KCB Sports Club v Sports Disputes Tribunal & another

and constructive dismissal, and by granting remedies reserved to a court of the forum vested with employment and labour relations jurisdiction under article 162(2)(a) of the constitution and section 12 of the Employment and Labour Relations Court Act. iv. In the alternative, a declaration be issued that the impugned judgment is unlawful, unreasonable, irrational, procedurally unfair and contrary to article 47 of the constitution and section 7 of the Fair Administrative Action Act to the extent that the 1st respondent recharacterised a squad registration and training management decision as a constructive dismissal without any resignation, termination or election by the 2nd respondent to treat the contract discharged; re-wrote the parties contract by creating a right to main-squad training and meaningful competitive participation not pleaded or provided for in the contract; shifted the evidential burden to the applicant to justify the Head Coach’s technical assessment’ awarded residual salary notwithstanding continued payment of salary; awarded general damages for alleged loss of opportunity without strict proof; ad compelled issuance of a release letter despite absence of a lawful termination. v. Costs of the application. 4. The basis of the application is set out in the Supporting Adavit of Bramwel Simiyu, the chairperson of the applicant, who avers that the 1st respondent delivered judgment on 7 April 2026 in favour of the 2nd respondent against the applicant. The applicant is a professional football club competing in the FKF Premier League. It was the respondent before the 1st respondent. 5. The applicant engaged the 2nd respondent under a xed-term contract from 15 July 2023 to 30 June 2026 at a monthly salary of Ksh. 122,000. Such employment and contract subsists. The applicant has continued to pay the 2nd respondent monthly. 6. Simiyu avers that in June 2025, the applicant’s head coach, Robert Matano, assumed the role and undertook a technical and tactical assessment of the team for the 2025/2026 season. The head coach acted in the ordinary course of his professional management of the football team and planning. 7. FKF registration rules limit a club's registration squad for the season to 30 players. Following the head coach's assessment, the head coach formed a professional opinion that the 2nd respondent would not be among the 30 registered players for the season. By letter dated 7 August 2025, the applicant informed the 2nd respondent that he would not be among the 30 team members registered with FKF and, without prejudice, oered him a mutual separation agreement package equivalent to 2 months' salary and salary for August, if he agreed to the agreement and exited. The letter also oered that where the same was not acceptable, the applicant would continue to pay the due monthly salaries under the term contract. 8. The 2nd respondent declined the mutual separation agreement. No agreement was concluded, and the applicant continued to pay its contractual obligation under the term contract. 9. Simiyu avers that the 2nd respondent led a claim before the 1st respondent alleging breach of contract and constructive dismissal. He sought residual salary for the remainder of the contract, meal allowances, compensation for alleged loss of opportunity and a formal release letter. The people can't deny these claims since there was no dismissal or termination of contract as alleged. There were monthly payments, and the non-registration to the squad was a technical and sporting decision made by the head coach within his professional discretion. 10. On 7 April 2026, the 1st respondent delivered judgment and held that the mutual separation oer did not terminate the contract and that no separation occurred. The 2nd respondent's non-registration for the Premier League season was not a breach of contract. However, the 1st respondent held that the https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2069/eng@2026-07-16 2

page 2 of 8

applicant had breached the contract and constructively dismissed the 2nd respondent by excluding him from training with the rest of the team and from competitive football. The 1st respondent thus awarded him a residual salary capped at Ksh. 854,000 subject to deductions for proven payments made after ling, Ksh. 366,000 as general damages for loss of opportunity and career disruption, release letter and costs. 11. Simiyu avers that the 1st respondent acted outside its jurisdiction because the dispute before it was not an employment or constructive dismissal claim and does not fall within the provisions of section 58 of the Sports Act. These proceedings thus seek a judicial review of the orders and judgment of the 1st respondent, particularly the overreach of jurisdiction. Unless the orders sought are issued, the 2nd respondent will execute the judgment of the 1st respondent to the detriment of the applicant. 12. On the application by the 2nd respondent seeking an order dated 11 May 2026 for security for costs of opposing the judicial review application, the 2nd respondent relies on section 1A, 1B, and 3A of the Civil Procedure Act, Order 25 of the Civil Procedure Rules. His grounds are that on 7 April 2026, the 1st Respondent delivered judgment in SDTSC/E096/2025 in his favour, declaring that the applicant had breached his employment contract and constructively dismissed him, and awarding him residual salary, general damages, and a release letter with costs. 13. In his Support Adavit, the 2nd respondent averred that the applicant led these proceedings seeking to quash the entire judgment of the 1st respondent. Interim orders were granted, staying execution. Following these proceedings, the 2nd respondent is incurring substantial legal costs in defending against a judgment delivered after a full hearing. 14. The 2nd respondent averred that the power to order security is vested in the court under Order 25 of the Civil Procedure Rules and under the inherent jurisdiction of the court. An order for security for costs is justied in this case. The eect of these proceedings has the eect of plunging access to the awards in the 1st respondent judgment, and prospects of success in the application herein are weakened by the conduct of the applicant before the 1st respondent proceedings. The objective of the law is to ensure justice, not to regard technicalities. 15. In reply, the applicant led the Replying Adavit of Bramwel Simiyu, the chairperson, who avers that the applicant is ready and willing to dispose of its liability to the 2nd respondent upon the determination of the application herein. The applicant remains at its xed place of business with no chance of evading court directions. It is a business enterprise and is thus ready and willing to meet its nancial and legal obligations upon the decision of the court herein. The applicant has been paying the 2nd respondent his monthly salary despite the ongoing litigation. 16. The orders sought for security for costs are untenable, not justied and should be dismissed with costs. The applicant is exercising its rights in law and seeking judicial review orders founded in law. The issues before the court should be determined on the merits. 17. There was no response from the 1st respondent. 18. The applicant submitted that in Gor Mahia FC v the Sports Tribunal & Another; Ayisi (Interested Party) Petition E170 of [2023] the court held that where the dispute before the tribunal was founded on contract of employment between a football club and a football player, jurisdiction lay with the Employment and Labour Relations Court and the parties cannot confer jurisdiction on the Sports Tribunal under section 58 (b) where the Constitution and statute vested the jurisdiction in another forum. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2069/eng@2026-07-16 3

page 3 of 8

19. The tribunal did not conne itself to the selection, registration or internal sporting governance. It determined constructive dismissal and breach of the employment contract, and then awarded salary, damages, release, and costs. That these orders are characteristic employment remedies and cannot be saved by describing the background facts as sports-related. The impugned judgment was accordingly rendered without jurisdiction, or at the very least in excess of jurisdiction. 20. The applicant also submitted that in Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd [2013] KEELRC 920 KLR, the court held that constructive dismissal has its roots in the doctrine of discharge by breach where the employee treats himself as discharged because the employer’s conduct goes to the root of the contract. The applicant also relies on the Court of Appeal case of Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] KECA 394 (KLR) that the key element is that the employee is entitled to leave without notice because of the employer’s conduct, whether under the contractual test or the reasonableness test. 21. The 2nd respondent did not resign; he did not elect to treat the contract as discharged, but, on the contrary, rejected the mutual separation oer, demanded reinstatement, and accepted continued salary payments, which is legally unsustainable and inconsistent with constructive dismissal. 22. In Kenya National Examinations Council v Republic ex parte Georey Gathenji Njoroge & 9 others [1997] e KLR, the court held that the order of certiorari is issued to quash a decision already made where the decision-maker acted without or in excess of jurisdiction, or in breach of the rules of natural justice. 23. The impugned judgment of the 1st respondent determined an employment dispute outside the Tribunal’s statutory remit and made consequential orders for salary, damages, release and costs. Once the jurisdictional foundation collapses, the entire judgment and all consequential orders must fall. 2. The 2nd respondent submitted that the applicant is estopped from challenging the Tribunal’s jurisdiction by reason of its own express, unequivocal, and repeated concession of that jurisdiction in the proceedings thereof. In Sofapaka Football Club v Sports Dispute Tribunal & 3 others [2024] KEELRC 924 (KLR), the court held that a party’s failure to object to jurisdiction before the Tribunal and its subsequent full participation in proceedings constitute submission to that jurisdiction. The applicant did not merely fail to object; it expressly conceded jurisdiction in submissions drafted by counsel. 25. The 1st respondent had jurisdiction under section 58 of the Sports Act, which covers sports-related disputes. A dispute arising from a professional football employment contract between a player and his club is plainly a sports-related dispute. The case of Gor Mahia cited above is distinguishable because the objection was raised at the earliest possible stage. 26. On the constructive dismissal, the 2nd respondent submitted that in Western Excavating Ltd v Sharp [1978] QB 761 adopted by the Court of Appeal in Coca Cola East & Central Africa Limited vs Maria Kagai Ligaga [2015] KECA 349 (KLR) the court held that an employee is entitled to treat himself discharged where an employer is guilty of conduct constituting a signicant breach going to the root of the contract, and is related to the employer’s rather than the employee’s conduct. 27. The respondent’s protest was unambiguous, as can be seen from the two formal demand letters dated 24 September 2025 and 3 October 2025, a complaint to the FKF dated 28 October 2025 and a notication to the applicant dated 5 November 2025. The Tribunal was accordingly entitled to nd that there was constructive dismissal. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2069/eng@2026-07-16 4

page 4 of 8

28. The judgment of the 1st respondent is not reviewable as this Court does not sit as an appellate court. The enquiry, as stated in Associated Provincial Pictures Ltd v Wednesbury Corp [1948] 1 KB 223, should be conned to legality, rationality and procedural fairness. 29. The Court should vary the interim stay order granted on 7 May 2026 to exclude the order requiring the applicant to issue a release letter, as the respondent established he has a good case per the principles set out in Giella v Cassman Brown & Co Ltd [1973] EA 358, that once a prima facie case with a probability of success is established, the orders sought should issue. Determination 30. The two applications dated 4 and 11 May 2026 raise issues, and the question is whether the court should order the applicant to furnish security for the 2nd respondent's costs of opposing the judicial review application. Whether the 1st respondent exceeded its jurisdiction in the judgment delivered on 7 April 2026. Whether the applicant is entitled to an order of certiorari, prohibition and costs. 31. It is common cause that there is an employment contract between the applicant and the 2nd respondent, xed-term, running from 15 July 2023 to 30 June 2026, at a monthly salary of Ksh. 122,000. Such a relationship subsisted at the time the proceedings were led. The 2nd respondent has not challenged the fact that he has been receiving his monthly salary despite ongoing litigation before the 1st respondent and during these proceedings. There are payment statements attached to the Replying Adavit of Bramwel Simiyu dated 8 June 2026. 32. It is a common cause that the 1st respondent is governed under the Sports Act. 33. On the question of security for costs, the 2nd respondent has relied on Order 25 of the Civil Procedure Rules. However, having acceded to the jurisdiction of the court, the proper Rule of application is Rule 68(3) of the Employment and Labour Relations Court (Procedure) Rules. Under the Rule, an applicant must demonstrate that its interest will be defeated or frustrated if the court does not order security for costs pending the hearing of the suit. Hence, the court should order and impose conditions, including the deposit of security for due satisfaction of the relief if the applicant is successful upon a nal determination of the suit. 3) Where it is shown that the satisfaction of a relief as may be granted in a pending suit may be defeated or frustrated, the Court may, (Upon (application, make an order imposing conditions including deposit of security for due satisfaction of the relief if the applicant is successful upon nal determination of the suit. 34. Under the Civil Procedure Act and the Rules thereto, the court may order security for costs where it is established that a party has no known assets in the Country, absence of an oce within the jurisdiction of the court, inability to pay costs; the general nancial standing or wellness of the party; the bona des of the claim, or any other relevant circumstances or conduct thereof. These are factors to be taken into account as held in Jayesh Hasmukh Shah v Narin Haira & another (2015) eKLR. 35. However, in employment and labour relations, the principal objections of the court are dierent pursuant to section 3 of the Employment and Labour Relations Court Act read together with the Rules, which require parties to be heard without undue regard to technicalities and to facilitate the just, expeditious, ecient and proportionate resolution of disputes governed by this Act. 36. Upon the court being seized of these proceedings, interim orders were found necessary. These have been applied pending the hearing herein. To order security for costs in defending these proceedings would impose an unnecessary burden on the applicant without a justied cause. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2069/eng@2026-07-16 5

page 5 of 8

37. On the jurisdiction of the 1st respondent, indeed, the foundation of these proceedings is the employment relationship subsisting between the applicant and the 2nd respondent. Any claim arising therefrom, the court with original jurisdiction is the court under Article 162(2) (a) of the Act. 38. The court recognises that the 1st respondent, as a tribunal, is subordinate to the court. It is governed under the Sports Act. Its jurisdiction is set out under section 58 of the Sports Act, which provides: The Tribunal shall determine— a. appeals against decisions made by national sports organizations or umbrella national sports organizations, whose rules specically allow for appeals to be made to the Tribunal in relation to that issue including — i. appeals against disciplinary decisions; ii. appeals against not being selected for a Kenyan team or squad; b. Other sports-related disputes that all parties to the dispute agree to refer to the Tribunal and that the Tribunal agrees to hear; and c. appeals from decisions of the Registrar under this Act. 39. Under the Constitution Act, the 1st respondent has no mandate to hear and determine employment disputes. Such mandate is vested in the court as held in Bandari Football Club v Sports Tribunal & another [2025] KEELRC 3332 (KLR) and Sofapaka Football Club v Sport Tribunal & 2 others [2022] KEELRC 697 (KLR). 40. Before the 1st respondent, the 2nd respondent led a claim, alleging that the applicant employed him on a xed-term contract for professional football. He was not included in the 2025/2026 season team following a decision by the head coach, who was required to eld a team of 30 players under FKF rules. The applicant oered him a separation agreement, which he declined. The alternative was to continue the employment relationship to the end. Aggrieved, the 2nd respondent led a claim with the 1st respondent alleging breach of contract and constructive dismissal and thus claimed: 41. a. Residual salary for alleged breach of contract. b. Meal allowances, c. Loss of opportunity. d. Release letter. e. Costs. In its judgment on 7 April 2026, the 1st respondent held that the applicant had the discretion to select team members for the league season and that there was no breach of contract. However, the 1st respondent found constructive dismissal through exclusion from team training and meaningful participation. It thus awarded the following: a. Residual salary Ksh. 854,000; b. General damages Ksh. 366,000 for loss of opportunity and career disruption. c. A formal release letter. d. Costs. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2069/eng@2026-07-16 6

page 6 of 8

4.2 It is trite law that jurisdiction is everything, and without it, a court must lay down its tools. This principle has held to date.See Owners of the Motor Vessel “Lilian S” v Caltex Oil Ltd [1989] eKLR; Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR). 43. Thus, whereas the jurisdiction of the 1st respondent is set out under section 58 of the Sports Act, it cannot go beyond its powers as regulated under section 59 thereof: 59. Powers of the Tribunal 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. 4.4 Upon nding no breach of contract, the foundation for the 2nd respondent's claim was lost. The rationale is that the nding of constructive dismissal, due to loss of opportunity and career disruption, then became a question of law subject to the court's interpretation. The ordinary meaning of constructive dismissal is a term that applies in an employment relationship where the employer has frustrated it, leading the employee to terminate it, as outlined in Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] KECA 394 (KLR). It is thus a contradiction to nd that there is no breach of contract yet to nd the applicant liable for constructive dismissal. 45. Constructive dismissal is a concept not addressed under the Sports Act or the Employment Act. It has resulted from the court's interpretation of the employment relationship and the view that the rights under Article 41 of the Constitution, as held in the Coca-Cola case cited above. 46. The context of the employment relationship must be considered. The foundation of the claim of constructive dismissal must be demonstrated. 47. In this case, employment is ongoing. Payment of the due salary has been made. Neither party has severed the relationship. The fact of no breach of contract is not challenged. 48 Even in a case where the applicant acceded to the jurisdiction of the 1st respondent leading to the judgment delivered on 7 April 2026, where the ndings thereof went outside the mandate granted under the Sports Act and touched on the employment relationship between the parties, the proceedings herein seeking to quash a decision without jurisdiction are proper and sound. 49. The essence of the 2nd respondent's claim before the 1st respondent was an employment relationship. It did not invoke the mandate of the 1st respondent under section 58 of the Sports Act. 50. The basis of the claim removed jurisdiction from the 1st respondent. 51. Without jurisdiction, the outcome thereof challenged under these proceedings is with merit. 52. On costs, having acceded to the proceedings before the 1st respondent, the analysis above and the challenge to jurisdiction necessary, the proceedings herein are with good foundation. However, at the time of ling these proceedings, the parties were still in an employment relationship. For industrial peace, each party shall bear its costs for the tribunal proceedings. 53. Accordingly, the application herein by the applicant is with merit and the following orders are issued: a. An order of prohibition is issued restraining the respondents from proceeding with or otherwise executing the 1st respondent's judgment delivered on 7 April 2026 in SDTSC/ E096/2025 and the entire proceedings thereof. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2069/eng@2026-07-16 7

page 7 of 8

b. An order of certiorari removing into this court and forthwith quashing the 1st respondent's judgment and order thereof of 7 April 2026 and the entire proceedings in the SDTSC/ E096/2025 is issued. c. Each party to bear its costs. DELIVERED IN OPEN COURT THIS 16TH DAY OF JULY 2026 M. MBARŨ JUDGE In the presence of: Court Assistant: Kemboi ……………………………………………… and …………………………………..……… https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2069/eng@2026-07-16 8

page 8 of 8