018] eKLR :-
“22. In The King –Vs- The General Commissioners for the Purposes of the Income Tax Act for the District of Kensington [1917]1 K.B. 486, Republic v Kenya Medical Training College & another Exparte Kenya Universities and Colleges Central Placement Service [20151 eKLR ,Margaret Wangui Karugu v John Njenga Karugu another 120181 eKLR”
42. The Exparte Applicant trust that had the information above been brought to this court’s attention, it would not have granted the interim Orders.
The Ex Party Applicant/Respondents Case;
43. The Ex Parte Applicant opposes the Notice of Motion dated 10th July 2025 filed by the 1st Interested Party on the following grounds:
1) Res Judicata / Functus Officio; The Application seeks orders whose effect is to reopen and vary interim orders already issued by this Honourable Court on 2nd July 2025, yet the Court is functus officio in respect of those directions, save as provided for under review jurisdiction which has neither been properly invoked nor justified.
2) Improper Forum for Relief Sought; the 1st Interested Party’s grievances relate to the propriety of interim stay orders granted by the Court and the merits of the Tribunal’s decision. Such matters ought to be canvassed in the substantive hearing of the Judicial Review Application, not by collateral Application that effectively pre-empts the main suit.
3) Sub Judice; the Application raises issues that are the subject of determination in the substantive judicial review motion being Milimani HCJR/E245/2025. Entertaining them at this stage risks determining the merits prematurely, contrary to the sub judice principle under Section 6 of the Civil Procedure Act. Vacating the stay now would render the substantive judicial review motion nugatory and cause irreversible prejudice to the Ex Parte Applicant by allowing execution of the Tribunal’s orders before their legality is tested.
4) Abuse of Court Process; the Application amounts to an attempt to re-argue issues already considered when the Court granted interim relief. It is a collateral attack designed to circumvent the structured timelines the Court set for disposal of the substantive motion.
5) No Demonstration of Prejudice; The 1st Interested Party has not shown that it will suffer prejudice incapable of being remedied at the final determination should the interim orders remain in force pending hearing of the main suit.
6) Public Interest Favours Final Determination on Merits; The matters raised involve governance of national football leagues and enforcement of sports regulatory decisions. Public interest requires that the legality of the Tribunal’s decision be determined substantively without disturbance of interim preservation orders.
7) Non-Compliance with Procedural Requirements; The Application as drawn fails to clearly identify the enabling provisions for setting aside interlocutory orders in judicial review proceedings and is therefore procedurally defective.
Analysis and determination;
Upon perusing the Application and upon perusing the supporting affidavit and the grounds of opposition, filed by the Exparte Applicant in response to the Application,this court finds the following to be the issues for determination;
1) Whether the Applicant has made out a case for the grant of the orders sought.
2) Who shall be the costs.
Whether the Applicant has made out a case for the grant of the orders sought.
44. In order to determine whether the Applicant has made out a case for the grant of the orders sought, the Applicant must demonstrate that its case fits within the principles that have been enunciated in the case of
Republic v Jubilee Party & another Ex parte John Kieru Wambui & another [2021] eKLR;
“5. The applicable law for setting aside or review of a judgment or decree of the court is section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Section 80 of the Civil Procedure Act provides as follows:
“Any person who considers himself aggrieved—
a. by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
b. by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”
6. Order 45 Rule 1 of the Civil Procedure Rules elaborates on the grounds on which a judgment or decree can be set aside as follows:
“(1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”
45. In the case of Paul Gathingu Gachie v Cabinet Secretary for Land & Physical Planning [2021] eKLR,
“5. The court has carefully considered the grounds on the notice of motion, the affidavit evidence by both parties, the submissions by learned counsel, the superior courts decisions cited therein, and come to the following conclusions;
That Order 51 Rule 15 of the Civil Procedure Rules provides for setting aside of ex parte orders in appropriate cases. The court in the case of ZEBEDEE MMATA INJERA V BENSON ANUBI LUHONG; JOANNE C.K. LUHONGO (INTERESTED PARTY) [2021] eKLR, expressed itself as follows on Order 51 Rule 15;
“… while Order 51 Rule 15 of the Civil Procedure Rules gives the court power to set aside any order made ex parte, the court's discretionary power should, however, be exercised judiciously, with the overriding objective of ensuring that justice is done to all the parties. That the court's discretion to set aside an ex parte ruling/judgment is not restricted, but should be so exercised not to cause injustice to the opposite party. It is incumbent upon the party seeking the court's favor or discretion to adduce sufficient and plausible reasons that are demonstrable, and persuasive to the court…”
46. According to the Exparte Applicant, since interim orders have already been issued by this Court on 2nd July 2025,the Court is functus officio in respect of those directions, save as provided for under review jurisdiction which has neither been properly invoked nor justified.
47. The Supreme Court in the case of Raila Odinga & 2 others v Independent Electoral & Boundaries Commission, Ahmed Issack Hassan, Uhuru Kenyatta & William Samoei Ruto (Petition 5, 4 & 3 of 2013) [2013] KESC 8 (KLR) (Civ) (24 October 2013) (Ruling) held as follows on the doctrine of functus officio;
“18. We, therefore, have to consider the concept of “functus officio,” as understood in law. Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 122 SALJ 832, has thus explicated this concept: “The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”
48. This argument is misplaced given that the Exparte order that was issued on 2nd July 2025 did not bring the litigation to an end.The suit is pending inter parties hearing. Further to that, this court has powers to exercise its discretion under Section 80 and Order 45 of the civil procedure act and rules in exercise of its discretion set aside, vary or review such orders where there is justification to do so like in the instant suit.
49. The Exparte Applicant further argues that the 1st Interested Party’s grievances relate to the propriety of interim stay orders granted by the Court and the merits of the Tribunal’s decision. Such matters ought to be canvassed in the substantive hearing of the Judicial Review Application, not by collateral Application that effectively pre-empts the main suit.
50. It is this court’s finding that it has jurisdiction, to review of the information that had been concealed once brought to its attention so as to establish whether or not the orders were obtained properly or not.
51. The Exparte Applicant’s argument that the Application raises issues that are the subject of determination in the substantive judicia
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