Friday, August 5, 2011

Silence In Court

Away from the field, where AFC Leopards always shines, an interesting match-up was taking place at the Milimani Commercial Courts in the High Court at Nairobi where two fans or members of the team (also called “the Applicants”) have taken legal action in respect of the persons running the team.

The case was listed for hearing of the application to declare the actions of the Minister of Youth Affairs and Sports, the Secretary in the same Ministry, the Registrar General and the Attorney General (the four cumulatively referred to as “the Respondents”) as illegal in recognizing the current Executive committee of the club led by Alex ole Magelo. The Executive Committee had joined in the case as an “Interested Party”.

Justice Musinga was presiding and the case didn’t kick off until a few minutes past noon. The three lawyers appearing for the applicants, the Respondents and the Interested Party were all present.

The Respondents Advocate started off by informing the court that he had not filed any replying papers to the application by the Applicants. Having looked at the correspondence and the court papers, the office of the Attorney General (‘AG’) had given a Legal Opinion to the Ministry of Sports that the action to recognize the Executive Committee (EC) led by Ole Magelo by the Registrar General was wrong.

The Respondents therefore wished to enter into a consent settlement with the applicants but were seeking the courts authority on how not to interfere with the rights of the Interested Party. If it was possible, the AG could stand aside from the dispute and let the Applicants and the Interested Party contest the matter.

Judge: Have you spoken to both lawyers for the Applicants and the Interested Party.

AG: We have spoken to the applicant’s lawyer but not to the Interested Party lawyer.

Judge: So what sort of advise have you given to the Ministry?

AG: We have advised that certain provisions of the law were not followed. Therefore the Registrar General should remedy this by withdrawing her letter recognizing Ole Magelo as the Chairman and the entire EC. However, one needs to look at the provisions of Section 18 of the Societies Act.

Judge: According to your Opinion, does it nullify what the Registrar General did?

AG: Yes!

The lawyer for the Applicants then confirmed that he had received a draft consent to that effect allowing for certain prayers that had been made to the court by the Applicants. He also reiterated that the club had not been taken to court; it was the Respondents who had been taken to court in respect of decisions that they made. If they come back and say their decisions were wrong, then the matter should end there and the current EC should vacate office.

The lawyer for the Interested Party complained that he had been left out of the discussions on the settlement of the matter. The interests of the Interested Party should not be ignored. He pointed out that the legal Opinion referenced was not even part of the court record. “How can one respond to such advice?’ he wondered. He felt that this may be the opinion of only one lawyer at the AG’s office and was therefore unreliable. He insisted that the matter should proceed in court.

Judge: Do you want to proceed despite the concession by the Respondents?

IP: Yes. Elections took place at the club and there is a new office in place. Their term is ending on 31st December 2011 because the clubs constitution says that the term of office of the EC is one year. We cannot have a scenario where the club is being forced to have elections during the middle of the season! The interested party has raised triable issues such as the authenticity of the applicants. Are they really members of AFC Leopards? Further, the previous office led by Julius Ochiel had conceded to some of the aspects of the elections that took them out of the office so they can not turn around and say they were not part of the whole election process.

Judge: OK, since you have filed written submissions, you all get some time to highlight your submissions.

The lawyer for the applicants went first and he reiterated that the Minister of Sports had no power to appoint any board to manage elections at AFC Leopards as a society. He didn’t have those powers under the Societies Act or under the Constitution.
This is why the Ministry officials had written to the Registrar seeking clarification on whether they had powers to appoint an interim Board. In the end, the Registrar confirmed to them that the Minister doesn’t have those powers! So the Board (chaired by Gordon Oluoch) to run affairs of the club was appointed illegally. This is the Board that called the elections.

On the issue of whether the office of the AG had powers to delegate its functions to the Minister, he argued that they could not. This could only be done by notice in the Kenya Gazette as per the provisions of law.

On the issue of the documents that were filed by the Interested Party, the lawyer indicated that they bore some falsehoods. For instance, they confused the two Boards that were formed at AFC Leopards. There was one formed after a meeting between the sponsors, the contestants, FKL which was in effect the Electoral Board. The applicants were registered as members of the club pursuant to this Board. This is not the same Board that was appointed by the Minister to run affairs at Leopards!

He also confirmed that he had attached the membership cards of the applicants. For the Interested Party to say these are not members of the club, they need to show that there is police report that they were fraudulent cards. There can be no better evidence of membership at AFC Leopards than by a membership card!

Curiously, the Interested Party didn’t attach a member register to show who the members of the club are son that one could claim that the applicants are not members! He pointed at Section 25 of the Societies Act that says the Register of members needs to be maintained by the EC.

He emphasized once again that the Respondents had conceded that they made an error! How can Ole Magelo and his group then come and say, ‘No, there was no error!’

It was then the turn of the IP lawyer to respond. In his submissions he stated that it was in the letter and spirit of Section 18 of the Societies Act to make the decision that was made to regfsieter the Ole Magelo group. This section gives the Registrar powers to give directions on the conduct of affairs by the Society in as far as elections are concerned.

In fact, in the event that valid elections are not carried out, the Registrar is supposed to cancel the registration of that society. Imagine the cancellation of the registration of AFC Leopards so that it becomes an illegal body! Therefore the Registrar took a judicious decision owing to circumstances.

The Registrar did not make a decision when she did the letter recognizing the Ole Magelo team. She merely confirmed the officials. The decisions had already been made by the members of the club at the elections.

Therefore it is not the Registrar who gave Magelo and his team the mandate. The mandate was given at elections. No motion has been filed seeking the annulment of those elections!
The former office of Ochiel is the one that allowed ‘third parties’ to run the elections. They cannot turn around and say that those people are strangers to the club. They not only sat with other members of the then EC but also with another stranger Mumias Sugar and agreed on modalities of the Annual General Meeting and the elections. This meeting even said the Elections Board should appoint a Chairman who was the Commissioner of Sports.

Therefore the Registrar was only continuing to give credibility to a process that had been started by the club itself.

The lawyer then turned to the clubs constitution. He argued that the same does not allow for extension of the term of office. The term ended on 31st December 2010. Elections were held and aborted. There needed to be an office to continue operators of the club. 

The Registrar had stepped in to save the cub from deregistration.

The Judicial Review is supposed to look at the decision of the Registrar and find out if
  • It was within the law
  • It was in the best interest of the club
  • It was not arrived at recklessly
It is not for the court to issue a directive on the modalities but to interrogate the actions of the club.

One has to ask himself, how come only two members of the club went to court?  They did not file a representative action. In fact, the former officials including Ochiel have not complained to the court. Is it only the interest of two people that can override the interest of all the other members.

If the judge upholds the application by the two members, the clubs fortunes may dip. The club will lack officials, the club will need to hold elections immediately and according to FIFA and FKL rules, elections cannot place in mid season. If the club fails to meet its KPL fixtures obligations, it will be relegated or even disbanded. That cannot be in the interest of the club, or in the interests of the Registrar or the interest of the Minister of Sports.

Following this submission, the Respondents lawyer also replied where he wished it to go on record that the Legal Opinion referenced was not by one individual but it was arrived at after wide consultations at the AG chambers. It is in the interest of the office of the AG not to embarrass the same office. He also indicated that he was willing to bring on board the Interested Party’s lawyer to the negotiations and consent that was being proposed.

In the Legal Opinion, the Ag has also looked at the provisions of FIFA and FKL.

Judge: Why don’t you share this Legal Opinion with the other parties?

AG: This is why we were seeking directions by the Judge first. This is a strange mater where the Respondents and the Interested Party are not dancing to the same tune. The AG is trying to bring the Applicants and the interested Party together for the interest of the club. The AG wouldn’t be happy to see the club relegated or in turmoil.

Following this, the Judge, without prejudice to any submissions that had been made, asked the parties to try and talk. This was a window of opportunity that was to be sealed by noon the following day.

He asked the AG to share his Opinion with the Interested Party and then try and get a settlement out of court that covered the three parties. If by noon the parties would not have reached a settlement, then the matter will proceed by the lawyer for the two Applicants continuing his submissions in Reply to the submissions of the Interested Party. The Judge will then make a ruling on this matter.

However, since the High Court is on Summer Vacation, the judge will not be sitting after 5th August 2011 until the end of the vacation in mid September and thus the parties were put on such notice.

The court rose at that point.

It will be interesting to see how this matter will end. We Ingwe Fans can only wait but we should also learn from this on how important it is to follow the constitution of the club and avoid putting the club at risk.

UPDATE: The parties were unable to agree and the judge granted them additional time to consult. The case shall be mentioned on 24th August 2011 and if the parties will not have a settlement, then the judge will give a date for the ruling.

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