The Court of Appeal has overturned the High Court’s directive ordering Athletics Kenya (AK) officials and its Executive Committee to vacate office, following a successful appeal by the federation.
In a ruling delivered yesterday, Justices Pauline Nyamweya, Aggrey Mchelule, and George Odunga found that the High Court’s decision, which had barred the executive committee members from holding office, was made without the petitioners requesting such orders.
As a result, the AK officials and Executive Committee members had not been given the opportunity to respond to the orders.
“In light of this, we allow the appeal and set aside the orders directing the officials and Executive Committee of the appellant to vacate office and declaring them ineligible to contest for any position in the organization,” the judges stated in their ruling.
The Court of Appeal also noted that although the High Court judge had determined that the officials had served for a cumulative period of eight years, a consent order recorded on May 10, 2017, had stayed the elections that began on April 27, 2017, until the petition was resolved.
This period, during which the appellant’s constitution was under review, preserved the status quo for the sake of transition.
“The officials were required to remain in office due to legal provisions facilitating the transition, and it cannot be said that this period should be counted toward their tenure,” the judges explained.
“To do so would imply that no one would have been in office to manage the transition, which was clearly not the intention of the Sports Act.”
The judges further noted that sections 46 and 49 of the Sports Act, which the High Court relied upon to remove AK’s officials, did not actually provide for their removal.
Consequently, the appeal court found the High Court’s reliance on these provisions to be a legal error.
The case, filed by athlete Moses Tanui and others who sought to have the officials declared illegally in office, has now been concluded, ending a legal battle that has lasted nearly nine years.
