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Court of AppealPartially AllowedCivil Appeal (undetermined from the judgment text)

Athletics Kenya v Tanui & 12 others (Civil Appeal E229 of 2024) [2025] KECA 509 (KLR)

Court of Appeal of Kenya
21 March 2025
4,988 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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The Court of Appeal ruled that Athletics Kenya officials keep their seats because transitional service doesn't count toward term limits, and courts can't impose unpleaded penalties.

What this practically means

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Executive summary

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This is a Court of Appeal judgment at Nairobi (Nyamweya, Muchelule and Odunga, JJA) delivered on 21st March 2025, allowing in part an appeal by Athletics Kenya against a High Court decision in a petition by former athletes. The petition challenged the process by which Athletics Kenya amended its constitution, registered under the Societies Act, to comply with the Sports Act, 2013, and the issuance of a Certificate of Registration by the Registrar of Sports. The High Court declared that the appellant owed the public a duty of consultation under Article 10(2) of the Constitution and section 46(6) of the Sports Act, directed a further constitutional review, ordered the officials and Executive Committee, having served a cumulative eight years since the Act came into force, to vacate office, and barred them from contesting any position. On appeal, the appellant did not challenge the direction to review its constitution. The Court found that the officials served during a statutorily preserved transitional period, that this period could not count toward computing their tenure, and that sections 46 and 49 of the Sports Act do not provide for their removal. It also held that the order barring re-election was neither pleaded nor granted after a hearing, and that without a properly filed cross-appeal the respondents could not invite the Court to fashion fresh reliefs; the respondents' Notice of Cross-Appeal, filed out of time, was struck out. The appeal was allowed and the removal and ineligibility orders set aside, with no order as to the costs of the appeal, the dispute being public litigation. This ruling binds subordinate courts and the High Court on the transitional-tenure and unpleaded-relief propositions.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the order directing the appellant's officials and Executive Committee members to vacate office after a cumulative 8 years was sustainable under sections 46 and 49 of the Sports Act
  2. 2.Whether the order barring the executive committee members from re-election could stand where it was neither pleaded nor granted after a hearing
  3. 3.Whether the Court could fashion reliefs not granted by the trial court in the absence of a properly filed cross-appeal

Key legal issues

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01

Whether transitional service under the Sports Act counts toward an official's tenure

Holding

Service during the statutorily preserved transition cannot count in computing tenure; the trial judge erred in computing a cumulative 8-year term

Reasoning

The parties had, by consent of 10th May 2017, stayed the elections pending the petition. During the constitutional review the law preserved the appellant's existing status for transition. Counting that period toward tenure would leave no one in office to effect the transition, which could not have been the legislative intent. Further, sections 46 and 49 do not provide for removal, so the judge relied on irrelevant provisions.

p. 8
02

Whether an unpleaded order of ineligibility for re-election could stand

Holding

It could not: no such relief was pleaded and the officials had to be heard before being barred

Reasoning

The petitioners never sought an order barring the executive committee members from re-election. Granting it deprived those officials of the right to be heard on a matter directly affecting them. The judge's order also contradicted his own direction that the appellant amend its constitution.

p. 9
03

Whether the appellate court could grant fresh reliefs without a cross-appeal

Holding

It could not; the Notice of Cross-Appeal was struck out as out of time and reliefs could not be fashioned for the respondents

Reasoning

Counsel for the respondents urged the Court to issue relevant orders on the pleadings in the interest of justice. The Court held that without a properly filed cross-appeal there was no jurisdictional basis to fashion reliefs beyond those the trial court granted or the appellant challenged.

p. 9
04

Whether the challenge to the constitution-review order was live

Holding

The appellant did not challenge the order directing further review of its constitution, so that order remained undisturbed

Reasoning

Of the three substantive reliefs granted below, the appellant abandoned the grounds attacking the direction to properly amend the constitution; only the removal and ineligibility orders were challenged and set aside.

p. 9

Legal principles established

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  • Transitional tenure under the Sports Act cannot be counted in computing officials' substantive terms of office
  • Sections 46 and 49 of the Sports Act do not provide for removal of officials of a sports organization
  • A trial court cannot grant relief that was not sought and which affects parties who were not heard
  • An appellate court cannot fashion reliefs for a respondent without a properly filed cross-appeal

Court orders

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  1. 1.The Notice of Cross Appeal filed by the 1st to 10th respondents was struck out as filed out of time
  2. 2.The appeal was allowed
  3. 3.The orders directing the officials and Executive Committee of the appellant to forthwith vacate office and declaring them ineligible to contest for any position in the organization were set aside
  4. 4.No order as to the costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
null
Jurisdiction invoked
First appellate jurisdiction over the High Court (Constitution of Kenya, 2010, Article 164(1)(a) and applicable appeal provisions) - the judgment does not state the specific provision

Relief refused

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Respondents' request that the Court fashion appropriate reliefs notwithstanding the striking out of the cross-appeal

Without a properly filed cross-appeal the Court had no basis to fashion reliefs not granted by the trial court

p. 9

Appellant's application to admit the Notice of Cross Appeal out of time (raised by respondents)

The Court found no basis for admitting a cross-appeal filed out of time

p. 8

Costs

No order as to the costs of the appeal, the dispute being in the nature of public litigation; at the trial court, each party was to bear its own costs of the Petition.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the premises, we allow the appeal and set aside the orders directing the oficials and Executive Committee of the appellant to forthwith vacate ofice and that they are ineligible to contest for any position in the organization.
p. 9Disposition - appeal partially allowed; removal and ineligibility orders set aside
We make no order as to the costs of the appeal, this dispute being in the nature of public litigation.
p. 9Costs of the appeal
Although Mr Kibe Mungai pleaded with the Court to admit the said Notice of Cross-Appeal, we found no basis for doing so hence the Notice of Cross Appeal was struck out.
p. 8Striking out of out-of-time cross-appeal
Accordingly, the learned Judge erred in relying on irrelevant legal provisions in granting the orders removing the appellant's oficials and executive committee members from the ofice.
p. 9Error of relying on sections 46 and 49 of the Sports Act for removal of officials
It cannot therefore be said that during the said period, a period when the said oficials had to be in the ofice, courtesy of a legal provision, in order to efiect the transition, the said oficials could be said to have been in the ofice for the purposes of computing their tenure in the ofice.
p. 8Transitional service excluded from tenure computation

Issues in the judgment

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minor

The case number of this appeal and the neutral citation do not appear in the judgment text; the coram appears only in the delivery block

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Athletics Kenya v Tanui & 12 others (Civil Appeal E229 of 2024) [2025] KECA 509 (KLR)", Case Analysis (2025). Civil Appeal (undetermined from the judgment text). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/509/eng@2025-03-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.