[2021] KESDT 118 (KLR)

REPUBLIC OF KENYA

OFFICE OF THE SPORTS DISPUTES TRIBUNAL

SDT NO. E002 OF 2021

THE JUDDICIARY

LINUS GERALD MARANGU........................................................APPLICANT

VERSUS

MAJOR RTD SULEIMAN SUMBA.....................................1ST RESPONDENT

GEORGE WASONGA...........................................................2ND RESPONDENT

KENYA TAEKWONDO FEDERATION............................3RD RESPONDENT

NATIONAL OLYMPIC COMMITTEE OF KENYA........4TH RESPONDENT

DECISION

PANEL

1. Mr. John M Ohaga, SC, CArb - Chairman

2. Mrs. Elynah Sifuna-Shiveka –Deputy Chairperson

3. Mrs. J Njeri Onyango, FCIArb - Member

APPEARANCES:

Mr. Munoko instructed by S M Munoko & Company, for the Applicant

Ms. Asasha holding brief for Mr. Wasonga instructed by Wasongo B O & Company for the 1st, 2nd and 3rd Respondents.

Mr. Arusei together with Ms. Julia Kiget instructed by Arusei & Company for the 4th Respondent

A.PARTIES

1. The Applicant is an adult of sound mind and describes himself as the National Coach of the Kenya Taekwondo 2020 Olympics Team.

2. The 1st and 2nd Respondents are officials of the Kenya Taekwondo Federation, the 3rd Respondent herein. The 1st Respondent being the President, while the 2nd Respondent is the Secretary General.

3. The 3rd Respondent is the duly registered National Sports Federation responsible for the management and development of the sport of Taekwondo, which is an Olympic Sport.

4. The 4th Respondent is the umbrella sports body responsible for the organization and management of Olympic sports. It is responsible for the entry of both the athlete and athlete support personnel into Olympic competitions. It is affiliated to the International Olympic Committee.

B. BACKGROUND

5. The Applicant herein, approached this Honourable Tribunal by way of Notice of Motion under a certificate of urgency on 25th June 2021 seeking inter alia that he be granted access to the training camp and a stay of the decision by the 1st, 2nd and 3rd Respondent seeking to suspend him as the national coach for the Olympic Taekwondo Team.

6. Upon consideration of the parties’ submissions, the Tribunal pronounced itself on the matter by way of a ruling dated 9th July 2021 wherein the Tribunal issued the following orders:

i. THATall letters emanating from the 1st, 2nd and 3rd Respondents or any other official of the 3rdRespondent cancelling the appointment of the Applicant to the Taekwondo Tokyo 2020 Olympic Team are null and void and are hereby quashed.

ii. THATthe 1st, 2nd, 3rd and 4th Respondents and their servants, agents, or anyone claiming under them are hereby restrained frominterfering, blocking access, or denying the Applicant from discharging his duties as the Coach of the Olympic team;Olympics team granting him all benefits attendant thereto including kitting, travel arrangements, visa and accreditation;

iv. THATthe costs of these proceedings shall be borne by the 1st, 2ndand 3rd Respondents.

7. The Applicant invited this Tribunal to find that the Respondents were in contempt of the orders issued on 9thJuly 2021 by way of a Notice of Motion dated 26th July 2021 (hereinafter “the Application”) seeking the following orders:

i. THATthis Honourable Tribunal be pleased to find that the 1stand 2nd Respondents being officials of the 3rd Respondent and the President and Secretary General (Ag) of the 4th Respondent herein are in contempt of Tribunal orders issued on 9thJuly 2021.

ii. THATupon grant of prayer (1) above, the contemnors show causewhy they should not be committed to civil jail for such terms as this Honourable Tribunal may deem fit for disobeying and/or non- compliance of the Tribunal Orders issued on 9thJuly 2021.

8. The Application forms the substratum of the respective parties’ submissions and the Tribunal’s decision.

C. PLEADINGS

9. The 1st to3rd Respondents filed their Replying Affidavit dated 23rd August 2021 refuting the allegations of contempt by the Applicant and stating that they complied with the Tribunal’s directions by allowing the Applicant access to the training camp and averred that they have not in any way interfered with the appointment of the Applicant as coach.

10. It was the 1st to 3rd Respondents’ position that facilitating the travel of the Applicant to Tokyo for the Olympics was not within its mandate, but rather it was the responsibility of the 4th Respondent herein. Additionally, that the responsibility of listing coaches was also upon the 4th Respondent.

11. The 4thRespondent filed its Replying Affidavit on 26thAugust 2021 wherein it stated that the application for contempt was made in bad faith as it was the Applicant who frustrated the implementation of the Tribunal’s orders in its favour and that the 4th Respondent complied with the orders of the Tribunal to the best of its ability.

12. The 4th Respondent highlighted that it re-instated the Applicant as the Tokyo 2020 Taekwondo coach. However, the Applicant did not have a World Taekwondo Level II international coaching certificate in compliance with the World Taekwondo regulations and this hindered the Applicant’s eligibility to travel and coach in the Olympics.

13. It was the 4thRespondent’s submission that it wrote to the Applicant on 13th July 2021 requesting the Applicant to supply it with documentation evidencing his qualification, in this case the Level II certificate, but the Applicant failed to respond to the same.

14. The Applicant filed its Further Affidavit on 8thSeptember 2021 indicating to the Tribunal that the issues raised in the 4th Respondent’s reply were extensively canvassed at the hearing before the Tribunal gave its orders and that the Respondents, after the issuance of the Tribunal’s orders, commenced underground dealings to justify their disobedience.

15. The 4thRespondent filed its Replying Affidavit dated 27th September 2021. However, on 12th October 2021, the 4th Respondents sought to have its application dated 23rd September 2021 seeking the review of the Tribunal’s orders of 9th July 2021 deemed to be its response to the Applicant’s application for contempt dated 26thJuly 2021.

16. The application for review was primarily premised on the fact that the Tribunal had not been informed by the Applicant that he had not attended any of the certification trainings that were mandatory for qualification as a coach at the Tokyo 2020 Olympic games. Put differently, the Applicant hadnot been accredited by the World Taekwondo Africa to participate as a coach at the Tokyo 2020 Olympic games.

17. The 4th Respondent emphasized that it complied with the orders of the Tribunal issued on 9thJuly 2021 to the greatest extent possible and it should not be held in contempt for the failure by the Applicant to ensure it complied with the qualification requirements, a matter that was beyond the authority and control of the 4th Respondent.

18. The Applicant filed a further-further affidavit on 26thOctober 2021 wherein he adduced evidence to the effect that the coach, Mr. Eliakim Ogenga, who was facilitated to travel to Tokyo by the Respondents for the Kenya Taekwondo Team for Tokyo Olympic Games 2020 only obtained the Level I certificate between 20th-21st July, 2021 while already in Tokyo, Japan. Therefore, he did not have a Level II Certificate.

19. The 4th Respondent filed its further Replying Affidavit on 26th October 2021 wherein it highlighted several issues:

i. It relied on the technical advice of international, continental and national federations on technical issues of sports;

It relied on the sports federations to select their technical officials for the Tokyo 2020 Olympic games, provide a criterion as well as roles

ii. and responsibilities for selection of technical officials during the games;

iii. The Applicants federation, the 3rd Respondent herein, and the World

Taekwondo Africa raised issues on the requirement of the Applicant to have in place the Level II certificate and as a result, at its level it had nothing to do with the same as this was an internal matter that ought to be resolved by the Applicant and the 3rd Respondent;

iv. The President and the Secretary General have no administrative responsibility over the day-to-day management of the OlympicGames and therefore cannot be said to have connived or neglected the commission or omission of any acts contrary to the Tribunal’s orders.

20. The 1st to 3rd Respondents filed their further Replying Affidavit on 1st November 2021 where they averred inter alia:

i. It is the duty of the 3rd Respondent to appoint coaches as per the qualifications in its Constitution. However, it is the duty of the appointed coach to ensure that he meets any subsequent qualification requirements in accordance with the international regulations;

ii. It was the responsibility of the Applicant to register for the course, pay for them and attend in order to get the aforesaid certifications to enable him coach at the Tokyo Olympic games;

The 3rd Respondent usually forwards a long list of coaches who have

iii. met the national qualifications to the 4thRespondent which has names of several people who have qualified so that if the appointed coach fails to attend the games for whatever reason, the 4th Respondent has an option of another person.

iv. In the said list forwarded to the 4th Respondent, both the Applicant and Mr. Eliakim Ogenga’s names were indicated.

v. The Applicant did not show any proof that he had registered or paid for any of the certification courses. However, Mr. Eliakim Ogenga, registered and paid for both Level I and Level II certificate before he travelled to Tokyo for the Olympics.

vi. Upon registering and paying for the courses, Mr. Eliakim Ogengareceived confirmation from the World Taekwondo that he had enrolled for the course which was being administered on the 20th-21st July 2021 before the athlete could compete on the 27thJuly 2021.

21. The Parties, in accordance with the directions of the Tribunal filed their written submissions ahead of the hearing as follows:

i. ii. The Applicant filed his written submissions on 27th October 2021;

The 1st to 3rd Respondents filed their written submissions on 27th October 2021.

iii. The 4thRespondents filed their written submissions on 2ndNovember 2021.

22. The matter came up for hearing on the 2ndNovember 2021, when the parties highlighted their respective submissions as hereunder:

D. APPLICANT’S CASE

23. It was the Applicants contention that the Respondents acted in contempt of the Tribunal’s orders issued on 9thJuly 2021.

24. The Applicant cited the South African case ofFakie No- Vs- CC11 systems (pty) Ltd (653/04) (2006) ZASCA 52;2606(4) SA 326 (SCA) (31) where the court highlighted the essential elements of what a party alleging contempt needs to demonstrate:

a) The order has been granted;

b) The alleged contemnor was served or had knowledge of it;

c) The alleged contemnor failed to comply with the orders;

d) The non-compliance was wilful and mala fides, unless the non-complier established the contrary

25. The Applicant further relied on the case ofSamuel M. N. Mweru & Others v National Land Commission & 2 others[2020] eKLR at paragraph 40 and 41 where Hon. Justice J Mativo observed in part as follows:

“40. Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book Contempt in Modern New Zealand who succinctly stated:-

"There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that:-

(a) the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;

(b) the defendant had knowledge of or proper notice of the terms of the order;

(c) the defendant has acted in breach of the terms of the order; and (d) the defendant's conduct was deliberate.

41. It is the last test in paragraph (d) above that warrants detailed consideration.”

26. The Applicant averred that it is uncontroverted that an order was indeed issued against the Respondents and the same was served on them.

27. The Applicant further submitted that the Respondents deliberately disobeyed the Tribunal’s orders by failing to grant him access to the Taekwondo team, fully making provision for the Applicant as a member of the Kenya Taekwondo 2020 Olympics and granting him all the benefits attendant thereto including kitting, travel arrangements, visa and accreditation.

28. The Applicant averred that upon issuance of the Orders on 9thJuly 2021 and Judgment on 12thJuly, 2021, the 1st, 2nd and 3rd Respondents dragged in the 4th Respondent and then undertook a coordinated conspiracy to block the Applicant completely by introducing unwarranted conditions contrary to the orders of the Tribunal, and the 4th Respondent became a faithful accomplice.

29. It was pointed out by the Applicant that the reason fronted by the Respondents for failure to adhere to the orders issued by the Tribunal was the requirement by the World Taekwondo Regulations on the Administration of World Taekwondo International Coaches (hereinafter “the Regulations”) for coaches participating in World Taekwondo promoted competitions to hold a valid Level II International Coach certificate.

30. It was the Applicant’s evidence that despite the Tribunal’s directions, on 13th July 2021, the 2nd Respondent wrote a letter to the 4th Respondent not to allow the Applicant to travel as the Taekwondo Coach at the Tokyo Olympics for lack of a Level II coaching certificate. The Applicant pointed out that this was an issue that had been deliberated upon and concluded during the hearing and re-introducing it was well calculated to achieve the intended outcome which was to hinder the Applicant from traveling to Japan.

31. The Respondents then opted to facilitate the travel of Mr. Eliakim Ogenga who had neither the Level I Training Certificate nor the Level II TrainingCertificate which was contrary to the Tribunal’s orders as his letter ofappointment dated 22ndJune 2021 had been quashed by the Tribunal.

32. The Applicant emphasized the fact that Mr. Eliakim Ogenga trained for the Level I certification on 20th and 21stJuly 2021 while already in Japan.

33. In view of the above conflict with the Tribunal’s orders and Regulations, it was the Applicant’s considered view that the Respondents had the option to appeal or seek review of the Tribunal’s directions. They, however, chose to disobey the Tribunal’s directions and cited the Regulations as grounds for non-compliance.

34. It was the Applicant’s submission that it is trite law that when there exists Court or Tribunal orders, whether correctly or incorrectly granted, they have to be obeyed unless and until they are properly set aside.

35. The Applicants further submitted that the Respondents deliberately lied and misled the Tribunal that they cleared and facilitated a person who had Level II Certificate as coach for the Tokyo Olympic Games 2020 when they knew that the said coach, Mr. Eliakim Ogenga, sat for Level I Certificate course while in Japan between 20th and 21st July 2021. Further, that the Respondents have failed to adduce evidence that Mr. Eliakim Ogenga had the requisite Level II certificate before he left for Tokyo, Japan.

36. To this end, the Applicant averred that it had proved its case to the requisite standard, that is beyond a balance of probability.

37. With regard to the remedy for disobedience of the Tribunal’s orders, the Applicant relied on the case of Woburn Estate Limited v Margaret Bashforth[2016] eKLR where the Court of Appeal stated that:

“We reiterate that contempt proceedings being of quasi –criminal in nature and since a person may lose his right to liberty, each stage and step of the procedure must be scrupulously followed and observed. We bear in mind the often-cited passage attributed to Lord Denning In Re Bramblevale Ltd [1970] 1 CH 128 at page 137 that;

“ A contempt of court is an offence of criminal character. A man may be sent to prison for it. It must be satisfactorily proved showing thatwhenthemanwasaskedaboutit,hetoldlies.Theremustbesomefurtherevidencetoincriminatehim.” “

38. The Applicant highlighted the powers of the Court (or Tribunal) to protect the dignity of the rule of law and quoted fromSamuel M. N. Mweru case (supra)where Hon. Justice J Mativo stated:

“ It is for this purpose that courts are entrusted with the extraordinary power of punishing those who indulge in acts whether inside or outside courts which tend to undermine their authority and bring them in disrepute and disrespect by scandalizing them and obstructing them from discharging their duties. When the court exercises this power, it does so to uphold the majesty of the law and of the administration ofju stice. The foundation ofj udiciary is the trust and confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working the edifice of the judicial system gets eroded. It is for this purpose that courts are entrusted with the extraordinary power of punishing those who indulge in acts whether inside or outside courts which tend to undermine their authority and bring them in disrepute and disrespect by scandalizing them and obstructing them from discharging their duties. When the court exercises this power, it does so to uphold the majesty of the law and of the administration of justice. The foundation of judiciary is the trust and confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working the edifice of the judicial system gets eroded.”

39. The Applicant’s averred that the Respondents in accordance with Section 64 of the Sports Act, 2013 qualify for both a fine of Kenya Shillings 500,000. 00 and a maximum custodial sentence of three (3) years.

E. 1ST, 2ND AND 3RD RESPONDENT’S CASE

40. It was the 1st, 2nd and 3rd Respondent’s submission that to commit a person for contempt of court, the court must be satisfied that the person has wilfully and deliberately disobeyed a court order that he was aware of.

i)Theorderallegedtohavebeenbreached“muststateclearlyandunequivocallywhatshouldandshouldnotbedone.”Thisensuresthatapartywillnotbefoundincontemptwhereanorderisunclear.Anordermaybefoundtobeunclearif,forexample,itismissinganessentialdetailaboutwhere,whenortowhomitapplies;ifitincorporatesoverlybroadlanguage;orifexternalcircumstanceshaveobscureditsmeaning.

41. In support of the above, the 1st, 2nd and 3rd Respondents were guided by the case of Salome Munubi & 3 others v Muhammad Swazuri & 2 others; Emmanuel Busera (Interested Party); Kabale Tache Arero (Contemnor) [2019] eKLR where the Court cited with approval the Court of Appeal case ofMutitika v. Baharini Farm Limited [1985] KLR 229, 234 where it was held as follows:

“In our view, the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt...The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to an offence which can be said to be quasi-criminal in nature.”

The rationale for this standard is that if cited for contempt, and the prayer sought is for committal to jail, the liberty of the contemnor will be affected. As such, the standard of proof is higher than the standard in civil cases. This power, to commit a person to jail, must be exercised with utmost care, and exercised only as a last resort. It is of utmost importance, therefore, for the respondents to establish that the alleged contemnor’s conduct was deliberate, in the sense that he or she wilfully acted in a manner that flouted the Court Order.

42. The 1st, 2nd and 3rd Respondents argued that the Applicant has failed to establish that they deliberately and willingly disobeyed the Tribunal’s orders. They relied on the case of Sheila Cassatt Issenberg & another v Antony Machatha Kinyanjui [2021] eKLR where the court quoted with approval the case of Carey v Laiken, 2015 SCC 17 which expounded on the three elements of civil contempt of court which must be established to the satisfaction of the court:

ii) The party alleged to have breached the order must have had actual knowledge of it. It may be possible to infer knowledge in the circumstances,oranallegedcontemnormayattractliabilityonthebasisofthewillfulblindnessdoctrine.

iii) The party alleged to be in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels. (emphasis)

43. The 1st, 2nd and 3rd Respondents submitted that, in compliance with the Tribunal’s orders of 9th July 2021, they have never interfered or raised any issues on the Applicant’s appointment as the coach and the Applicant has always had access to the training camp.

44. It was highlighted that it was not within the 1st, 2nd and 3rd Respondent’s mandate to facilitate the Applicant’s travel to Tokyo and as such, the fact that the Applicant did not travel cannot be attributed to the 1st, 2nd and 3rd Respondents.

45. The 1st, 2ndand 3rdRespondents contend that the Applicant did not travel to the Tokyo Olympics because he lacked the proper qualifications required under Regulation 11 of the World Taekwondo Regulations on the Administration of World Taekwondo International Coaches.

46. Further, it was the Applicant’s responsibility to attend the training in order to get the said certification which the Applicant failed to do. Therefore, it was the Applicant who frustrated the 4th Respondent’s compliance with the Tribunal’s orders by failing to get a Level II training certificate which was a mandatory requirement.

47. It was the 1st, 2nd and 3rd Respondent’s submission that the President of the 4th Respondent on 23rd May 2021 informed all coaches, the Applicant included, of the communication from the Vice President of the World Taekwondo that coaches without a Level II Certificate would not be allowed to coach in the 2020 Tokyo Olympic Games.

48. Further, it was highlighted that the Applicant did not show any proof that he had registered or paid for any of the certification courses. However, Mr. Eliakim Ogenga, registered and paid for both Level I and Level II certificate before he travelled to Tokyo for the Olympics.

49. However, it is worth mentioning at this juncture that on further probing by the Tribunal during the hearing, it was admitted by the 1st, 2nd and 3rd Respondents that Mr. Eliakim Ogenga had not met the requisite qualification before leaving for the Olympics in Tokyo.

50. The 1st, 2ndand 3rdRespondents averred that the Applicant has not provided sufficient evidence to show that they disobeyed the Tribunal’s orders and subsequently they have not discharged the legal burden of proof which is beyond a balance of probabilities.

51. In view of the foregoing the Application should not be allowed as the power to punish for contempt should be used sparingly, cautiously and with great restraint. It is an enforcement power of last resort rather than first resort.

52. The 1st, 2nd and 3rd Respondent quoted the case of Sheila Cassat (supra) where the Court held that:

“But even as courts punish for contempt to safeguard the peaceful and development of society and the rule of law, it must be borne in mind that the power to punish for contempt is a discretionary one and should be used sparingly. That is why the court observed in Carey v Laiken (supra), that if courts were to find contempt too easily, “a court’s outrage might be treated as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks to protect. The court’s contempt power should be used cautiously and with great restraint. It is an enforcement power of last resort rather than first resort.”

F. THE 4TH RESPONDENT’S CASE

53. It was the 4th Respondent’s submission that on 12th July 2021, it communicated with the Applicant informing him of his re-instatement as a Tokyo 2020 coach in compliance with the Tribunal’s orders.

54. However, on 13th July, 2021 it received a letter from the 3rd Respondent indicating that the Applicant lacked the requisite qualification to coach in the Tokyo 2020 Olympics, in this case, the Level II certification.

55. The 4th Respondent averred that despite requesting for the necessary documentation from the Applicant, its request went unanswered.

56. It was further stated that on matters relating to travel several other government bodies, that is the central management and the steering committee are involved.

57. The 4thRespondent highlighted that it does not run the day-to-day activities of the federations. Sports federations are the technical experts who offer their advice and guidance to the 4th Respondent in their respective disciplines as guided by their International Federations. As such the 4th Respondent relies heavily on the technical advice of international, continental and national federations on technical issues of sports.

58. Consequently, during the Tokyo 2020 Olympic Games, the 4th Respondent relied on the sports federations to:

a) Select their technical officials for the Tokyo 2020 Olympic Games as guided by the International Federation Guidelines

b) Provide a criterion, roles and responsibilities for selection of technical officials during the games.

59. The 4thRespondent submitted that it is trite law that he who comes to equity must do equity, therefore, a person cannot derive an advantage from his own wrongdoing. Subsequently, the directive from World Taekwondo Africa was that coaches had to have a Level II certificate which the Applicant did not have.

60. In support of the above position, the 4th Respondent relied on the case ofIn re Estate of Jared Kimithi Gathiaka (Deceased) [2020] eKLR where the Court held as follows:

“As succinctly stated by Kuloba, J (as he then was) in Gabriel Mbui v Mukindia Maranya [1993] e KLR:

“No one can improve his condition by his own wrong. The latin of it is Nemo ex suo delicto meliorem suam conditionem facere potest…it is an ancient dictum of our law, that a person alleging his own infamy is not to be heard. People whose wisdom I cannot profane by making modern comparisons to them abbreviated their wisdom in the saying, Allegans suam turpitudinem non est audiendus…. By which they meant that no one shall be heard in acourtofjusticetoallegehisownturpitudeasafoundationofarightorclaim.Nooneshallbeallowedtosetupaclaimbasedonhisownwrongdoing.Apersoncannottakeadvantageofhisownwrongandinequity,themaximholdsgoodthathewhocomesintoequitymustcomewithcleanhands…Nullprendraadvantagedesontortdemesne…meaningnomanshallprofitbythewrongthathedoes,andNulluscommodumcaperepotestdeinjuriasuapropria…whichmeans,noonecangainanadvantagebyhisownwrong.”

61. It was the 4th Respondent’s submission that it complied with the Tribunal’s orders by reinstating the Applicant to the position of Taekwondo National Coach but it faced objections and stonewalling from the 3rd Respondent in their letter dated 13thJuly 2021.

62. With such objections on board, it was the 4th Respondent’s submission that this was clearly an internal matter for the Applicant and the 3rd Respondent to resolve internally, which they did not.

63. In view of the foregoing, the 4th Respondent implored the Tribunal to find that it was not in contempt of the Tribunal’s orders of 9th July 2021 and discharge them from the case.

G.ISSUES FOR DETERMINATION

64. The primary issue for determination before the Tribunal is whether the Respondents are in contempt of the Orders issued by the Tribunal on 9thJuly 2021.

H.ANALYSIS

65. Before the Tribunal delves into the aforementioned issue, we should point out that we takes cognizance of the fact that the Sports Act, 2013 does not provide an express for the Tribunal’s powers to punish for contempt.

66. However, as can be seen from Section 64 of the Sports Act, the legislature clearly intended that there should be sanction for those who contravene provisions of the Act. Section 64 provides as follows:

A person who contravenes any of the provisions of this Act commits an offence and shall be liable, upon conviction, to a fine not exceedingfive hundred thousand shillings, or imprisonment for a term not exceeding three years, or both.

67. The Tribunal is established under Section 55 of the Act. Section 58 of the Act vests the Tribunalwith the mandate to determine:

a) appeals against decisions made by national sports organizations or umbrella national sports organizations, whose rules specifically allow for appeals to be made to the Tribunal in relation to that issue including—

i. ii. appeals against disciplinary decisions;appeals against not being selected for a Kenyan team or squad;

b) other sports-related disputes that all parties to the dispute agree to refer to the Tribunal and that the Tribunal agrees to hear; and

c) appeals from decisions of the Registrar under this Act.

68. The above provisions considered in totality indicate that the Tribunal is clothed with the powers to determine disputes arising under the Act. It would follow that any party that contravenes the orders issued by the Tribunal commits an offence under the Act and is subsequently liable to penal consequence. This may be a fine or term of imprisonment, whichever the Tribunal deems fit as an enforcement measure having regard to the circumstances.

69. InPatrick Mutune Katubi v General Manager, Harambee Co-Operative Savings & Credit Society Ltd & Another [2012] eKLR, the High Court observed as follows:

“It is my considered view that the letter and spirit of the Act as can be discerned from a reading of Part XIV more particularly Section 77 – 95 of the Co-operative Societies Act is that the dispute resolution mechanism in the tribunal should be self-sufficient so that once disputes are filed and heard in the tribunal, the tribunal should be in charge of enforcing its own orders and decrees either through the execution procedures in the Civil Procedure Act and Rules or by punishing for contempt of court parties who deliberately disobey its orders.”

The Court further reasoned that:

“The purpose of punishing for contempt of court is to protect and preserve the authority and dignity of a court and to promote public confidence in the administration of justice and the rule of law. Where orders of the tribunal have been blatantly disobeyed by parties litigating before it, it is in my view important for the tribunal to assert its authority and safeguard its dignity by punishing the contemnors for contempt of its orders. This is the only way that it can cultivate public confidence in its dispute settlement mechanism. The tribunal can only inspire public confidence in its system of justice if parties were discouraged from ignoring its processes….”

70. InKenya Human Rights Commission vs. Hon. Attorney General & Law Society of Kenyaat paragraph 63, the Court quoted with approval James Francis Oswald, Oswald’s Contempt of Court: Committal, Attachment, and Arrest upon Civil Process (Butterworth & Company, 1910, p. 9 where it was stated as follows:

“punishing through contempt of court is the means by which courts sanction non-compliance with its orders, judgments and decrees,and a court of justice without power to vindicate its own dignity, to enforce obedience to its mandates, to protect its officers, or to shield those who are entrusted to its care, would be an anomaly which could not be permitted to exist in any civilized community. Without such protection, courts of justice would soon lose their hold upon the public respect, and the maintenance of law and order would be rendered impossible”. [Emphasis ours]

71. Additionally, it is self-evident that the power to punish for contempt is inherent to a court or tribunal. In this respect, the Tribunal finds the following observation by Mr. Justice Chacha Mwita in Kenya Human Rights Commission v Attorney General & another [2018] eKLR to be instructive:

“The fact that the power to punish for contempt is inherent and not granted by statute, follows the recognition by the Constitution in Article 159 that judicial authority is derived from the people and vests in, and is exercised by the courts and tribunals established by or under the Constitution. Judicial authority having been derived from the people, the judiciary serves the public and courts make pronouncements for and on behalf of the people. In doing so, courts act only in accordance with the constitution and the law asdemandedbyArticle160(1)oftheconstitution.Inthatrespect,therefore,thepowersofthecourtsmustbeviewedfromthesupremacyclauseinArticle2(1)oftheconstitutionsothatanyattempttolimitthepowertopunishforcontemptviolatesafoundationalconstitutionalvalueonjudicialauthority.Anylegislationoncontemptmustbeinadditiontobutnotinderogationoftheconstitutionforsuchlimitationorderogationwillsurelybeunconstitutional.“

72. It follows from the above passage that the Tribunal, like any court of law, does in fact have the inherent power to punish for contempt despite it not being expressly provided for.

73. The Tribunal will therefore now proceed to address the pertinent issue before it, which is whether the Respondents are in contempt of the orders issued by the Tribunal on 9thJuly 2021.

74. The Applicant submitted that the Respondents deliberately disobeyed the Tribunal’s orders by failing to grant him access to the Taekwondo team, fully making provision for the Applicant as a member of the Kenya Taekwondo 2020 Olympics and granting him all the benefits attendant thereto including kitting, travel arrangements, visa and accreditation.

75. There is no dearth of literature on the subject of contempt of court. However, for the purpose of this decision, we will focus on the four elements that must be proved to make out a case for civil contempt as highlighted by the Applicant and as set out by Hon. Justice Mativo inSamuel M. N. Mweru & Others v National Land Commission & 2 others[2020] eKLR:

a) The terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on thedefendant;

76. It is undisputed that the Tribunal had issued orders on the 9thJuly 2021 and the same were clear, unambiguous and binding on the parties.

77. The 1st, 2nd, 3rd and 4th Respondents and their servants, agents, or anyone claiming under them were restrained from interfering, blocking access, or denying the Applicant from discharging his duties as the Coach of the Olympic team.

78. Further, the 4th Respondent, was ordered to reinstate the Applicant to the camp, grant him full access to the Taekwondo team and to fully make provision for the Applicant as a member of the Kenya Tokyo 2020 Olympics team granting him all benefits attendant thereto including kitting, travel arrangements, visa and accreditation.

b) The defendant had knowledge of or proper notice of the terms of the order;

79. As part of common practice, the Tribunal serves the parties with all directions, orders, rulings and judgments via their respective e-mail addresses and service of the orders issued on 9thJuly 2019 was no exception. None of the Respondents contend that they had no knowledge of the Order.

c) The defendant has acted in breach of the terms of the order

80. The 1st, 2nd, 3rd and 4th Respondents and their servants, agents, or anyone claiming under them were restrained from interfering, blocking access, or denying the Applicant from discharging his duties as the Coach of the Olympic team.

81. However, the Tribunal observed that by a letter dated 13thJuly 2021, the 2nd Respondent wrote a letter to the 4th Respondent not to allow the Applicant to travel as the Taekwondo Coach at the Tokyo Olympics allegedly for lack of a Level II coaching certificate. Simultaneously, they facilitated the travel to the Tokyo Olympics of a coach who did not meet the relevant criteria. The allegation that the coach had registered to undertake the necessary courses in Tokyo was in the Tribunal’s view dishonest and intended to circumvent the orders of the Tribunal.

82. In the Tribunal’s view, the 1st, 2nd and 3rd Respondent’s conduct amounts to deliberate interference and blocking access of the Applicant from discharging his duties as the coach for the Olympic team. It goes without saying that the 2nd Respondent was acting on behalf of the 3rd Respondent as its Secretary General.

83. The Tribunal takes cognizance of the fact that public funds are expended in sending Kenyan teams to international competitions such as the Olympics.

84. The 4thRespondent on the other hand was ordered to reinstate the Applicant to the camp, grant him full access to the Taekwondo team and to fully make provision for the Applicant as a member of the Kenya Tokyo 2020 Olympics team granting him all benefits attendant thereto including kitting, travel arrangements, visa and accreditation.

85. It was the 4th Respondent’s submission that on 12th July 2021, it communicated with the Applicant informing him of his re-instatement as a Tokyo 2020 coach in compliance with the Tribunals orders.

86. The Tribunal noted that the 4th Respondent complied with the Tribunal’s orders but later acted contrary to the Tribunal’s orders by facilitating the travel of one Mr. Eliakim Ogenga.

d) The defendant's conduct was deliberate.

87. As rightly pointed out by the 4th Respondent during the hearing, the refusal to obey an order should be both wilful and mala fide.

88. In looking at this last limb of the test, the Tribunal would like to analyse the 1st, 2nd and 3rd Respondents conduct separately from that of the 4th Respondent.

89. The 1st to 3rd Respondents in their further Replying Affidavit filed on 1st November 2021 acknowledged that it is the duty of the 3rd Respondent to appoint coaches as per the qualifications in its constitution.

90. Notably, every federation is required to have a selection criteria that applies to coaches and players, and the relevant qualifications must be met before travelling for the Olympics. Indeed, the Second Schedule to the Sports Act requires “that the selection of the Kenyan team and the technical personnel shall be done in good time and transparently using fair criteria”.

91. It was the 1st, 2nd and 3rd Respondent’s evidence that the reason the Applicant’s travel was hindered was because he lacked the Level II certification.

92. However, as highlighted in the Applicant’s further-further affidavit filed on 26th October 2021 wherein he adduced evidence to the effect that the coach,Mr. Eliakim Ogenga, who was facilitated to travel to Tokyo by theRespondents for the Kenya Taekwondo Team for Tokyo Olympic Games2020 only obtained the Level I certificate between 20th- 21stJuly, 2021 whilealready in Tokyo, Japan. Therefore, he did not have a Level II Certificatebefore leaving for the Olympics.

93. The 1st, 2nd and 3rd Respondent averred that Mr. Eliakim Ogenga made the effort to register and pay for the certification course and was thus eligible.

94. This begs the question, if registration and payment for the certification course was the criteria the 1st, 2nd and 3rd Respondent were gauging, why was the same opportunity not afforded to the Applicant in view of the fact that there were existing orders from the Tribunal?

95. Additionally, and as rightly pointed out by the Applicant, the Tribunal has, as and when required, accommodated the strict timelines that parties are subject to and expedited hearings, and on some days extended the hearings very late into the night to arrive at a just determination of the issues before it. If indeed the 1st, 2nd and 3rd Respondents were acting in good faith as stated by counsel, why then did they not seek review of the Tribunal’s orders upon realization of the lack of qualification of the Applicant?

96. Further, the letter dated 23rdMay 2021 from World Taekwondo Africa stated categorically that coaches without Level II certificate would not be allowed to coach in the Olympics. The same position is reiterated in the 3rd Respondent’s letter dated 13thJuly 2021 to the 4th Respondent. What criteria then did the 1st, 2ndand 3rdRespondents use to evaluate the eligibility of Mr. Eliakim Ogenga seeing as he did not hold a Level II certificate before leaving for the Olympics?

97. It is trite that a party cannot approbate and reprobate at the same time as and when it works to foster their interests.

98. In view of the above, the Tribunal finds that the 1st, 2nd and 3rd Respondent acted in bad faith.

99. Having established the above, the Tribunal would like to turn to the conduct of the 4th Respondent.

100. As we understand it, it is the duty of the 3rd Respondent to select coaches as per the requirements in its constitution as well as the regulations set out by international bodies it is affiliated with, which in this instance was the World Taekwondo.

101. The 3rdRespondent is then required to forward a list of coaches who have met the national qualifications to the 4th Respondent. The list will usually contain the names of several people who have met the qualifications in the event the appointed coach fails to attend the games for whatever reason, the 4th Respondent has an option of another person.

102. The 4th Respondent then has the responsibility to facilitate the travel of the coaches and personnel selected by the 3rd Respondent.

103. It was the 4th Respondent’s evidence that sports federations are the technical experts and offer their advice and guidance to the 4th Respondent in their respective disciplines as guided by their International Federations. Therefore, it relied on the sports federations to select their technical officials for the Tokyo 2020 Olympic Games.

104. Additionally, the 4th Respondent argued that the President and Secretary General have no administrative responsibility over the day-to-day management of the Olympic Games.

105. However, the Tribunal notes that during the hearing of the application dated 25thJune 2021, the 4th Respondent informed the Tribunal that it would take no sides but would abide by the decision of the Tribunal as the decision to deny the Applicant access to the team was not that of the 4th Respondent but emanated from the 3rd Respondent.

106. The 4thRespondent partially complied with the orders of the Tribunal by re-instating the Applicant then went back on its obligation.

107. Despite its assertion that this was an internal matter between the Applicant, the 1st, 2ndand 3rdRespondent and World Taekwondo Africa, the 4th Respondent was part of the proceedings before this Tribunal and there were orders that were directed to it which obligated it to take action.

108. Granted, the 4th Respondent’s role does not extend to the selection of the coaches or personnel who attend the Olympics, but in view of the fact that the Tribunal had ordered the 4th Respondent to facilitate the travel of the Applicant and it failed to do so, is evidence of wilful disobedience of the Tribunals orders.

109. However, the Tribunal has not satisfied itself on whether the refusal to comply was mala fide.

110. The Tribunal is guided by the Court’s finding in the case ofSamuelM.N.Mweru(supra) where it was heldinteraliathat:

“Two principals emerge. The first is liberty:-it is basic to our Constitution that a person should not be deprived of liberty, albeit only to constrain compliance with a court order, if reasonable doubt exists about the essentials. In this regard, I am not satisfied that wilful disregard of the court order has been established.”

The second reason is coherence. It is practically difficult, and may be impossible, to disentangle the reasons why orders for committal for contempt are sought and why they are granted. In the end, whatever the applicant’s motive, the court commits a contempt respondent to jail for Rule of Law reasons; and this high public purpose should be pursued only in the absence of reasonable doubt. Accordingly, it is impermissible to find an alleged contemnor guilty of contempt in the absence of conclusive proof of the essential elements. The requisite elements must be established beyond reasonable doubt. In such a prosecution the alleged contemnor is plainly an ‘accused person.

Third, accidental or unintentional disobedience is not sufficient to justify one for holding guilty of contempt.It is further relevant to bear in mind the settled law on the law of contempt that casual or accidental or unintentional acts of disobedience under the circumstances which negate any suggestion of contumacy, would amount to a contempt in theory only and does not render the contemnor liable to punishment.

I. DETERMINATION

111. The purpose of the Sports Act as can be discerned from the Preamble is to promote the development of sports within the country, and this is done through the various institutions established under the Act, the Respondents included.

112. It is the Tribunal’s view in this particular instance, that the Respondents are entrusted with the responsibility of promoting the sport of taekwondo in accordance with the objectives of the Act and cannot be seen to be the same ones bringing the sport into disrepute by sending unqualified coaches to national Olympics, using arbitrary criteria for their selection and defying the Tribunal’s orders.

113. Contempt is conduct that impairs the fair and efficient administration of justice. It is therefore fundamental to the rule of law that orders of courts or tribunals must be obeyed and where an individual is enjoined by an order of the court to do or to refrain from doing a particular act, such person has a duty to carry out that order.

114. The Court in the case of Econet Wireless Kenya Ltd v. Minister for Information & Communication of Kenya & another [2005] KLR 828, Ibrahim, J. (as he then was) in underscoring the importance of obeying court orders quoted with approval the case of Hadkinson –vs- Hadkinson(1952)2AllER.567stating:

“It is essential for the maintenance of the rule of law and order that the authority and the dignity of our courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against whom an order is made by court of competent jurisdiction, to obey it unless and until the order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by the order believes it to be irregular or void.”

115. In view of the above, it is the Tribunal’s finding that the 1st, 2nd and 3rdRespondents acted in contempt of the Tribunal’s orders issued on 9thJuly 2021.

116. With regard to the 4th Respondent, the Tribunal finds that while it acted in contravention of the orders, such contravention does not meet the threshold of contempt as the 4th Respondent has been able to demonstrate to the Tribunal’s satisfaction that it did not act in such manner as to deliberately seek to undermine the Tribunal’s dignity and authority. Such contravention is therefore not liable to punishment for contempt but the 4th Respondent will not escape without some censure by way of warning. In the future, it must not allow itself to be used by federations to evade compliance with the Tribunal’s orders and directions.

117. The orders that commend themselves to the Tribunal in view of the forgoing are as follows:

I. The 1st, 2nd and 3rd Respondent have by their conduct been contemptuous of the orders of this Tribunal and are convicted accordingly.

The 1st and 2nd Respondents, being officials of the 3rd Respondent are

II. hereby ordered to pay a fine of Kshs. 200,000. 00 each personally within fourteen (14) days of today’s. Failing compliance, the 1st and 2nd Respondents will be committed to civil jail for three (3) months.

III. The matter shall be mentioned on Thursday 16th December 2021 at

2. 30 pm at the Tribunal’s hearing room on the 24th Floor, NSSF Building, Bishops Road, Nairobi to ascertain whether there has been compliance. The 1st and 2nd Respondent’s personal attendance will be required;

IV. Costs of this applicationto the Applicant.

DATED AT NAIROBI THIS 1ST DAY OF DECEMBER, 2021.

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JOHN M. OHAGA, SC, CArb - CHAIRPERSON

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Mrs. J Njeri Onyango– MEMBER

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Mrs. Elynah Sifuna- Shiveka – DEPUTY CHAIRLADY