[2024] KESDT 85 (KLR)

Maina v Kenya Aquatics Federation & 2 others (Appeal E057 of 2023) [2024] KESDT 85 (KLR) (24 January 2024) (Decision)

Neutral citation: [2024] KESDT 85 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Appeal E057 of 2023

A.M Owinyi, Chair, MN Kimani & Gabriel Ouko, Members

January 24, 2024

Between

Jen Monyo Maina

Appellant

and

Kenya Aquatics Federation

1st Respondent

Maureen Owiti

2nd Respondent

Collins Marigiri

3rd Respondent

Decision

1. The Appellant is an adult female of sound mind and disposition and a Kenyan citizen.

2. The 1st Respondent is a sports organization established under the Sports Act, the 2nd and 3rd Respondent are officials duly appointed and holding office under with 1st Respondent. In particular, the 3rd Respondent is the Secretary General of the 1st Respondent.

ackground 3. The Appellant has approached the Sports Disputes Tribunal (‘the Tribunal’) under a Certificate of Urgency, Notice of Motion and Supporting Affidavit seeking to be heard urgently and seeking interim Orders of injunction staying the Respondents’ decision to select Winfred Warui or any other person as the team manager for the team set to represent Kenya at the 21st World Aquatics Swimming Championships to be held in Doha.

4. The matter was mentioned on 9th January 2023, Mr. Omwebu appeared for the Appellant and Mrs. Winfred Warui appeared for the Respondents. The counsel for the Respondents noted that she had filed the Statement of Response but due to technical issues with her network was unable to serve and sought leave to serve. Mr. Omwebu suggested that the person nominated for the Team manager position should be a party to the proceedings which the Tribunal noted is a critical point to avoid conflict of interest as Mrs. Warui is counsel and an appointee as Team Manager. Mrs. Warui confirmed that she did not apply for the position and neither did the Appellant apply and that there was no Applicant to the position of Team manager. Furthermore, Mrs. Warui submitted that the deadline was issued, with no interested parties, and the decision to appoint her had to be made quickly because deadline was fast approaching for officials. With respect to the timelines, the Open Waters Events are scheduled to take place on 28th January 2024. Mrs. Warui confirmed that she is certain that the athletes are not being prejudiced. Mr. Omwebu noted that the foundation of the appeal was that there is a set out selection criteria that was not adhered to by the Respondents. Further, on 5th January 2014, Mrs. Warui was present in the meeting contrary to the orders of 29th December, 2023. As such, the business appears to continue as usual despite the Tribunal orders.

5. The Tribunal gave orders and directed that; the Respondents serve a Response to the allegations in the Appeal by close of the day, the Appellant file and serve a Response to the Respondents’ Statement of Response within 48 hours from the date of service, counsel for the Respondents shall consult with the Respondents on the issue of legal representation to eliminate the potential conflict of interest evident, the Respondents to consider if they shall join the present nominee of the position of Team manager as a party to the matter and the matter be listed for hearing on the 16th of January 2024.

6. Before the Tribunal for hearing on 16th January 2024, the Respondent’s advocate requested for time to familiarize with the matter as they had just received instructions and file a supplementary affidavit. Mr. Omwebu opposed the application citing that the pleadings had been closed and noted that the Respondents were deliberately trying to delay the matter.

7. The chairperson noted that viva voce evidence could be admitted. The Tribunal directed that the further affidavit sworn on 12th January by the Appellant be admitted and the Respondents have leave to file Supplementary Affidavits by 12 noon on 17th January 2024. The hearing was rescheduled to 17th January at 2:30 p.m. virtually.

8. On 17th January the matter proceeded with counsels for both parties making submissions on their case.

The Appellant’s Submissions. 9. The Appellant through her advocate submitted that the appeal was against the Respondent’s decision to select Winfred Warui as the team manager for the team set to represent Kenya at the 21st World Aquatics Swimming Championships to be held in Doha.

10. The Appellant submitted that the decision was made contrary to the selection criteria published by the Respondents and that the decision was made out of considerations that are not core to matters sports and not in the interests of athletes in the Kenyan swimming team.

11. The Appellant highlighted that there is a selection criterion for swimmers, coach and team manager and that the criteria for both swimmers and coach selection was followed but not that of selection of team manager.

12. She cited the criteria in the bundle of documents (Page 2-5) of the Appellant’s Affidavit as well as (Page 6-9) Replying Affidavit by Respondent.

13. The Appellant submitted before the Tribunal that the appeal mainly focused on criteria No 3, 4, 6 and 7 and how criteria relate to team selection.

14. he Appellant submitted that the team manager appointment was contrary to the Sports Disputes Tribunal Rules 2022 citing Section 3 which addresses the methods and standards of team selection and criteria. The appellant stated that the team selection is not a matter of the body/party discretion but rather the methods and standards of team selection should be applied and that the actions or inactions of a member under consideration for team manager is crucial.

15. The Appellant mainly pointed Clause 6. 2 of the Criteria No. 4 which stated that one must declare themselves eligible for selection prior to two months before and have good understanding and technical knowledge of the sport. The selected team manager Winnie Warui indicated she did not apply and was not interested in that position and that the decision was arrived at in her absence. There is contradiction of the same on the Replying Affidavit where the 3rd Respondent notified the Appellant that the Winnie Warui was the only one who showed interest. (Page 29 of the 3rd Respondent’s email Replying Affidavit).

16. The Appellant averred that the process was contrary to Sports Disputes Tribunal Rules on methods and standards and that the appointment was unilateral citing the case of John Kameta.

17. On the question of jurisdiction, the Appellant stated that the matter was within the ambit of Sec 58 (a)(2) of Sports Act on jurisdiction as the team manager being selected is of a Kenyan team.

18. The Appellant addressed non selection defining the term as failure to select a person, she submitted that no selection was involved but rather a unilateral appointment.

19. The Appellant addressed the issue of locus standi and whether the appeal was properly brought by stating that the Appellant had no prejudice or any interest on this particular appointment and that no prejudice is suffered if the appointment is challenged.

20. The Appellant stated that she was a Kenyan citizen, parent to one of the swimmers in the team, certified International Technical Official, former member of the Interim Management Committee and a Team Manager to 2022 Birmingham Commonwealth Games, 2019 FINA World Swimming Championships in Gwangju, South Korea and 2016 FINA World Swimming Championships in Windsor, Canada.

21. The Appellant cited the following jurisprudence on locus standi which the Appellant relied on; Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & another [2016] eKLR and Ms. Priscilla Nyokabi Kanyua Vs Attorney General & Interim Independent Electoral Boundaries Commission Nairobi HCCP No. 1 of 2010

22. The Appellant indicated that one must have minimal personal interest which the Appellant stated she represents much more than minimal interests as set in the tests by the courts on the matter on interests and that she had substantial interest. She also cited the case of Khelef Khalifa El-Busaidy vs Commissioner of Lands & 2others (2002) eKLR that the interest must be legal.

23. In conclusion the Appellant stated that she had shown she possess legal interest and that the Respondents won’t suffer any prejudice.

24. The Appellant also questioned on the Respondents’ issue of timelines being so short that the appointments had to be made. The Appellant submitted that the Respondents should have made calls for selections to be carried out and that the short timelines did not satisfy reason to depart from selection criteria and that the Respondents did not reach the threshold to be allowed to negate from the process.

25. The Appellant also addressed the issue of not exhausting internal disputes remedies before approaching the Tribunal by citing paragraph 14 of Further Affidavit indicating that emails were sent by the Appellant indicating that internal mechanisms were sought with no response from the Respondents.

26. The Appellant also challenged the validity of the 1st Respondent’s Constitution cited by the Respondents stating that no full document was presented before the Tribunal and only excerpts and that its existence is questionable. The Appellant also informed the Tribunal that the 1st Respondent had a suit pending challenging the appointment of the 2nd and 3rd Respondents.

27. The Appellant stated that the Constitution will only be valid if it complied with Sec 46 of the Sports Act, S.R Regulations 2016 and that the constitution if it exists is as a draft which has yet to go through the motions required. The 1st Respondent must possess a Certificate of Registration from the Sports Registrar.

28. The Appellant states that no internal mechanisms exist as purported by the Respondent and that the Appellant had a right to approach the Tribunal after making several attempts to no end.

29. In conclusion the Appellant stated that the appointee was not able to do the job based on the criteria published, the appointee is not qualified and the Appellant prays the Tribunal consider the appeal and seek costs of the suit. The Appellant prays that the Respondents be directed to appoint the team manager based on the criteria set and following the methods and standards of selection.

30. The Appellant stated that averments on the timelines are not supported by any evidence, are not valid and failure to not abide by the law should not be a reason to make averments not backed by any evidence.

The Respondents’ Submissions 31. The Respondents through their counsel Mr. Keiro submitted that the Respondents will rely on their Replying Affidavit dated 8th January 2024.

32. On the issue of locus standi, the Respondents submitted that the Appellant lacked locus standi as she is not an athlete nor a party or public entity party to the proceedings. The Respondents averred that the Appellant did not fit the role of an interested party.

33. The Respondent cited the doctrine of exhaustion stating that the Appellant failed to exhaust all the internal avenues such as the Governance & Ethics Committee before approaching the Tribunal.

34. The Respondent stated that the 2nd & 3rd Respondents had not been removed from office and were still serving in the Executive Committee of the 1st Respondent.

35. The Respondent submitted that it was necessary for a decision to be made as no one had applied to be considered for the position of team manager. He insisted that the discretion of appointing Winfred Warui was still within the criteria of considering a Team manager.

36. The Respondent’s averred that the appointment was not a final decision and that the selection was not rejected by World Aquatics hence a competent selection. The Respondent stated that the internal offices have a discretion to appointment and select individuals to take part in Olympics.

37. The Respondents pointed out that Winfred Warui should have been enjoined as a party to these proceedings in order to answer to some of the issues raised concerning eligibility and qualifications.

38. The Respondents prays that the application and the appeal be dismissed and costs be awarded to the Respondents.

Analysis and Determination 39. The Tribunal, being a creature of statute, derives its jurisdiction from the Sports Act. This position has been established by the Supreme Court in Samuel Kamau Macharia -vs- Kenya Commercial Bank Limited & 2 Others, where it was stated that:‘A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.’

40. Section 58 of the Sports Act sets out the jurisdiction of this Tribunal as follows:“The Tribunal shall 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.appeals against disciplinary decisions;ii.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; andc.Appeals from decisions of the Registrar under this Act.

41. The Tribunal seeks to remind the parties of its mandate by asserting its creation as a specialized sports external dispute resolution mechanism for parties within the country and clothed with mandate and jurisdiction to adjudicate on sports related matters to the extent that it is able to consider within its powers. It is precisely for this reason that Section 46(5) of the Act makes it obligatory for sports organizations to submit a constitution to the Registrar of Sports prior to registration which shall contain as a basic minimum, the provisions set out in the Second Schedule to the Sports Act. The Second Schedule then goes ahead to list under (f) that:“The constitution of a body seeking registration as a sports organization shall provide that (f) subscription to Court of Arbitration of Sports policies and rules which conform with requirements set out in Sports Disputes Tribunal policy and rules for sports disputes resolution.”The Constitution of the Kenya Aquatics was however not placed before the Tribunal.

42. Based on the above legal provisions, particularly Section 58 (a)(ii) of the Sports Act, the Tribunal is given the jurisdiction to adjudicate the matter. Kenya Aquatics is a national sports organization and one not being selected to be a part of the organization would fall as part of it as well as the appeal against the appointment of Winfred Warui as Team manager. The appeal is thus properly before the Tribunal.

43. The Respondents challenged the locus standi of the Appellant to bring the appeal before the Tribunal citing that the Appellant did not apply for the position of the Team manager and as such lacks any interest to challenge the appointment. The Respondent also submitted that the Appellant had not shown that she would suffer any prejudice from the appointment.

44. The Tribunal will rely on the case cited by the Appellant of Khelef Khalifa El-Busaidy vs Commissioner of Lands & 2others (2002) eKLR in which the court held that for an individual to have locus standi, he must have an interest either vested or contingent in the subject matter before the court which interest must be a legal one. Such interest must be above that of other members of the public in general.

45. The Appellant in this case stated in the Supporting Affidavit dated 27th December 2023 in Paragraph 1 that she is a Kenyan citizen, parent to one of the swimmers in the team, Certified International Technical Official, former member of the Interim Management Committee and a Team Manager to 2022 Birmingham Commonwealth Games, 2019 FINA World Swimming Championships in Gwangju, South Korea and 2016 FINA World Swimming Championships in Windsor, Canada.

46. The Tribunal finds that the Appellant has attained the necessary threshold required to have locus standi based on her position and qualifications that she possesses and has shown to have legal interest on the subject matter. The Appellant’s past experience as a Team manager as well as being a parent to the one of the swimmers and as a member of the public gives more than the minimal interest to appeal the 1st Respondent’s appointment.

47. The Tribunal also notes the case of SDTSC 006 of 2023 Purity Njoki & Another Vs Kenya National Sports Council & 3 Others stated as follows;“Gone are the days where locus standi required while filing matters had to be direct. The current Constitutional dispensation has widened the scope of legal standing to include persons who may lodge claims, suits and/or matters before judicial bodies on behalf of the general public. This is in consonance with the Court of Appeal decision in Mumo Matemu vs Trusted Society of Human Rights Alliance and 5 Others cementing the place of Article 22 and 258 of the Constitution in our current legal order.”

48. The Sports Disputes Rules, 2022 define“selection criteria” to mean “the method andstandards through which persons are nominated or chosen to teams or squads”. The Respondents confirm and admit that they published selection criteria for the teammanager forthe Kenyan team to WA World Championships 2024 in DOHA, Qatar.

49. The applicable provisions of the Sports Act as read together with the Sports Disputes Tribunal Rules stipulate that selection criteria must be premised uponmethods and standards and there is no legal provision exempting anyone from the general rule.

50. The Tribunal has previously pronounced itself on the need for clarity in the selection criteria. Indeed, the Tribunal stated in Swaleh Talib Abubakar Vs Stabilization Committee of The Kenya Swimming Federation & 4 Others SDTSC E018 of 2023 that: -“53. Therefore, unless exceptional circumstances can be substantiated, any departure from the established rules must not be entertained or permitted.”

51. The criteria were cited by the Appellant at pages 22-25 of her Supporting Affidavit and the Respondents’ Replying Affidavit at pages 6-9. The selection criteria published for the selection of the Team manager was as follows;i.Must be a Kenyan Citizen;ii.Must submit a current Certificate of Good Conduct;iii.Previous experience of managing a national team to an international competition of equivalent level;iv.Must declare him/herself eligible for selection prior to 2 months before the event;v.Must be a Kenyan Citizen and hold a valid Kenyan passport which expires not earlier than 6 months subsequent to the competition, which meets the entry requirements of the event organizer and or the host country;vi.Must have a good understanding and technical knowhow of the Sport;vii.Must have good and demonstrable administrative or other professional skills and experience;viii.S/he has no prior record of disciplinary action taken against her/him on matters regarding management of athletes, minors or such other action;ix.Must sign the KA Code of Conduct.

52. The Respondents’ Counsel confirmed that no calls for selection for the position of Team manager were made after the publication of the selection criteria stating it as being an oversight on the part of the Respondents. The Respondents claim that Winfred Warui was the most qualified and the only applicant is therefore ruled out by the Tribunal based on the assertions made by the Respondents.

53. The Respondents in their submission before the Tribunal stated that the appointment was made in their discretion and based on the 1st Respondent’s Constitution. The Respondents however failed to furnish a copy of the Constitution so as to support their decision on appointing Winfred Warui and negating from upholding the selection process. Section 4(3)(g) of Fair Administrative Actions Act states that, where an administrative action is likely to adversely affect the rights of any person, the administrator shall give the person affected by the decision; information, materials and evidence to be relied upon in making the decision or taking the administrative action.

54. Further, the Act also provides in Section 6 that where the administrator is empowered by any written law to follow a procedure which conforms to the principles set out in Article 47 of the Constitution, the administrator may act in accordance with that different procedure. In this instance, the Tribunal is not privy to the Constitution of the 1st Respondent and as such cannot rule on the decision solely based on the Respondents’ excerpts and statements. 55. The Tribunal therefore rules that the Respondents did not follow the rules set out on selection as well as the methods and standards required when selecting a team manager and as such the appointment of Winfred Warui is illegal and basically an appointment at the discretion of the Respondents and not selection as envisaged by the Sports Act’s Second Schedule (h).

56. The Respondents averred that the Appellant had not exhausted the internal remedies before approaching the Tribunal. It is not disputed that the Appellant is not a member of the 1st Respondent. This therefore means that the Constitution and other by-laws of the 1st Respondent are not applicable and are not enforceable upon the Appellant.

57. The Respondents raises the question on the doctrine of exhaustion. The doctrine of exhaustion of administrative remedies states that a person challenging an administrative body’s decision must first pursue the agency’s available remedies before seeking judicial review.

58. In this case, the Tribunal notes that the Appellant sent several emails to the 3rd Respondent on the 3rd of December 2023 seeking to establish who had been selected as team manager which got a response on 4th December 2023 indicating that they would communicate on the same but in the meantime the Secretary General will handle the team preparations and queries. On the 15th of December the Appellant had not received any notifications and requested for the progress with another email to which the 3rd Respondent responded the next day that Winfred Warui was the Team Manager.

59. The Appellant not being a member of the 1st Respondent had no locus standi to approach the internal avenues set in place, if any, by the 1st Respondent and as such the allegations are not merited.

60. In the view of the above, the Tribunal orders the following:i.The Respondents decision to select the Team Manager for the team that is set to represent Kenya at the 21st World Aquatics Swimming Championships to be held in Doha, Qatar between February 2-18, 2024 was irregular, null and void.ii.The Respondents’ decision to appoint Winfred Warui as the Team manager for the team to represent Kenya at the 21st World Aquatics Swimming Championships to be held in Doha, Qatar is hereby quashed.iii.The Respondents are hereby directed to select a team manager for the team in an open, fair, transparent and competitive process in tandem with the criteria published by the Respondent and released together with the Summons for the National Time Trials Long Course Swimming Championships held between November 4-5, 2023 at the MISC Kasarani Aquatic Centre, Nairobi.iv.Costs of the Appeal be borne by the Respondents.

DATED AT NAIROBI THIS 24TH DAY OF JANUARY 2024Signed:.......................................ALLAN MOLA OWINYI – PANEL CHAIRPERSON........................................MS. MARY KIMANI - MEMBER...........................................MR. GABRIEL OUKO - MEMBER