Court of Appeal sets aside High Court ruling that ordered AK officials to vacate office

In a judgement delivered on Friday, judges Pauline Nyamweya, Aggrey Mchelule and George Odunga noted that the petitioners had not sought orders barring the executive committee members from being re-elected to the office.

“In the premises, we allow the appeal and set aside the orders directing the officials and Executive Committee of the appellant to forthwith vacate office and that they are ineligible to contest for any position in the organization,” the judges ruled.

In March last year, Tuwei, alongside the officials within his Executive were ordered to leave office after having extended their tenure at the helm of the organisation.

The judge had cited that they are ineligible to contest for any position in the organization.

The Appeal court agreed that it is true that in directing the officials to vacate the office the learned Judge found that they had been in the office for the cumulative period of eight years.

However, they said on May 10, 2017 the parties recorded a consent staying the conduct of the elections that commenced on April 27, 2017 until the hearing of the petition.

During the period of review of the appellant’s constitution, the law preserved the appellant’s existing status for the purposes of transition. 

“It cannot therefore be said that during the said period, a period when the said officials had to be in the office, courtesy of a legal provision, in order to effect the transition, the said officials could be said to have been in the office for the purposes of computing their tenure in the office.

“To do so would presume that the said officials and executive committee members ought to have vacated their offices with the result that there would have been no one in the office to carry out the transition,” the judges noted. 

In their view, that could not have been the intention of the drafters of the Sports Act, they added. 

“In any case, we agree that sections 46 and 49 of the Act which the learned Judge relied upon to remove the appellant’s officials from office did not provide for their removal. Accordingly, the learned Judge erred in relying on irrelevant legal provisions in granting the orders removing the appellant’s officials and executive committee members from the office,” they ruled.

The Athletics Kenya Commission had also noted that the officials shall be ineligible to contest for any position in the organisation going forward.

The case was filed by athlete Moses Tanui alongside nine other individuals who sought to have the officials declared illegally in office.

Additionally, the organisation’s officials were sued alongside the Cabinet Secretary, Ministry of Sports, Culture and Arts, Registrar of Sports, Registrar of Societies and the Attorney General.

Based on the petition, the athletes were seeking to have the officials be declared in office illegally, have all athletes as members of Athletics Kenya and declare the constitution of the organisation null and void.

The High Court judge ruled in their favour explaining that athletes should be included in the top decision-making organ of the organisation and also that the organisation review the constitution.