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ELRCDismissedPetition No. E130 of 2026

Gor Mahia FC v Sports Disputes Tribunal & another; Sydney Ochieng Wahongo (Interested Party)

Employment and Labour Relations Court of Kenya
28 September 2026
5,498 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Gor Mahia lost its bid to overturn a Kshs 2.8 million award to a former player because it used the wrong court process in Kenya.

What this practically means

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Executive summary

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Gor Mahia FC petitioned the ELRC against a judgment of the Sports Disputes Tribunal in SDT Cause E059 of 2025, in which the Tribunal awarded its former player, the Interested Party, Kshs. 2,800,000/= for unpaid salary and salary for the unexpired term of his contract. The Petitioner sought declarations that the Tribunal's decision violated Articles 27(1), 47 and 50(1) of the Constitution, declarations that the Tribunal lacked jurisdiction over employment disputes under section 58(b) of the Sports Act, and certiorari to quash the Tribunal's decision. The Tribunal did not respond; the Attorney General opposed the Petition as against it; the Interested Party argued the Petition was an appeal disguised as a constitutional petition, that the Petitioner was estopped by its full participation before the Tribunal, and that professional football disputes fall within the specialist Tribunal's mandate, supported by expert evidence on the FIFA RSTP. The court framed three issues: whether the Petition met the constitutional pleading threshold, whether it was properly before the Court, and whether the reliefs were available. Applying Anarita Karimi Njeru, the court found the Petition lacked precision, the grievance being on behalf of the Court rather than the Petitioner, whose voluntary participation before the Tribunal made the Petition an afterthought. Applying the doctrine of constitutional avoidance from Communications Commission v Royal Media Services and KKB v SCM, the court held that judicial review under the Fair Administrative Actions Act, not a constitutional petition, was the proper remedy. The Petition was struck out/dismissed with costs, though the judgment contains conflicting final orders on costs.

Questions the Court framed

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

  1. 1.Whether the Petition meets the threshold for constitutional petitions
  2. 2.Whether the Petition is properly before this Court
  3. 3.Whether the Petitioner is entitled to the reliefs sought

Key legal issues

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01

Whether the Petition met the Anarita Karimi Njeru precision threshold

Holding

It did not; the grievance was on behalf of the Court and no precise violation of the Petitioner's own rights was demonstrated

Reasoning

The court examined paragraph 2.3 of the Petition and found the complaint framed as an injury to the Court's powers rather than to the Petitioner's rights. The Petitioner had voluntarily participated in the Tribunal proceedings and only felt aggrieved at the adverse outcome, so the Petition was an afterthought failing the precision test.

p. 16
02

Whether the Petition was properly before the Court given alternative statutory remedies

Holding

It was not; constitutional avoidance applied and judicial review under sections 7 and 9 of the Fair Administrative Actions Act was the proper route

Reasoning

Applying Communications Commission v Royal Media Services and KKB v SCM, the court held that where an adequate statutory mechanism exists to challenge a tribunal's decision, the Constitution should not be invoked merely out of dissatisfaction with the outcome. The challenge to the Tribunal's decision belonged to judicial review.

p. 22
03

Whether the Sports Disputes Tribunal's decisions are challengeable by way of petition in the ELRC

Holding

The court was not persuaded that they are; the Tribunal is a judicial body clothed with jurisdiction over sports disputes

Reasoning

The court accepted that the Tribunal is a specialist statutory body with jurisdiction to hear and determine sports disputes, and that its decisions cannot be attacked in the ELRC by constitutional petition. This disposed of the jurisdictional challenge under section 58(b) of the Sports Act without reaching the merits.

p. 22

Legal principles established

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  • A court will not determine a constitutional issue where the matter may properly be decided on another basis (constitutional avoidance)
  • A person aggrieved by an ultra vires decision should seek judicial review, not a constitutional petition
  • A constitutional petition must set out with reasonable precision the complaint, the provisions infringed and the manner of infringement

Court orders

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  1. 1.The Petition struck out with no orders as to costs (paragraph 39)
  2. 2.The Petition dismissed with costs to the 2nd Respondent and the Interested Party (paragraph 40)

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2) of the Constitution (ELRC jurisdiction); petition invoking Articles 27(1), 47(1) and 50(1)

Relief refused

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Declarations of violation of Articles 27(1), 47 and 50(1) of the Constitution

Petition failed the Anarita Karimi Njeru precision test; grievance was on behalf of the Court, not the Petitioner

p. 16

Declarations on jurisdiction under the Sports Act and certiorari quashing SDT Cause E059 of 2025

Constitutional avoidance; adequate statutory remedy of judicial review under the Fair Administrative Actions Act existed

p. 22

Costs

Dismissed with costs to the 2nd Respondent and the Interested Party (though paragraph 39 states the Petition is struck out with no orders as to costs - an internal inconsistency)

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.

The Upshot of the foregoing is that the Petition is not properly before this Court and is hereby with no orders struck out as to costs.
p. 22Disposition - striking out
that the Petition is not properly before this Court and is hereby dismissed with costs to the 2nd Respondent and the Interested Party.
p. 22Final orders - dismissal with costs
In the courts view the Petition does not meet the test of precision established in the Anarita Karimi Njeru case.
p. 16Failure of constitutional pleading threshold
It is trite law that a person aggrieved by a decision made by a body acting ultra vires, ought to seek judicial review and not through a constitutional petition.
p. 21Proper remedy for ultra vires decisions
The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis.
p. 16Doctrine of constitutional avoidance

Issues in the judgment

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material

Conflicting final orders: struck out with no orders as to costs versus dismissed with costs

minor

Judgment dated 28 September 2026 but COVID-19 delivery directions of March/April 2020 still invoked

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, "Gor Mahia FC v Sports Disputes Tribunal & another; Sydney Ochieng Wahongo (Interested Party)", Case Analysis (2026). Petition No. E130 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2636/eng@2026-09-28

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