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ELRCPartially AllowedPetition dated 31.08.2023 (SDT Cause E004 of 2023 impugned)· [2023] KEELRC 3224 (KLR)

Gor Mahia FC v Sports Disputes Tribunal & another; Ayisi (Interested Party) (Petition E170 of 2023) [2023] KEELRC 3224 (KLR)

Employment and Labour Relations Court
7 December 2023
2,094 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled the Sports Disputes Tribunal cannot hear employment disputes, quashing a Kshs 2.2 million award against Gor Mahia.

What this practically means

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Executive summary

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Gor Mahia Football Club petitioned the Employment and Labour Relations Court challenging the Sports Disputes Tribunal's decision in SDT Cause E004 of 2023, in which a former player was awarded Kshs 2,225,500 against the club. The club contended that the Tribunal lacked jurisdiction over employment disputes, which under Article 162(2)(a) and the Employment and Labour Relations Court Act vests exclusively in the ELRC, and that parties cannot by agreement confer jurisdiction under section 58(b) of the Sports Act where the Constitution has granted it to another forum. It also alleged violations of Articles 27(1), 47 and 50(1), irrationality, and ultra vires action. The Attorney General opposed being joined as a party to a private employment dispute; the interested party argued the petitioner should have appealed and that the petition was res judicata, citing Orange Democratic Movement v Yusuf Ali Mohamed. The court held that the dispute was an employment contract claim falling within the ELRC's constitutional jurisdiction; that no agreement referring the dispute to the Tribunal was shown, and any such agreement would be null and void; that the petition procedure was proper because a decision rendered without jurisdiction is a nullity; and that the Attorney General was a necessary party. Judgment was entered for the petitioner with five declarations, an order of certiorari quashing the Tribunal's decision, and no orders on costs given the parties' circumstances.

Key legal issues

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01

Jurisdiction of the Sports Disputes Tribunal over employment disputes

Holding

The Tribunal lacked jurisdiction to hear and determine the employment dispute between the club and its player; such jurisdiction lies with the Employment and Labour Relations Court under Article 162(2)(a).

Reasoning

Section 58(b) of the Sports Act permits the Tribunal to hear other sports-related disputes only where all parties agree to refer the dispute and the Tribunal agrees to hear it. Although the Tribunal agreed, no agreement by the parties to refer was shown. In any event, parties could not contract out of the constitutional jurisdiction conferred on the ELRC; such an agreement would be null and void.

p. 5
02

Whether the petition was the proper procedure instead of an appeal

Holding

The petition was properly filed since the challenge was to the Tribunal's jurisdiction and the decision was a nullity.

Reasoning

The petitioner was entitled under Articles 23(1) and 258(1) to enforce the Constitution. Although an appellate route existed, the dispute concerned jurisdiction over an employment matter which belongs to the ELRC. The interested party's res judicata and appeal-route objections failed.

p. 5
03

Whether the Attorney General was a necessary party

Holding

The Attorney General was a necessary party given the constitutional role as Principal Legal Adviser and the statutory jurisdictional design in question.

Reasoning

The petition concerned statutory jurisdictional design on which the Attorney General's opinion would count seriously, overriding the ground of opposition that this was a private employment contract matter.

p. 5

Legal principles established

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  • Parties cannot, by agreement, confer on a tribunal jurisdiction which the Constitution and statute have vested in another court.
  • A decision by a tribunal without jurisdiction is a nullity and may be challenged by petition.

Court orders

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  1. 1.Declaration that the impugned Tribunal's decision is in violation of the Petitioner's right under Article 27(1) of the Constitution of Kenya 2010
  2. 2.Declaration that the impugned Tribunal's decision is in violation of the Petitioner's right under Article 47 of the Constitution of Kenya
  3. 3.Declaration that the impugned Tribunal's decision is in violation of the Petitioner's right under Article 50(1) of the Constitution of Kenya
  4. 4.Declaration that the 1st Respondent does not have jurisdiction over Employment Disputes under the Sports Act
  5. 5.Declaration that parties to a dispute cannot grant the Tribunal jurisdiction as set out at Section 58(b) of the Sports Act where the Constitution and the law have granted jurisdiction to another forum
  6. 6.Order of certiorari removing into the Employment and Labour Relations Court and quashing the decision in SDT Cause E004 of 2023
  7. 7.No orders on costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 23(1), 27(1), 47, 50(1), 162(2)(a), 258(1)
  • Sports ActSection 58(b)
  • Employment ActSection 90
  • Employment and Labour Relations Court ActNot specified

Cases cited (1)

  • Orange Democratic Movement v Yusuf Ali Mohamed & 5 others (2018) eKLR
    (2018) eKLR
Jurisdiction invoked
Article 23(1) and 258(1) of the Constitution; Article 162(2)(a) as read with the Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gor Mahia FC v Sports Disputes Tribunal & another; Ayisi (Interested Party) (Petition E170 of 2023) [2023] KEELRC 3224 (KLR)", Case Analysis (2023). Petition dated 31.08.2023 (SDT Cause E004 of 2023 impugned). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3224/eng@2023-12-07

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