[2025] KESDT 55 (KLR)

Bitonyake v Anti-Doping Agency of Kenya (Anti-Doping Case E027 of 2023) [2025] KESDT 55 (KLR) (Civ) (12 May 2025) (Decision)

Neutral citation: [2025] KESDT 55 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Civil

Anti-Doping Case E027 of 2023

J Njeri Onyango, Chair, E Kiplagat & Gabriel Ouko, Members

May 12, 2025

Between

Imeta Samuel Bitonyake

Applicant

and

Anti-Doping Agency of Kenya

Respondent

Decision

A. Parties. 1. The Applicant/Athlete is a male adult of presumed sound mind, a National Level Athlete, (hereinafter referred to as the Athlete).

2. The Respondent is the Anti-Doping Agency of Kenya (hereinafter referred to as ADAK), a state corporation established under section 5 of the Anti-Doping Act, No 5 of 2016.

Charge. 3. Presence of several prohibited SubstancesS1. 1 Anabolic Androgenic Steroids (AAS)/ 5αAdiol, Androsterone, Etiocholanolone, 5aandrostanediol, testosterone, Pregnanediol, 17β-diol and androstane

4. S1. 1 Anabolic Androgenic Steroids (AAS)/ 5αAdiol, Androsterone, Etiocholanolone, 5aandrostanediol, testosterone, Pregnanediol, 17β-diol and androstane are listed under S1 of WADA’s 2023 Prohibited List.

B. Background Facts. 5. On 25th February 2023, during the 2nd AK Fiel & Track Weekend Meet, an ADAK Doping Control Officer (“DCO”) collected a urine Sample from the Athlete. Assisted by the DCO, the Athlete split the Sample into two separate bottles, which were given reference numbers A 7125706 (the Sample”) and B 7125706 (the “B Sample”) in accordance with the Prescribed WADA

6. Both Samples were transported to the World Anti-Doping Agency (“WADA”) -accredited Laboratory in Qatar, Qatar Doping Control Laboratory (the “Laboratory”).

7. The Laboratory analyzed the A Sample in accordance with the procedures set out in WADA’s International Standard for Laboratories. The analysis of the A Sample returned an Adverse Analytical Finding (“AAF”) for presence of a prohibited substancesS1. 1 Anabolic Androgenic Steroids (AAS)/ 5αAdiol, Androsterone, Etiocholanolone, 5aandrostanediol, testosterone, Pregnanediol, 17β-diol and androstane

8. S1. 1 Anabolic Androgenic Steroids (AAS)/ 5αAdiol, Androsterone, Etiocholanolone, 5aandrostanediol, testosterone, Pregnanediol, 17β-diol and androstane are listed under S1 of WADA’s 2023 Prohibited List.

9. The findings were communicated to the athlete by Sarah I. Shibutse, the ADAK Chief Executive 11th May 2023. In the said communication the athlete was offered an opportunity to provide an explanation for the same by 1st June 2023

10. The same letter also informed the athlete of his right to request for the analysis of the B-sample; and other avenues for sanction reduction including Elimination of the Period of Ineligibility where there is No Fault or Negligence, Reduction of the Period of Ineligibility based on No Significant Fault or Negligence, Substantial Assistance in Discovering or Establishing Code Violations, Results Management Agreements and Case Resolution Agreements. The athlete was given until 22nd April 2024 to give a Response to the Charge.

11. The Athlete through his Counsel responded to the charges vide a letter dated 31st May 2023 and accepted the Charges. The Athlete admitted to having conducted a thorough investigation and believe that the Athlete’s Prohibited Substances found in his Urine sample may be attributed to his Consumption of an essential Amino Acids Supplement. He further admitted that it is Ultimately his responsibility to ensure that he is not taking any prohibited Substances.

12. Upon reading the Notice to Charge dated 5th June 2023 presented to the Tribunal on same date by Mr. Bildad Rogoncho on behalf of ADAK the Tribunal directed in the order dated 12th June 2023, as follows:i.The Applicant shall serve the Notice to Charge, the Notice of ADRV, the Doping Control Form, this direction No 1 and all relevant documents on the Athlete by 16th June 2023;ii.The panel constituted to hear this matter shall be:a.Ms. Elynah Sifuna -Shiveka – Panel Chairb.Mr. Allan Mola – Memberc.Mr. Peter Ochieng – Memberiii.The matter shall be mentioned on 22nd June 2023 to confirm compliance and for further directions at 2. 30pm via Microsoft Teams.

13. The matter came up for mention on 13th July 2023 when Mr. Mwakio holding brief for Mr. Rogoncho appeared for ADAK while Mr. Collins held brief for Mr. Majani for the Athlete. Counsel for the Athlete indicated that there was an ongoing out of court agreement with ADAK. He requested for a mention date in a month’s time for the feedback report. Mention was set for mention on 17th August 2023 for further directions.

14. At the mention on 24th August 2023 Mr. Rogoncho was in attendance for ADAKwhile Mr. Omondi Oketch held brief for Mr. Majani for the Athlete. Mr. Rogoncho stated that the negotiations between the parties failed and therefore he requested the matter proceed for hearing. Mr Oketch prayed that they be given a week to regularize their status in the matter. The Tribunal directed that the Athlete file their Notice of Appointment as well as their Response to the Charge on or before 7th September 2023. The matter was listed for mention on 7th September 2023.

15. During the mention on 7th September 2023, Mr. Rogoncho appeared for ADAK while Mr. Omondi Oketch held brief for Mr. Majani for the Athlete. The mention was to confirm filing of Response to the Charge Document and Notice of Appearance. Mr. Rogoncho added that the Applicant had proposed a settlement but the Athlete objected. On that premise Mr. Rogoncho sought a hearing date for the matter. The Tribunal directed the matter be listed for hearing on 28th September 2023 at 2. 30PM via Microsoft Teams.

16. At the hearing on 28th September 2023 Mr. Rogoncho represented ADAK while Mr. Majani appeared alongside Mr. Omondi for the Athlete. The Athlete’s Counsel presented one witness who was the Athlete himself who was cross examined by ADAK’s Counsel before a slightly tweaked Panel of Mr. Allan Owinyi, Mr. Peter Ochieng and Ms. Mary Kimani. The Athlete’s Counsel requested for an adjournment in order to bring in the second witness plus more witness statements and the Panel acquiesced to the request; a further hearing date was set for 19th October 2023.

17. When the matter came up for hearing on 19th October 2023 Mr. Rogoncho appeared for ADAK while Mr. Majani appeared for the Athlete. Mr. Rogoncho informed the Panel of the Tribunal that the Athlete testified on 27th September 2023 but the matter was stood over to today’s date. Mr. Majani informed the Panel that his client was unwilling to accept his advice adding that the client wanted to address the court himself and that therefore he was not able to proceed. The Athlete was allowed to address the Panel and stated that he had been handed a 3-year ban but he could not take the ban because he did not dope. Mr. Majani informed the court that the substance in question were anabolic androgenic substances;

18. On 26th September 2023, Mr. Rogoncho appeared for ADAK while Mr. Wambilianga held brief for Mr. Majani who was indisposed hence prayed for seven (7) days to be able to come back and proceed. Mr. Wambilianga added that the position remained the same between Mr. Majani and the Athlete. The matter was listed for mention on 2nd November 2023.

19. At the mention on 2nd November 2023 Mr. Rogoncho was in attendance for ADAK while Mr. Majani appeared for the Athlete. Mr. Majani informed the Tribunal that he wished to withdraw from the matter and allow the Athlete to get other legal representation as he was unable to adequately represent him. He further stated that he had informed his client (Athlete) the same. Mr. Rogoncho had no objection to this and further sought for a further mention date to allow the athlete to address the Panel personally. The Tribunal ordered that the matter be listed for mention on 9th November 2023.

20. During the mention on 9th November 2023 Mr. Mwakio appeared holding brief for Mr. Rogoncho for the Applicant. The Tribunal was informed that the Counsel on record for the Athlete was Mr. Majani who was not on the platform as he withdrew acting for the Athlete though the Applicant’s Counsel said he had not presented documents towards the same. The Athlete was also not present at the platform. Counsel for the Applicant confirmed that they were to notify the Athlete of today’s mention but could not trace him. He requested seven (7) more days to notify the Athlete to allow him (Athlete) to address the Panel personally. The Tribunal listed the matter for mention on 16th November 2023; the Applicant was to effect and serve the mention Notice upon the Athlete.

21. On 16th November 2023 Mr. Mwakio held brief for Mr. Rogoncho for the Applicant. There was no appearance for the Athlete. Mr. Mwakio informed the Tribunal that he (Mwakio) had severally asked the Athlete to appear but he was not willing to do so. Counsel for the Applicant asked for fourteen (14) days to put in his written submissions. The Tribunal directed that the Applicant had 14 days to file its submission and the matter was listed for further directions on 30th November 2023.

22. During the hearing on 28th September 2023 the Athlete testified under oath, and requested for his affidavit dated 31st August 2023 to be adopted, and was cross-examined. He admitted to using a supplement called EAA and amoxicillin in February 2023 due to illness, stating he was unaware it contained anabolic steroids. He stated that he had previously undergone anti-doping training and claimed to have bought the supplement from a nutritionist recommended by elite athletes. Counsel for ADAK argued that the Athlete tested positive for prohibited substances under ADAK Rules Article 2. 1 and supported this with charge documents. Despite discussions about resolving the case, the Athlete declined a resolution offer.

23. On 30th November 2023 Mr. Rogoncho appeared for the Applicant; there was no appearance for the Athlete. The purpose of this mention was for the Panel to give a judgment date; the Tribunal directed that the decision will be rendered on 21st December 2023.

24. It was ADAK’s Submissions, that the Respondent, a male athlete, was subject to the World Athletics (WA) Competition Rules, the World Anti-Doping Code (WADC), and the Anti-Doping Agency of Kenya (ADAK) Anti-Doping Rules. It was stated that on 25th February 2023, the A sample tested positive for several anabolic androgenic steroids, classified as prohibited substances under the WADA 2023 Prohibited List. Through counsel, he accepted the charges, attributing the presence of the banned substances to an essential amino acids supplement he had taken, though he admitted responsibility for what he ingested. ADAK concluded that an anti-doping rule violation had occurred and referred the matter to the Sports Disputes Tribunal. ADAK emphasized that ADAK had discharged its burden of proof under Article 3 of the ADAK Rules and WADC and highlighted several admissions by the Athlete, including purchasing and ingesting the supplement without verifying its ingredients. The Athlete’s explanation lacked supporting evidence, and he failed to meet the threshold of disproving intention or negligence. ADAK maintained that the Athlete bore strict liability for the prohibited substance in his system, and his failure to exercise utmost caution, as expected of an experienced national and international athlete, amounted to negligence. ADAK submitted that the Athlete had also been duly informed of all procedures and given an opportunity to present evidence, which he did not adequately do. ADAK had urged the Tribunal to find that an anti-doping rule violation had been committed.

25. Upon Considering the Parties rival Positions, The Tribunal Decided that the Athlete to serve a period of ineligibility of four (4) years from the date of Mandatory Provisional Suspension for a period of four (4) years starting 1st June 2023 to 1st June 2027. The Tribunal Disqualified any and/or all of the Athlete’s competitive results from 25th February 2023 The Tribunal also informed the Parties of their Right to Appeal.

26. The Athlete was Aggrieved by the Decision of the Tribunal and filed an Appeal through a Notice of Appeal against the entire ruling of Mr. Allan Owinyi, Mr. Peter Ochieng, and Ms. Mary Kimani, dated 21st December 2023 on the Groundsa.That the Honourable Tribunal erred in law and fact in committing substantive and procedural unfairness in failing to adhere to the principles of natural justice when they did not allow the Appellant to present their case fully hence causing an unfair hearing.b.That the Honourable Tribunal erred in law and fact by finding that the Respondents proved their case to the required standard which is on a balance of probability contrary to the required standard in all cases of doping which is to be greater than a mere balance of probability but less than the proof beyond a reasonable doubt.c.That the Honourable Tribunal erred in law and fact when they failed to establish that the Appellant was inadequately represented and as such, the inadequacy offended the principles of equality of arms when the counsel on record withdrew from representing the Appellant at a very critical stage of the suit.d.That the Honourable Tribunal arrived at a harsh conclusion of the case by sentencing the Appellant to a maximum ban of four years based on insufficient evidence as no sample B evidence was led before the Tribunal nor presented to it to corroborate the findings of the sample A test.e.That the Learned Tribunal Panel erred in law by failing to consider the Appellant's defences/ assertions in his Replying Affidavit as evidence when arriving at its decision.f.That the Learned Tribunal erred in law and fact by failing to consider the findings of subsequent tests done and samples collected from the Appellant herein.g.That the Learned Tribunal erred in law and fact by finding that the Appellant's use of the prohibited substance was intentional.h.That the Learned Tribunal erred in law and fact by failing to consider the provisions of the World Anti-Doping Code International Standard for Testing and Investigations, 2021 in arriving at its decision i.e. Failure to publish the test results on the WADA Portal contrary to Clause 4. 8.6. 4 of the World Anti-Doping Code International Standard for Testing and Investigations, 2021. i.That the Learned Tribunal erred in law and fact by failing to appreciate the intricate nature under which the cause of action arose and the subsequent questionable acts of the Respondent.j.That the Honourable Tribunal erred in law and in fact in relying on inadmissible and improbably evidence that was led before it which evidence was inadequate to warrant the excessive sanction that was meted upon the Appellant.k.That the Honourable Tribunal relied upon a doping test whose reliability was not tested and admissibility is in question as the said results were never adduced by their makers. The Appellant was not allowed to challenge the said evidence.l.That the Honourable Tribunal erred in law in imposing a disproportionate sanction which is not in tandem with the nature of the offence to a first-time accuscd person and the tribunal did not properly consider mitigating factors that could justify a lesser punishment.m.That the Honourable Tribunal erred in law and fact in meeting a punishment that is inconsistent with the prevailing precedent decisions on similar proceedings.

27. Upon reading the Notice to Appeal dated 29th January, 2024 and presented to the Tribunal by Juma Ouko, Advocate of J K Ouko & Company on behalf of the Appellant, the Tribunal hereby directs and orders as follows:i.The Applicant shall serve the Notice of Appeal, the Appeal Brief, these directions and all other relevant documents on the Respondent, by Wednesday 14th February, 2024;ii.The Appeal Panel constituted to hear this matter shall be:a.Hon. J Njeri Onyango FCIArb;b.Hon. E Gichuru Kiplagat;c.Hon. Gabriel Oukoiii.The matter shall be mentioned on Thursday, 15th February, 2024 at 2. 30 pm to confirm compliance and for further directions.

28. The Athlete through his Counsel also filed an Application for Stay of execution of Judgement made on the 21st December 2023. The said Application was dated 13th March 2024.

29. Upon Being served with the Notice of Appeal and the Application for stay, ADAK filed and served a Replying Affidavit stating that;I, Peninah Wahome, being a female adult of sound mind and of P.O Box 66458-00800 Nairobi, within the Republic of Kenya, do hereby make oath and state as follows:That I am the acting Director, Standards and Compliance, at the Anti-Doping Agency of Kenya (ADAK) [the Respondent herein] and well conversant with the facts of this case hence duly authorized and competent to swear this affidavit.That I have read and understood the contents of the Notice of Motion Application by the Athlete/Applicant and his Supporting Affidavit, both dated 13th March 2024, the true purport of which has been explained to me by my Advocate on record and thuswish to respond as follows:That I make this Affidavit on the basis of matters within my own knowledge and as regards matters of law, on the basis of advice from counsel on record, which advice I verily believe to be true.That I am advised by my Advocate on record which advice I find sound that, the instant Application is misadvised, misguided, and misinformed.That I am advised by my Advocate on record which advice I find sound that, the instant Application does not disclose all relevant information and facts as litigated in the primary suit whose Decision was delivered on Thursday, 21st December 2023. Filed on: - No Paid- - BY: ANTI-DOPING AGENCY OF KENYA - Reference: E3EDEBNK - KSHS 0. 00That I am informed by my advocate on record, which information I verily believe to be true that the instant Application and the prayers sought are alien in the Anti-Doping jurisprudence.That I am informed by my advocate on record, which information I verily believe to be true that Article 13 of the ADAK Anti-Doping Rules [ADR] does not envisage a situation where a Period of Ineligibility once rendered, may be stayed pending an Appeal.That I know of my own knowledge that the Applicant/Athlete’s urine sample was collected in-competition on 25th February 2023. (Annexed and marked PW1 is a copy of the Doping Control Form).That I know of my own knowledge that, the Applicant/Athlete’s sample returned a positive result for S1. 1 Anabolic Androgenic Steroids (AAS)/ 5αAdiol, Androsterone, Etiocholanolone, 5a-androstanediol, testosterone, Pregnanediol, 17β-diol and androstane. (Annexed and marked PW2 is a copy of the Test Report).That I am informed by my advocate on record, which information I verily believe to be true that the Applicant/Athlete was notified of the results via an Anti-Doping Rule Violation [ADRV] Notice dated Thursday, 11th May 2023. (Annexed and marked PW3 is a copy of the Anti-Doping Rule Violation Notice).That I am informed by my advocate on record, which information I verily believe to be true that the ADRV Notice was served via email on 11th May 2023. (Annexed andmarked PW4 is a copy of the email).That I am informed by my advocate on record, which information I verily believe to be true that the Applicant/Athlete responded to the email on the same date and confirmed receipt of the ADRV Notice. (Annexed and marked PW5 is a copy of theApplicant/Athlete’s email).That I am informed by my advocate on record, which information I verily believe to be true that having found the Applicant/Athlete’s response to the ADRV Notice to be unsatisfactory, the athlete was placed on a mandatory provisional suspension with effect from 1st June 2023. (See paragraph 4 of the ADRV Notice dated 11th May 2023)That I am informed by my advocate on record, which information I verily believe to be true that having found the Applicant/Athlete’s response to the ADRV Notice to be unsatisfactory, a Notice to Charge dated 5th June 2023 was lodged at the Sports Disputes Tribunal [SDT]. (Annexed and marked PW6 is a copy of the Notice to Charge).That I am informed by my advocate on record, which information I verily believe to be true that Directions dated 12th June 2023 in respect of the Applicant/Athlete’s case were issued by the SDT and the matter was fixed for further directions on Thursday,22nd June 2023. (Annexed and marked PW7 is a copy of the Directions).That I know of my own knowledge that, my counsel on record filed a Charge Document dated 19th June 2023 before the SDT. (Annexed and marked PW8 is a copy of the Charge Document).That I am informed by my advocate on record, which information I verily believe to be true that, the Applicant/Athlete requested for a pro bono counsel and the firm of Wambilianga Majani & Associates came on record for the Applicant/Athlete.That I am informed by my advocate on record, which information I verily believe to be true that, the firm of Wambilianga Majani & Associates engaged the Respondent [ADAK] with a view of entering into a Results Management Agreement [RMA] pursuant to Article 10. 8.1 of the ADAK ADR.That I am informed by my advocate on record, which information I verily believe tobe true that, my counsel on record engaged the World Anti-Doping Agency [WADA]and received concurrence to enter into an RMA in accordance with Article 10. 8.1 of the ADAK ADR.That I am informed by my advocate on record, which information I verily believe to be true that, the matter was mentioned severally, including but not limited to 22nd June 2023, 13th July 2023, and 17th August 2023 to allow the parties time to iron out the terms of the RMA.That I am informed by my advocate on record, which information I verily believe to be true that, the Applicant/Athlete was offered a one-year reduction to the otherwise applicable period of ineligibility as per the provisions of Article 10. 8.1 of the ADAK ADR but he declined the offer and opted to proceed with the matter despite guidance, counsel, and persuasion from his advocate on record.That I am informed by my advocate on record, which information I verily believe to be true that the matter proceeded, and the Applicant/Athlete testified on 28th September 2023. That I am informed by my advocate on record, which information I verily believe to be true that on 2nd November 2023, the Applicant/Athlete’s advocate ceased acting citing frustrations regarding the Applicant/Athlete’s refusal to accept the terms of the RMA despite not having a credible, solid, and tangible defence to the matter.That I am informed by my advocate on record, which information I verily believe to be true that despite being notified and being aware that he had a matter before the SDT, the Applicant/Athlete did not appear before the SDT on 9th November 2023 and 16th November 2023. That I am informed by my advocate on record, which information I verily believe to be true that the SDT directed for the parties to file their respective submissions and my advocate on record filed his submissions on 30th November 2023. (Annexed and marked PW9 is a copy of the Submissions dated 17th November 2023) to which a Decision was delivered on 21st December 2023. (Annexed and marked PW10 is a copy of the Decision dated 21st December 2023).That I am informed by my advocate on record, which information I verily believe tobe true that the Applicant/Athlete cannot cry foul since he was accorded all opportunities to present his case and went as far as to testify in his matter.That I am informed by my advocate on record, which information I verily believe to be true that the Applicant/Athlete has been treated fairly, was granted a pro-bono counsel, and was even invited to file his submissions which he failed to, having lost his advocate on record who ceased acting citing frustrations regarding his client’s refusal to take proper legal advice.That I am informed by my advocate on record, which information I verily believe to be true that the instant Application lacks merit ab initio since the same does not satisfy the principles outlined in the Stanley Kang’ethe Kinyanjui v Tony Ketter &5others [2013] eKLR (Civil Application No Nai. 31 of 2012) case, where the Court demanded that for an Application for Stay to be granted, the Applicant must demonstrate that there is an arguable appeal and that if the Application is not allowed then the entire appeal will be rendered nugatory.That I am informed by my advocate on record, which information I verily believe to be true that the orders sought are discretionary and in the exercise of this discretion, the Tribunal must be satisfied on the twin principles which are that the appeal is arguable and that if the orders sought are not granted and the appeal succeeds, the appeal will be rendered nugatory.That I am informed by my advocate on record, which information I verily believe to be true that in the instant case, the appeal cannot be rendered nugatory if the Appeal succeeds, since the Applicant/Athlete will return to competition with immediate effect.That I am informed by my advocate on record, which information I verily believe to be true that the Applicant/Athlete herein has failed to demonstrate that he has filed an arguable appeal and further he has not demonstrated that if the Application is not allowed then the appeal will be rendered nugatory.That I am informed by my advocate on record, which information I verily believe to be true that Article 13 of the ADAK ADR does not envisage the lifting of a period of ineligibility pending the hearing and determination of an appeal, more so where the panel in the first instance has found that the Athlete has committed an ADRV. For to do so would be to allow an unclean athlete to compete against clean athletes even if it will be in the interim.That I know of my own knowledge that, Article 13 of the ADAK ADR provides; “Decisions made under the Code or these Anti-Doping Rulesmay be appealed as set forth below in Articles 13. 2 through 13. 7 or asotherwise provided in these Anti-Doping Rules, the Code or theInternational Standards. Such decisions shall remain in effect whileunder appeal...”That I am informed by my advocate on record, which information I verily believe to be true that, the Applicant/Athlete was found guilty of an ADRV by the panel in the first instance and that he has not raised any fact, point of law or argument to controvert that finding or to remotely suggest that a different panel may arrive at a different outcome.That I know of my own knowledge that, ADAK has no objection to the matter being fast tracked and the appeal heard expeditiously so that a final Decision may be rendered to put both this matter and the Applicant/Athlete at rest.That I am informed by my advocate on record, which information I verily believe to be true that, ADRV cases do not require the furnishing of security as a substitute to a period of ineligibility and therefore the offer of a reasonable security is baseless, unfounded, and alien to ADRV proceedings.That I have been advised by my Advocate on record which advice I verily believe to be true that the said application is frivolous, vexatious and the same ought to be dismissed.That in view of the foregoing, the application before this Honourable Tribunal is incompetent, lacks merit, and ought to be struck out. The application should fail and the same be dismissed in any event.That I swear this Affidavit to oppose the Applicant/Athlete Application dated 13th March 2024 and save where herein otherwise stated, what is deponed to herein is true to the best of my knowledge, information, and belief, sources disclosed, and grounds set forth.

30. During the mention on the 17th April 2025, The Athlete’s Counsel informed the Tribunal that the Application for stay was Dismissed on 25th July 2024 for want of prosecution. Further that the appeal could be responded to by way of written submissions.

C. Appelant’s Submissions 31. The Appellant submitted that “The principles of proportionality under the international sporting dispensation has attained the position of notoriety. It has come to be generally accepted that where a federation or sporting association is implementing sanctions, then the sanctions must comply with the requirements of proportionality. This was clearly enumerated in the case of CAS 2005/A/847 Hans Knauss v FIS, award of 20th July 2005 where the court observed thus: - As a rule when determining the period of ineligibility, the Respondent must observe the principle of proportionality...”

32. Indeed, it has been long held in the opinion of the Swiss Federal Tribunal, that sports bodies can limit in their rules the circumstances to be taken into account when fixing sanctions and thereby also restrict the application of the doctrine of proportionality.

33. However, in the opinion of the Federal Tribunal, the sport associations exceed their autonomy if these rules constitute an attack on personal rights, the nature and scope of which is extremely serious and totally disproportionate to penalized behavior.

34. In our opinion, this threshold has been exceeded in the present case. The Appellant is a young person whose sports career is in jeopardy. A four-year period of in-eligibility due to the anti-doping violation accused of is too long a period, and a period that the athlete’s career will come to an end.

35. The trial panel failed to take into consideration his age, his personal sporting career or the particularities of the type of sport. This inflicts such an extraordinary disadvantage upon the Appellant, and we submit that this panel is justified in departing from the central premise of the WADC, namely the harmonization and standardization of doping sanctions across all types of sports and athletes, to reduce the said period. We propose a period of 18 Months will be a reasonable period, as was held in the Appeal of Paul Pogba, whose sanction was reduced from 4 years to 18 Months.

36. It would be a travesty for a young promising talent to go to waste, for a violation committed for a first offender, and for a trial that appeared a botched and riddled with inadequacies. Indeed, the emerging jurisprudence in this field has held that some factors need to be considered before handing the sanction to the accused athlete. These factors are the mitigating factors. Law cannot and ought not to be mechanically be applied, but all the surrounding factors ought to be considered before arriving at a determination.

37. In his replying affidavit of 31st August 2023, the Appellant informed the panel that the prohibited substance found its way into his body without his knowledge. This indicates that the ingestion of the said substance into his body was unintentional, a very vital factor which the Panel ought to have considered in computing his sanction. This factor was never considered, instead, the appellant was handed a 4-year ban, the maximum punishment available in sports law. (Refer to Paragraphs 5 -11 of the said Affidavit)

38. The principle of proportionality has been cited with approval in many sports law cases, including the Ferdinand Omanyala (2019) Case, the CAS 2005/C/976 & 986 FIFA & WADA, 21 April 2006, as well as the Paul Pogba Case in which cases the Tribunal has always granted the Appellants appeals. We submit that the trial panel did not take into account this doctrine in handing the Appellant a 4-year ineligibility period.

39. The applicant herein is a promising young athlete whose plans to be an internationally recognized athlete have been derailed by the four-year ban imposed on him following allegations of doping. It a well-established fact that athletes can only compete at the highest level while in their prime and as such robbing the appellant of four years of his prime would be unfair and unjust.

40. The Appellant avers that his ingestion of the banned substance was neither negligent nor deliberate. Therefore, the appellant in this case intends to show:a)That the ingestion of the banned substances was neither negligent not deliberate.b)That the Ruling and sentence of the trial tribunal was unfair, excessive and unjust.c)That the Ruling and sentence of the trial tribunal ought to be set aside and or be varied.

41. The Appellant’s submitted that the following issues fall for determination:

42. Article 2. 1 of the ADAK Anti-Doping Rules provides as follows:“Sufficient proof of an Anti-Doping rule violation under Article 2. 1 is established by any of the following: presence of a Prohibited Substance or its Metabolites or

43. Markers in the Athlete’s A Sample where the Athlete waives analysis of the B Sample and the B Sample is not analyzed; or, where the Athlete’s B Sample is analyzed and the analysis of the Athlete’s B Sample confirms the presence of the Prohibited Substance or its Metabolites or Markers found in the Athlete’s A Sample; or, where the Athlete’s A or B Sample is split into two (2) parts and the analysis of the confirmation part of the split Sample confirms the presence of the Prohibited Substance or its Metabolites or Markers found in the first part of the split Sample or the Athlete waives analysis of the confirmation part of the split Sample.”

44. It is an established rule that an athlete has the right to demand for the testing of a Sample B when the testing of Sample A results in an Adverse Analytical Finding. However, the Appellant’s counsel on record at the time of the hearing misadvised the Appellant to waive the said right in the hope that a plea bargain agreement would be arrived at. The Appellant submits that he personally did not wish to forfeit his right to demand for the testing of sample B and that in the circumstances the provision of Article 2. 1 of the ADAK ADR have not been satisfied and the evidence presented by the Respondent’s herein falls below the standard of proof prescribed in the Rules.

45. The maximum punishment provided for in Section 2. 1 of the ADAK ADR provides the punishment is a four-year suspension. It is trite that the ingestion of the banned substance ought to either be deliberate or negligent. This Section, however, places the burden of proving this on the shoulders of the athlete whose sample allegedly contained the banned substance.

46. Renown athlete and footballer Paul Pogba was similarly the recipient of a four-year ban after a testing of his samples resulted in an Adverse Analytical Finding. He appealed this ruling to the Court of Arbitration for Sports which appeal was premised on the ground that the ingestion of the banned substance was neither deliberate nor negligent. His ban was subsequently reduced from 4 years to 2 years.

47. The Appellant in this case stated during trial that he had not ingested any banned substances but had however procured Essential Amino Acids which were to help with his recovery and energy replenishment. So as to prove that his ingestion of the said substances was not deliberate the Appellant provided receipts for the purchase of the EAA and even procured a signed affidavit by the person who sold him the said EAA.

48. The Appellant stated that he had been using the said substance for months during which period other test had been conducted on him, all of which tested negative for any banned substances. The Appellant therefore maintains that he had no reason whatsoever to believe that there were prohibited substances contained in the EAA.

48. The Appellant also contends that he had inadequate representation at trial, which fact is evident from the said proceedings. It is flagrant that the Appellant had a falling out with his counsel which action prevented him from adequately presenting his case before this Honourable tribunal.

50. It is the Appellants submission that he has presented adequate evidence to show that the banned substance found in his sample did not result from his fault or negligence as he was rather diligent in finding a nutritionist who explained the uses and substances contained in the said EAA supplements.

51. It is the Appellant’s submission that the Respondents did not sufficiently prove their case at trial and that he was not allowed to fully present his case due to inadequacy of counsel. The Appellant maintains that if indeed there were trances of the banned substance in his system, the same was not because of negligence or fault on his part.

52. The Appellant therefore submits that the guilty verdict arrived at by the trial tribunal and the resulting four-year were both unfair and excessive and ought to be remedied by this Honorable tribunal.

53. We pray that this tribunal re-evaluated the proceedings of the trial tribunal, and finds that the 4-year maximum period is excessive, disproportionate and oppressive to the Appellant, and accordingly Substitutes the same with a maximum 18-month ineligibility period guided by the precedence herein above cited. We so pray.

D. Respondent’s Submissions 54. The Respondent Submitted that Appeals in anti-doping matters must satisfy strict thresholds under the World Anti-Doping Code (WADC) and the ADAK ADR. A successful appeal against a sanction requires the Appellant to demonstrate one or more of the following:i.That the Tribunal committed a material error in fact or law.ii.That the sanction imposed was evidently disproportionate.iii.That there exist compelling mitigating circumstances substantiated by credible evidence.

55. As established in CAS 2016/A/4534 WADA v Thomas Bellchambers, appeals are not avenues for relitigation of facts without new or compelling evidence. They are strictly limited to errors of law, procedural irregularities, or manifestly excessive sanctions.

56. The Appellant claims that ingestion of the prohibited substance was unintentional due to the use of an amino acid supplement. However, no laboratory analysis of the alleged supplement was provided, and mere affidavits or receipts are insufficient under the standards required.

57. In CAS 2012/A/2756 WADA v Daniel Plaza, the Panel emphasized that an athlete must provide concrete, credible, and scientifically verifiable evidence to support claims of unintentional ingestion.

58. The Respondent submits that the principle of proportionality is embedded within the WADC framework and is implemented through specific articles that account for intentionality, fault, and mitigating circumstances.

59. Proportionality does not, however, imply leniency in the absence of proven mitigation. In CAS 2005/A/847 Hans Knauss v FIS, the panel held that the standard four-year sanction must apply unless the athlete clearly establishes no significant fault or negligence, which has not been done in this case.

60. Consequently, ADAK respectfully prays that the Tribunal dismisses the appeal in its entirety and upholds the decision rendered by the trial panel. Upholding the integrity of sport and the global fight against doping demands consistency in enforcement and strict adherence to evidentiary standards.

E. Jurisdiction. 61. The Sports Disputes Tribunal has jurisdiction to hear and determine this matter in accordance with the following laws:a.Sports Act, No 25 of 2013 under section 58. b.Anti-Doping Act, No 5 of 2016 under section 31(a) and (b), (as amended from time to time).c.Anti-Doping Rules under Article 8. d.The Tribunal further exercises appellate jurisdiction over decisions made by sports organizations, federations, or other bodies under the applicable laws, regulations, or constitutions, where such decisions relate to sports disputes or anti-doping violations and are appealable to the Tribunal as the body of last resort within the national sports dispute resolution framework.

62. Consequently, the Tribunal assumes its jurisdiction from the above- mentioned provisions of law.

F. Applicable Rules. 63. Section 31 (2) of the Anti-Doping Act provides that: the tribunal shall be guided by the Anti-Doping Act, the Anti-Doping Regulations 2021, the Sports Act, the WADA Code 2021, and International Standards established under it, the UNESCO Convention Against Doping in Sports amongst other legal resources, when making its determination:

G. Issues To Be Determined 64a.Whether the Appellant was denied a fair hearing, including adequate legal representation and the opportunity to fully present their case, in violation of the principles of natural justice.b.Whether the Tribunal applied the correct standard and burden of proof, properly evaluated the admissibility and reliability of the evidence, and correctly determined whether the Anti-Doping Rule Violation (ADRV) was intentional.c.Whether the Tribunal erred in sanctioning the Athlete to a Four-years period of ineligibility and Whether the sanction imposed was lawful, proportionate, and consistent with precedent.

H. Merits a)Whether the Appellant was denied a fair hearing, including adequate legal representation and the opportunity to fully present their case, in violation of the principles of natural justice. 65. In David Oloo Onyango v Attorney General [1987] eKLR, the Court of Appeal affirmed that;“The right to a fair hearing includes the opportunity to know the case, one is expected to meet and to respond to it.”

66. In the present case, the Appellant was served with the Anti-Doping Rule Violation Notice and subsequently appeared before the Tribunal. He was also represented by pro bono counsel for a significant portion of the proceedings, during which he testified and engaged in discussions around a possible Results Management Agreement (RMA). The Athlete had been represented by Pro-Bono Counsel, who had been on record during multiple mentions and at the hearing.

67. At the hearing before the 1st instance Panel, the Pro-Bono Counsel had called the Athlete as the first witness and had successfully sought an adjournment to call additional witnesses and file further statements which the First Instance Panel had granted. At the second hearing, the Pro-Bono Counsel had informed the Tribunal that the Athlete was unwilling to accept his legal advice and wished to address the Tribunal directly. The Tribunal noted this development and proceeded accordingly, ensuring the Athlete was afforded the opportunity to be heard. Furthermore, the Appellant’s counsel withdrew only after the Appellant refused to accept legal advice, as noted in the record.

68. The Tribunal also issued directions for the filing of submissions and received submissions from ADAK. The Appellant, though invited to file submissions, failed to do so and the 1st instance Panel had proceeded to assess the merits of the case while referring to a filed Replying Affidavit Sworn by the Athlete dated 31st August 2023 and another Affidavit by James Mwrigi dated 23rd August 2023. This procedural conduct confirms that the Athlete was accorded fair representation, was actively involved in the proceedings, and had adequate opportunity to prepare and present his defense in accordance with the principles of natural justice, the ADAK Rules, and the Sports Disputes Tribunal procedural guidelines. A party’s deliberate refusal to cooperate with a Pro-Bono Counsel or to utilize the opportunities provided by the Tribunal cannot be construed as a denial of a fair hearing.

69. As held in Republic v Kenya Power & Lighting Company Ltd &anotherEx parte Abdulahi [2019] eKLR“Natural justice is not violated where a party fails to participate meaningfully despite being given the opportunity to do so.”

70. In Kenya Revenue Authority v Menginya Salim Murgani [2010] eKLR, the Court of Appeal stated that“The essence of a fair hearing is notice and opportunity to be heard, not that the party takes full advantage of that opportunity.”

71. It is the Panel’s View that the Appellant was not denied a fair hearing. The Tribunal provided adequate procedural safeguards, and any prejudice suffered arose from the Appellant’s own inaction or disregard of legal advice, not from any failure on the part of the Tribunal.

72. On the Allegation that the Pro-Bono Counsel for the Athlete had misadvised the Appellant to waive to have sample B tested, the Panel is of the view that, Under Article 7. 3 of the WADA Code and corresponding ADAK Anti-Doping Rules, the right to request B sample analysis belongs to the Athlete.in any event, the right to request B sample testing was an option available to the Appellant in the strict timelines available as per the Notice of ADRV, which period expired as at 1st June 2023, long before the Charge was preferred and Counsel coming on record. The failure ask for B sample testing does not invalidate the A sample result. It instead affirms that result.

73. The Panel is of the view that the Athlete cannot properly raise, for the first time on appeal, matters that were not brought before the First Instance Panel, such as the alleged suspicious conduct of ADAK during testing or investigation being fresh allegations cannot stand.

74. Appeals are generally limited to reviewing the findings and decisions made by the lower body based on the evidence and arguments that were presented at that stage. It is a well-established principle of procedural fairness and appellate practice that a party cannot withhold material allegations or objections during the primary hearing, only to raise them at the appellate stage in an attempt to reopen or reframe the dispute.

75. The record from the 1st Instance Panel demonstrates that the Tribunal adhered to the principles of natural justice by affording the Appellant multiple opportunities to be heard, to be represented, and to respond to the allegations.

b) Whether the Tribunal applied the correct standard and burden of proof, properly evaluated the admissibility and reliability of the evidence, and correctly determined whether the Anti-Doping Rule Violation (ADRV) was intentional. 77. Article 3. 1 of the World Anti-Doping Code (WADC) and Rule 3. 1 of the ADAK Anti-Doping Rules, provides that the standard of proof in anti-doping matters is“greater than a mere balance of probability but less than proof beyond a reasonable doubt.”

78. This standard was affirmed in the landmark decision of the Court of Arbitration for Sport (CAS) in CAS 2011/A/2384 & 2386 (WADA v FISA & Maxim Opalev), where it was held that‘The comfortable satisfaction of the adjudicating body is the proper standard in anti-doping cases.’

79. Regarding burden of proof in Anti- Doping Matters,‘Sufficient proof of an anti-doping rule violation under Article 2. 1 is established by any of the following:i.presence of a Prohibited Substance or its Metabolites or Markers in the Athlete’s A Sample where the Athlete waives analysis of the B Sample and the B Sample is not analyzed; or,ii.where the Athlete’s B Sample is analyzed and the analysis of the Athlete’s B Sample confirms the presence of the Prohibited Substance or its Metabolites or Markers found in the Athlete’s A Sample”

80. It is further provided at Article 3. 2 that facts relating to Anti-Doping rule violation may be established by any reliable means including admissions and the methods of establishing facts and sets out the presumptions

81. The Athlete’s voluntary and unequivocal admission serves as a non-analytical method of proof, which is recognized under both national and international anti-doping frameworks. This form of evidence is valid and enforceable, provided it is recorded and verified by the relevant authority. The Athlete had given several admissions, including purchasing and ingesting the supplement without verifying its ingredients.

82. Once ADAK established the presence of a prohibited substance under Article 2. 1 of the ADAK ADR, the burden lawfully shifted to the Appellant to provide a credible explanation to negate or reduce fault or establish lack of intent, as prescribed under Articles 10. 2 and 10. 5. The Appellant offered no credible scientific or medical evidence and declined a reduction under the Results Management Agreement (RMA) process.

83. The panel in CAS 2018/O/5675 IAAF v RUSAF & Ivan Yushkov, Para. 74. Stated that:‘Moreover, according to constant CAS jurisprudence, the mere protestation of an athlete that he or she never used a Prohibited Substance or a Prohibited Method is, by itself without sufficient weight to discharge the burden lying upon the athlete to prove lack of intent”

84. The issue of Sample B not being presented does not vitiate the process. Under WADA’s International Standard for Testing and Investigations, the athlete had the right to request analysis of Sample B, and failure to do so constitutes acceptance of the Sample A result.

85. This is supported by CAS 2007/A/1394 (WADA v AFA), where the panel held that“Refusal or failure to test Sample B amounts to a waiver of that right and does not undermine the reliability of the analytical finding.”

86. On the allegation that the 1st Instance Panel erred in law and fact by failing to consider the issue of lack of publication of test results on the WADA portal, which the Appellant claims ought to have led to a dismissal of the charge. This Panel is of the view that Under the World Anti-Doping Code and International Standard for Results Management (ISRM), the obligation to upload and manage doping control results on the ADAMS (Anti-Doping Administration and Management System) platform or the WADA portal rests with the Testing Authority or the Results Management Authority, in this case, ADAK. However, failure to post the test results does not affect the proof of the charge where the Laboratory Results are available to the Panel and are unchallenged. In any event the Appellant did not raise this issue in the first instance hearing and can therefore not raise or relay on it at the appellate stage. Furthermore, there is no indication that the Athlete was denied access to the test results, the laboratory documentation package, or any relevant evidence. The Athlete had legal representation and was given a full opportunity to respond to the evidence presented. The failure to upload the test results to the WADA portal did not affect the fairness or integrity of the proceedings.

87. As held in CAS 2006/A/1067 (ITF v Richard Gasquet),“The athlete bears the burden of establishing the source of the prohibited substance to any degree of fault, including to show that the violation was not intentional.” In this case, the Tribunal found that the Appellant failed to establish the source of the prohibited substance or to provide any plausible explanation, which is a factual determination that appellate panels should not interfere with lightly (see CAS 2010/A/2283).

88. Additionally, in Arbitration CAS 2017/A/4962 World Anti-Doping Agency (WADA) v Comitato Permanente Antidoping San Marino NADO (CPA) & Karim Gharbi, award of 3 August 2017 quoted by the Appellant, it was held that:“To establish the origin of the prohibited substance, it is nowhere near enough for an athlete to protest innocence and suggest that the substance must have entered his or her body inadvertently from some supplement, medicine or other product which he or she was taking at the relevant time. Rather, an athlete must adduce actual evidence to demonstrate that a particular product ingested by him or her contained the substance in question, as a preliminary to seeking to prove that it was unintentional, or without fault or negligence.”

89. The Court of Arbitration for Sport (CAS) has acknowledged that proving a lack of intent without identifying the source of the prohibited substance is exceedingly difficult. In the case of Abdelrahman (CAS 2017/A/5016 & 5036), the panel noted that“while it is theoretically possible for an athlete to establish a lack of intent without pinpointing the substance's origin, such instances are "extremely rare." The panel emphasized that without demonstrating how the substance entered the athlete's system, the burden of proving lack of intent becomes exceedingly high.”

90. Article 10. 6.1. 2 states that in order to receive the benefit of a reduction, the Athlete or other Person must establish not only that the detected Prohibited Substance came from a Contaminated Product, but must also separately establish No Significant Fault or Negligence. It should be further noted that Athletes are on notice that they take nutritional supplements at their own risk. The sanction reduction based on No Significant Fault or Negligence has rarely been applied in Contaminated Product cases unless the Athlete has exercised a high level of caution before taking the Contaminated Product.

91. While analyzing the text of the Athlete’s explanation, the attached copy of receipt and DCF, where he tried to explain that the source of the AAF was from the contamination of the Essential Amino Acids, the Panel is of the view that in cases where the Athlete or other Person can establish both No Significant Fault or Negligence and that the detected Prohibited Substance (other than a Substance of Abuse) came from a Contaminated Product, then the period of Ineligibility shall be, at a minimum, a reprimand and no period of Ineligibility, and at a maximum, two (2) years Ineligibility, depending on the Athlete or other Person’s degree of Fault.

92. The Athlete’s explanation/his suspected source of the prohibited substance inevitably required appropriate scientific lab verification to confirm any suspected contamination to counter the plausible micro-dose possibility. In this instance, the Appellants obligation is even higher considering that the AAF was in respect of several prohibited substances.

93. The Panel also relied on the Arbitration CAS 2006/A/1067 International Rugby Board (IRB) v Jason Keyter, award of 13 October 2006, where it was held that:“The Respondent has a stringent requirement to offer persuasive evidence of how such contamination occurred.”

94. Consequently, in determining whether there was intention to commit the violation, there are aspects to be reviewed:a.Whether he manifestly disregarded the risk;b.Whether the Athlete knew the action constituted an ADRV or knew there was significant risk of committing an ADRV

95. Further, relying on CAS 2016/A/4377 the Athlete submitted that“The Athlete bears the burden of establishing that the violation was not intentional within the above meaning (Article 10. 2.3), and it naturally follows that the athlete must also establish how the substance entered her body. The Athlete is required to prove the allegations on the “balance of probability”. This standard, long established in CAS jurisprudence, requires the Athlete to convince the Panel that the occurrence of the circumstances on which the Athlete relies is more probable than their non-occurrence.”

96. Article 10. 2.3 states that:“As used in Article 10. 2, the term intentional is meant to identify those Athletes or other Persons who engage in conduct which they knew constituted an Anti-Doping rule violation or knew that there was a significant risk that the conduct might constitute or result in an Anti-Doping rule violation and manifestly disregarded that risk. An Anti-Doping rule violation resulting from an Adverse Analytical Finding for a substance which is only prohibited in Competition shall be refutably presumed to be not "intentional" if the substance is a Specified Substance and the Athlete can establish that the Prohibited Substance was Used Out-of-Competition. An Anti-Doping rule violation resulting from an Adverse Analytical Finding for a substance which is only prohibited in Competition shall not be considered "intentional" if the substance is not a Specified Substance and the Athlete can establish that the Prohibited Substance was Used Out-of-Competition in a context unrelated to sport performance.”

97. Under Article 10. 2.3 of the ADAK ADR, intent may be inferred from the nature of the substance and surrounding circumstances. The Tribunal had before it laboratory evidence of an anabolic agent in the athlete’s sample and no credible explanation or challenge from the athlete

98. Unfortunately, apart from his own words and a screenshot of the MPESA receipt indicating transfer of money and confirmation of payment/purchase for the supplement to the vendor, a James Mwirigi, the Respondent did not supply any actual evidence of the specific circumstances in which the unintentional ingestion of Amino Acids occurred. The Respondent does not show the link between the Amino Acids Supplements and the AAF Found in his body. Concrete evidence should be adduced demonstrating that a particular supplement, medication or other product taken by the athlete, or that the specified product claimed to be taken, contained the substance in question.

99. The Panel, therefore, finds that the Respondent’s explanation was lacking in corroborating evidence and unsatisfactory, thereby failing the balance of probability test. Further that a finding of intentional use is not only reasonable but required to preserve the integrity of the anti-doping regime (see CAS 2013/A/3327, Marin Cilic v ITF).

100. Further, the Respondent as an Athlete has a duty to personally manage and make certain that any medication being administered is permitted under the Anti-Doping rules pursuant to Article 2. 1.1 of the Anti-Doping Rules.

101. The Panel finds that a player’s ignorance or naivety cannot be the basis upon which he or she is allowed to circumvent these very stringent and onerous doping provisions. There must be some clear and definitive standard of compliance to which all athletes are held accountable.

102. It was indicated in CAS 2008/A/1488 P v International Tennis Federation that:‘…a player’s ignorance or naivety cannot be the basis upon which he or she is allowed to circumvent the very stringent and onerous doping provisions. There must be some clear and definitive standard of compliance to which all athletes are held accountable.’

103. The Panel accepts the 1st Instance Panel determination that there existed no circumstances in this case that would warrant the elimination or the reduction of the period of ineligibility and upholds the Tribunal’s decision and reasons in awarding the sanction.

104. In the case of CAS 2012/A/2701 World Anti-Doping Agency (WADA) v International Waterski and Wakeboard Federation (IWWF) & Aaron Rathy, the panel made the following statement (par. 5. 5.16 and 5. 5.17):“Generally speaking, if an athlete ingests a product failing to inquire or ascertain whether the product contains a prohibited substance, such athlete’s conduct constitutes a significant fault or negligence, which excludes any reduction of the applicable period of ineligibility.’’

105. Did the athlete check the description of the medication or inquire from the doctor or pharmacist of the contents thereof? There is no evidence on record to indicate such attempts by the Athlete bearing in mind he has the burden to prove that the ingestion of the prohibited substance was not with his knowledge/ recklessness.

106. Being a National level Athlete, the Athlete is expected to be cognizant of the duty and standard of care imposed on him by the Anti-Doping Rules. Having stated so and from the evidence provided by the Athlete, we find that his conduct is not in line with the responsibilities of a diligent Athlete and cannot be considered as prudent actions.

C. Whether the Tribunal erred in sanctioning the Athlete to a Four-years period of ineligibility and Whether the sanction imposed was lawful, proportionate, and consistent with precedent. 107. The imposition of sanctions for Anti-Doping Rule Violations (ADRVs) is governed by Article 10 of the World Anti-Doping Code (WADC) and the corresponding provisions in the ADAK Anti-Doping Rules. Specifically, Article 10. 2.1 provides that:“The period of ineligibility shall be four years where the anti-doping rule violation does not involve a specified substance, unless the athlete can establish that the violation was not intentional.”

108. Where a violation does involve a specified substance, Article 10. 2.2 reduces the default period of ineligibility to two years, subject to a finding of intent. Importantly, intent is presumed unless rebutted by the athlete on a balance of probability.

109. From the foregoing, the period of ineligibility for the offence of Anti-Doping violation is Four (4) Years subject to reduction where the Athlete or any person can prove that the violation was not intentional/ no fault or negligence of the Athlete (the sanction is eliminated) or No significant fault or negligence of the Athlete (reduced to two years).

110. In the case at hand, the Athlete was found to have committed an ADRV based on laboratory results showing the presence of an anabolic agent, which is classified as non-specified substance under the WADA Prohibited List.

111. By the mere fact of the finding which was not contested by the Athlete, there was a legal presumption that the Athlete is responsible for the offence of Anti-Doping violation under Article 2. 1.2 of the Anti-Doping Rules and the burden thus shifted to the athlete to prove that there was no intent/significant fault/negligence or knowledge.

112. In CAS 2014/A/3820 (WADA v FINA & Cesar Cielo et al.), it was emphasized that:“panels must strictly apply the code unless compelling evidence justifies deviation.”

113. In the present case no such evidence was provided, and the Tribunal acted lawfully in imposing the four-year sanction.

114. Under international sports law, the principle of proportionality requires that a sanction must not be excessive in relation to the nature and gravity of the offense. The WADC itself reflects this principle by allowing reductions in cases of:a.No fault or negligence (Article 10. 5.1);b.No significant fault or negligence (Article 10. 5.2);c.Substantial assistance (Article 10. 7.1);d.Prompt admission (Article 10. 8.1); ande.Case resolution agreements (Article 10. 8.2).

115. In CAS 2011/A/2645 (Marin Cilic v ITF), the principle of proportionality was discussed in detail, where the panel emphasized the need for sanction levels to reflect both the degree of fault and the nature of the substance.

116. In this case, the athlete:a.Did not establish the source of the Several prohibited substances;b.Failed to provide supporting documentation or evidence;c.Declined to engage in a Results Management Agreement;d.Was found with non-Specified prohibited substances in his sample.

117. Given these aggravating circumstances, a four-year sanction was not disproportionate. On the contrary, it was consistent with CAS jurisprudence, which has repeatedly upheld maximum sanctions in cases of intentional use or failure to establish non-intent (e.g., CAS 2016/A/4377, IAAF v Tatyana Chernova).

I. Sanctions. 118. The WADC & ADAK ADR provides under Article 10. 2 Ineligibility for Presence, Use or Attempted Use or Possession of a Prohibited Substance or Prohibited Method; The period of Ineligibility for a violation of Article 2. 1, 2. 2 or 2. 6 shall be as follows, subject to potential elimination, reduction or suspension pursuant to Article 10. 5, 10. 6 or 10. 7: Article 10. 2.1 The period of Ineligibility, subject to Article 10. 2.4, shall be four (4) years where:Article 10. 2.1. 1 - The anti-doping rule violation does not involve a Specified Substance or a Specified Method, unless the Athlete or other Person can establish that the anti-doping rule violation was not intentional.

119. Further Article 10. 7 provides:Elimination, Reduction, or Suspension of Period of Ineligibility or Other Consequences for Reasons Other than Fault Suffice it to state here that the Athlete did not meet any of the provisions essential for mitigating the recommended sanction.

120. Further Code Article 10. 10 provides: Article 10. 10 Disqualification of Results in Competitions Subsequent to Sample Collection or Commission of an Anti-Doping Rule Violation;In addition to the automatic Disqualification of the results in the Competition which produced the positive Sample under Article 9, all other competitive results of the Athlete obtained from the date a positive Sample was collected (whether In-Competition or Out-of-Competition), or other anti-doping rule violation occurred, through the commencement of any Provisional Suspension or Ineligibility period, shall, unless fairness requires otherwise, be Disqualified with all of the resulting Consequences including forfeiture of any medals, points and prizes.

121. WADC’s Article 10. 13. 2 provides that credit may be awarded for a provisional period of suspension served by the Athlete as against the period of ineligibility they are sanctioned for.

122. The Panel makes the following specific findings in regard to this matter: -a) It was not controverted by the Applicant that the Athlete had respected his mandatory provisional suspension throughout these proceedings;b)The DCF indicates the Athlete was 25 years old.

J. Decision. 123. Consequent to the discussion on merits of this case, the Tribunal finds:a.The applicable period of ineligibility of four (4) years is hereby upheld;b.The credit for Mandatory provisional suspension served since 1st June 2023 to 1st June 2027 is upheld;c.The Disqualification of any and/or all of the Athlete’s competitive results from 25th February 2023 is upheld;d.Each party shall bear its own costs;e.The right of appeal is provided for under Article 13 of the ADAK ADR and the Code.

DATED AT NAIROBI THIS 12TH DAY OF MAY 2025MRS. NJERI ONYANGO, FCIARBPANEL CHAIRMR. EDMOND KIPLAGATMEMBERMR. GABRIEL OUKOMEMBER