Gor Mahia FC v Sports Disputes Tribunal & another; Sydney Ochieng Wahongo (Interested Party)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Petition meets the threshold for constitutional petitions
- 2.Whether the Petition is properly before this Court
- 3.Whether the Petitioner is entitled to the reliefs sought
Key legal issues
#Whether the Petition met the Anarita Karimi Njeru precision threshold
It did not; the grievance was on behalf of the Court and no precise violation of the Petitioner's own rights was demonstrated
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.
Whether the Petition was properly before the Court given alternative statutory remedies
It was not; constitutional avoidance applied and judicial review under sections 7 and 9 of the Fair Administrative Actions Act was the proper route
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.
Whether the Sports Disputes Tribunal's decisions are challengeable by way of petition in the ELRC
The court was not persuaded that they are; the Tribunal is a judicial body clothed with jurisdiction over sports disputes
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.
Legal principles established
#- 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
#- 1.The Petition struck out with no orders as to costs (paragraph 39)
- 2.The Petition dismissed with costs to the 2nd Respondent and the Interested Party (paragraph 40)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
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
#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.
that the Petition is not properly before this Court and is hereby dismissed with costs to the 2nd Respondent and the Interested Party.
In the courts view the Petition does not meet the test of precision established in the Anarita Karimi Njeru case.
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.
The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis.
Issues in the judgment
#Conflicting final orders: struck out with no orders as to costs versus dismissed with costs
Judgment dated 28 September 2026 but COVID-19 delivery directions of March/April 2020 still invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.