[2024] KESDT 2 (KLR)

Mohamed v Kenya Aquatics & 2 others (Appeal E052 of 2023) [2024] KESDT 2 (KLR) (15 January 2024) (Decision)

Neutral citation: [2024] KESDT 2 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Appeal E052 of 2023

E.Sifuna-Shiveka, Chair, A.M Owinyi & Benard Murunga Wafula, Members

January 15, 2024

Between

Ridhwan Mohamed

Appellant

and

Kenya Aquatics

1st Respondent

Maureen Owiti

2nd Respondent

Collins Margiri

3rd Respondent

Decision

1. The Tribunal rendered a Decision on 11th December 2023 in respect of the application by the Appellant, a swimmer, who had petitioned the Tribunal in respect of the selection that had been made by the Respondents, the National Federation for swimming in Kenya together with its officials, in respect of the team that was to represent Kenya at the 2024 World Aquatics Championships.

2. In the Decision, the Tribunal was not inclined to disturb the selection by the Respondents and in effect disallowed the application by the Appellant.

3. The Appellant filed an application for the Review of the decision under a Certificate of Urgency on 20th December 2023 which was nine days after the delivery of the Ruling by the Tribunal and fell within the allowable timelines for the application for Review.

4. The Sports Disputes Tribunal Rules 2022 anticipate the applications for Review of its decisions and under the second Rule 22 (ostensibly Rule 25) as per the numbering of the Rules states as follows:(1)The Tribunal may on the application of any party or on its own motion review a decision in any of the following circumstances-(a)Where after the exercise of due diligence, a new and important matter or evidence has been discovered which was not within their knowledge or could not be produced at the time the decision was made.(b)Mistake or error apparent on the face of the record; or(c)Any other sufficient reason.(2)A party aggrieved by the decision of the Tribunal may apply for review in writing and shall file the application within twenty-one days of the decision.

5. In making the application for the Review of the Tribunal’s decision of 11th December 2023, the Appellant has in addition relied on other sections of the law including Section 80 of the Civil Procedure Act (Cap 21 of the Laws of Kenya) and Order 45 Rule 1 of the Civil Procedure Rules made thereunder.

6. The application for the Review of the decision sought to disturb the decision by making orders that were injunctive at first instance on an ex parte basis if the urgency had been so determined and then subsequently orders that were directive and supervisory on the selection of the athletes to represent Kenya at the 21st World Aquatic Swimming Competition.

7. When the Appellant approached the Sports Disputes Tribunal in the application for Review, the matter was placed before the Hon. Chair of the Tribunal who certified the matter as urgent and granted an interim order restraining the Respondents from submitting the nomination list per the Selection List pending the hearing and determination of the application for Review.

8. In addition, directions were given for the service of the application on the Respondents with the Respondent expected to file the Reply to the Application by 5th January 2024 whilst the Appellant could similarly file a Response to the same by 8th January 2024 with the matter set for directions on 9th January 2024.

9. On 9th January 2024, further directions were given extending the respective dates with the Respondent now expected to file the Reply to the Application by 11th January 2024 whilst the Appellant could similarly file a Response to the same by 12th January 2024 at 10. 00am with the matter set for Hearing on 12th January 2024 at 11. 00am before the panel that had heard the matter in the first instance.

10. It is noteworthy to mention that the tightness of the deadlines in the matter was due to the impending deadline of 16th January 2024 when the Respondent was due to complete the process of registration for the 2024 World Aquatics Championships.

11. In view of this, it is necessary for the Tribunal to set out in extenso the various deadlines that were set out by World Aquatics as per the information that was available and presented to the Tribunal at the time the decision of 11th December 2023 was rendered:18. Registration Procedure And Sport EntriesThere will be three (3) successive entry steps to provide information to World Aquatics and the Organizing Committee (OC) in order to register for the World Aquatics Championships. All the communication between the OC and Members will be confirmed by email. All Registrations and Entries shall take place through the World Aquatics General Management System (GMS) which can be accessed by Link - GMS.Please note that the registration for the World Aquatics Championships Doha 2024 is to be opened on 5 October 2023. The entry steps are as follows:I.Preliminary EntriesTo be submitted through the GMS by 7 November 2023, 23:59 GMT.The Preliminary Entry is for the purpose of confirming the participation of the World Aquatics Member and indicating to the OC the maximum number of competitors, representatives, coaches, official delegates, etc., which each Member intends to register in each discipline.II.Final Nominations (entries By Name)To be submitted through the Aqua GMS by 12 December 2023, 23:59 GMT.The Final Nominations is the final deadline to register all Athletes, Team Officials and Member Representatives, that includes all relevant data for the purposes of Accreditation, Visa free entry, possible travel details and accommodation.All nominations must be submitted with the requested information duly and correctly completed in the World Aquatics GMS. By this date, the Member must also have completed the final room requests (exact number of rooms, dates, etc.) and provide the OC with the complete rooming list in the World Aquatics GMS.After This Deadline It Will Not Be Possible To Register Any More Individuals To The Event. The Number Of Registrations Must Not Exceed The Numbers Submitted In The Preliminary Entry.The only exception allowed until the sport entries deadline is: Replacement in case of injury or illness, a person can be cancelled and another added, based on medical certificate.Note: It is possible for the Members to register long lists but these long lists should be reasonable and not exceed the numbers below, based on the preliminary entries.By discipline, for Artistic Swimming, Diving, Swimming, Open Water and High Diving:1-2 athletes: +1 extra3-4 athletes: +2 extra5-10 athletes: +3 extra11-20 athletes: + 4 extra…The World Aquatics GMS will not allow more registrations and the final list must be confirmed to World Aquatics before the sport entries deadline.III.Final Sport EntriesTo be submitted through the Aqua GMS by 16 January 2024, 23:59 GMT.All Athletes must be registered for the event(s) they will be participating in. Specific information depending on the discipline will be requested to complete the sport entries. No late entries will be accepted. Exception, Water Polo: The final sport entry deadline only for water polo teams is 29th January 2024, 23:59 GMT.Athletes with no sport entries completed on this date will be cancelled.19. Qualification And Entries Of Competitors19. 1SwimmingEntry times will only be accepted if they have been achieved at a World Aquatics-approved qualification event within the period 1 October 2022 – 19 December 2023. All times achieved outside this qualifying period will not be accepted. Competitions approved as qualifying events for the World Aquatics Championships-Doha 2024 and/or the Olympic Games Paris 2024 will be automatically considered as qualifying events for the World Aquatics Championships-Doha 2024, provided that the dates fall within the respective qualifying period.As the World Aquatics Championships-Doha 2024 is one of two qualifying events for relays for the Olympic Games Paris 2024, World Aquatics has decided to expand the methods by which Member Federations can qualify for Doha. Federations can either qualify relays via the current method of which forming a team of swimmers who have qualified for an individual event, and additionally, time standards for male and female relays have been established for the following relay events:…

12. In the decision that was rendered on 11th December 2023, the Tribunal had found as follows:The Tribunal was open to exercising its discretion to allow the Appellant to submit evidence from any other open World Aquatics sanctioned qualification events within the period October 1, 2022, to December 19, 2023. However, the crucial point is that such evidence was absent at the conclusion of the submissions.

13. The Appellant has now approached the Tribunal and as part of his evidence he has submitted that he took part in the 2023 Coimbra Swimming Open in Portugal held between 14th December 2023 and 18th December 2023 where he clocked 52. 87 seconds in the boys 100 meters freestyle. The effect of this result is that it places him higher than previously placed in the rankings used for the selection of the Kenyan team to the 2024 World Aquatics Championships.

14. At paragraph 8 of the Respondents Replying Affidavit sworn by Collins Marigiri in response to this Application for Review, it is confirmed that it was indeed an express term of the 2024 World Aquatics Championships that the entry time would only be accepted if achieved at a World Aquatics approved qualification event within the period 1st October 2022 to 19th December 2023. This has been noted in the extensive quotation of paragraph 19 of the Summons quoted at paragraph 11 above of this decision.

15. The point of departure seems to be whether this was within the timelines allowable by the 1st Respondent as the various dates in play including the nomination dates are deemed to be the barrier to the consideration of the times achieved in Coimbra as at paragraph 15 of the said Affidavit of Collins Marigiri, it is indicated that it was too late in the day to qualify.

16. It is not the intention of the Tribunal to treat this application for review as an appeal and so in considering the facts in question, the Tribunal is not convinced that there was an error apparent in the decision that was rendered by the Tribunal on 11th December 2023. The dates that were in contention have not changed – and indeed it was the Appellant who had created the impression that his selection journey would have ended on 12th December 2023 if the Tribunal had not made a declaration in his favour. The full Summons from World Aquatics were before the Tribunal in the bundle of documents marked RM-1 that were attached to the Supporting Affidavit of the Appellant.

17. However, the supposed error apparent on the face of the record has been placed upon previous Counsel for the Appellant as per the last paragraph in paragraph 3. 2 of the Appellants Submissions in support of this application for Review. To our mind, the Application made previously by the Appellant was for the allowance by the Tribunal of any times that would have been clocked even after the 12th December 2023 deadline. This was the reason the Tribunal generally found that it would be an academic exercise to consider the what if times when they had not been attained. That would have been conjecture.

18. That notwithstanding, it is trite that mistakes of Counsel should not be visited on his or her client. There are however safeguards that exist for the opposing party where they are faced with situations of errors not of their own making and having to relitigate over the matters that were caused by their opponents in the matter. In Agumadu v. Agumadu (2022) 2 NWLR PT. 1813 AT 127 it was held that where there has been a failure of strategy or tactic on the part of Counsel, the litigant cannot escape such blunders committed by his Counsel because if the strategy had worked, both the Counsel and his client would have taken full credit.

19. If the strategy employed by Counsel was to emphasize on the date of 12th December 2023 for purposes of proving urgency and is then unsuccessful but then the new Counsel trains guns on the next date of 16th January 2024, that would be a strategic blunder that would not necessarily avail the Appellant the limb of error apparent on the face of the record.

20. Be that as it may, on the allowable limb for an Application for Review which is any other sufficient reason, this is a wide and elastic limb and the Tribunal has noted the submissions of the Appellant in respect of this limb.

21. Amongst the submissions made was whether there were good governance principles applied in the selection process; the fairness of this process; and whether there is perceived bias and favoritism in the decisions made by the Respondents.

22. In Dennis Opiyo Achiego v Kenya Basketball Federation SDT Petition E014 of 2023, the Sports Disputes Tribunal held as follows:Moreover, the KBFs status as a national sports umbrella organization registered under the Sports Act designates it as a public body. As such, it operates with public funds and serves a public function, making it subject to principles of transparency, accountability, and good governance.

23. The said national values and principles of governance are enshrined in Article 10(2) of the Kenyan Constitution that states as follows:The national values and principles of governance include:(a)patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;(b)human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized;(c)good governance, integrity, transparency and accountability; and(d)sustainable development.

24. In Swaleh Talib Abubakar v Stabilization Committee of the Kenyan Swimming Federation, E013 of 2023, this Tribunal alluded to the above principles by stating that the Sports Act makes certain presumptions of patriotic duties of national federations. It means that even when selecting athletes for international tournaments, the sense of patriotism should still be upheld amongst the other important values of good governance, integrity, transparency and accountability.

25. It is expected that access to the selection slots is inclusive and wide without having any discrimination. In sports like swimming, it is unfortunate that Kenya does not get as many slots as other countries due to reliance on the Universality Qualification. It is also unfortunate that certain sports are termed as non-core sports and may not benefit from full funding as expected by the Sports Act and through the Sports, Arts and Social Development Fund. It is for this reason that the Selection Report issued by the 1st Respondent indicates for instance, that athletes (or their parents/guardians) would confirm availability in writing not later than 27th November 2023 and would be advised on the sums for air travel, accommodation and other requirements. Such financial considerations may tend to have an impact on Selection or the actual attendance of the selected athletes but should not at any time be the reason why time would be reduced drastically or depart from properly set out Selection Criteria.

26. At paragraph 40 of the decision by the Tribunal issued on 11th December 2023, it was noted as follows:Whilst the notice given to the athletes may not have been ideal, it was nonetheless uniformly enforced across the athletes. It would have been unfair if the same was targeting the Appellant and we are not convinced that there has been demonstration of this.

27. The Appellant has attempted to demonstrate how the short notice issued for the National Trials to be held in November 2023 would have been unfair to him in particular in the sense that whilst the notice was uniformly applied to all the athletes, the athletes who had better timings had the slight advantage of even sitting out the Trials knowing that the onus was on the Appellant to better their previous times.

28. This disadvantage was brought to the attention of the Respondents who have justified the need to hold the National Trials on or about 3rd to 5th November 2023. In the Replying Affidavit sworn by the Third Respondent in Reply to this Application for Review, the Respondents have contended at paragraph 11 that it was pertinent to hold the time trials on 3rd to 5th November 2023 as the preliminary entry date for the World Aquatics Championships was 7th November 2023.

29. This does not however explain the fact that at the time of 7th November 2023, all that was required was confirmation of the entry by Kenya to the World Aquatic Championships. Indeed, no names needed to be forwarded at that time but just the numbers that the country intended to register. As reproduced above, the Preliminary Entry is for the purpose of confirming the participation of the World Aquatics Member and indicating to the OC the maximum number of competitors, representatives, coaches, official delegates, etc., which each Member intends to register in each discipline.

30. The prejudice to the Appellant is therefore not addressed by this decision to hold the National Trials in November and the decision of 11th December 2023 is not a carte blanche for the Federation to justify the actions. In essence, the Tribunal was taking a decision where they sympathized with both the Athlete and the Federation, and in particular the Federation, who have insisted their hands were tied.

31. Yet, when considered in totality, the Federation took the rope and tied its own hands because the timelines for entry confirmations and name confirmations were not the same. In considering this application for Review, the Tribunal has noted the sympathy expressed in another decision of Issa Abdalla v Ben Ekumbo & Kenya Swimming Federation 2016 eKLR which was Petition 37 of 2016 before this Tribunal where the Tribunal stated as follows at paragraphs 53 and 54 (ii).53. The Tribunal has sympathy for Mr. Abdalla and accepts that he will be disappointed; however, if we were to reverse the decision of the Federation, there would be another disappointed athlete…54(ii)The Federation shall prepare for discussion amongst its stakeholders and publish a document that provides for the Qualification System for all international events.

32. To the extent that there is still confusion, short notices and general misunderstanding of the various deadlines and timelines which end up with the 1st Respondent tying itself up in the time for actions, the sympathy of the Tribunal wears off. This is especially since the Olympic Games are around the corner and there is need for precision and proper exercise of discretion that does not leave any shred of doubt on whether there has been favoritism, bias or ring fencing of selected athletes. Worse still, there should be no disadvantage to one athlete or indeed a set of athletes by decisions taken by the Federations.

33. Merit in sport is paramount and Federations have a huge obligation to ensure that they make decisions that give weight to the upholding of merit in sport. The reason National Federations get exclusivity of Registration as National Federations in the country is because it is expected that there will be highest standards that are exhibited right from good governance including in decision making to fairness so as to ensure the country gets the best representation in the particular sport or competition by awarding those who perform best.

34. In the submissions made before the Tribunal by Counsel for the 1st Respondent, the following additional points were raised:(a)athletes should be ready for any competition;(b)the Appellant could not dictate when the Nationals Trials can be held;(c)the 1st Respondent had been banned by the time the 1st National Trials were held and it was only when constituted that they could embark on the 2nd National Trials to- give athletes an opportunity to take part and possibly better their times;(d)the Appellant did not beat the time of his competitors;

35. This however addressed the points that were considered at the first instance Appeal and not necessarily at Review Stage. The main focus is that there has been presented to the Tribunal new evidence that the Appellant has bettered the time that he had achieved earlier and increased his FINA Points. It is imperative that where it is not the mistake of the Athlete, the Tribunal upholds the tenet that National Federations should embrace sportsmanship.

36. It behooves the National Federations to craft decision for selection in a way that the best talent is recognized whilst taking note of the other preponderables such as the effluxion of time in the submission of the selected athletes to the competitions.

37. It is clear that the qualification for the 2024 World Aquatics Championships was not a fixed term event where only a few events were the allowable qualification events. The spirit of the Summons for the qualification of the Championships was dynamic with the eligibility period stretching one year and two months and in effect the athletes could keep improving their times.

38. Nothing stopped the athletes from improving their respective times with the deadline of 19th December 2023 available to all – despite the limitations that were placed by the Respondents on the time for submission of the Selected Athletes which we have deemed to be an issue of the 1st Respondent tying its own hands.

39. The Tribunal notes that despite the various disadvantages and limitations that were in place, the Appellant turned up for the National Trials in less than ideal conditions and also took all the possible means to better the times that he had posted. In effect, he utilized all the available qualification channels that he could muster including the 2023 Coimbra Swimming Open. There is no evidence placed before the Tribunal that the said 2023 Coimbra Swimming Open was not amongst the World Aquatics approved qualification events.

40. The 1st Respondent however seems reluctant to take the times that were attained at the 2023 Coimbra Swimming Open with the reasons cited being timelines that are placed in the Summons for the 2024 World Aquatics Championships.

41. Amongst the reasons placed as roadblocks is the reason that the deadline of 16th January 2024 does not allow the replacement of any athlete save for the reasons of injury or illness based on a medical certificate. That is the gravamen on paragraph 14 of the Affidavit of Collins Marigiri in response to the Appellants application for review. However, the Tribunal notes that the name of the Appellant had already been submitted to the said Championships as a reserve.

42. It was noted in the decision by the Tribunal issued on 11th December 2023 that those in the Reserve team were none travelling but would be given their place in the Team in the situation where either of the top two female athletes or the top two male athletes selected were not able to take up their slots and also subject to confirmation of the number of slots allocated to Kenya. In effect, being in the Reserves was not a guarantee of participation.

43. However, the only way the deadline of providing for Final Nominations (Entries by Name) by 12th December 2023 whilst allowing competing until 19th December 2023 and setting the Final Sport Entries by 16th January 2024 would logically dovetail into each other is consider all the various dates vis-à-vis the date that was set for the National Trials that were held between 3rd November 2023 and 5th November 2023.

44. The new and compelling evidence that has been brought to the attention of the Tribunal necessitates that the Tribunal distress the decision rendered on 11th December 2023. It is compelling because it may have an effect of changing the rankings of the swimmers registered for the event as at 12th December 2023 and in so doing may alter the positions of the athletes registered as reserves or those who have not been registered as reserves.

45. The neutrality of the National Federations and indeed the 1st Respondent and its officials in Selection matters is paramount and one that fosters sportsmanship and meritorious Selection. If the window of opportunity presents itself that the country may not be presenting its best athletes at an international event then the Tribunal cannot shut that window.

46. Whilst the Tribunal will not shut that window, it is also alive to the possibility that the window may be slammed shut by Event Organizers which is why the initial decision was hesitant by stating that it does not issue orders in vain. The Tribunal had nonetheless expressed its openness to exercising its discretion to where such a window was brought to its attention by submission of evidence from any other open World Aquatics sanctioned qualification events within the period October 1, 2022, to December 19, 2023.

47. It is not however upon the Respondents to close this window noting in particular their necessity to uphold the national values and principles of governance including inclusiveness, equality, non-discrimination, patriotism, fairness and neutrality in the face of such limited resources and slots.

48. In the circumstances, the Tribunal makes directions as follows:(a)The application for the Review of the decision rendered on 11th December 2023 by the Tribunal is allowed.(b)The 1st, 2nd and 3rd Respondents are directed to consider the time attained by the Appellant during the 2023 Coimbra Swimming Open in Portugal in making the Final Sport Entries to be submitted through the Aqua GMS by 16 January 2024, 23:59 GMT. The natural consequence of this order is that the Applicant garners points that make him an automatic qualifier.(c)The 1st, 2nd and 3rd Respondents are directed to file a Report with the Tribunal on 18th January 2024 on the compliance with the directions of the Tribunal. Such Report to include steps taken with World Aquatics and any correspondence between the 1st Respondent, the Appellant and World Aquatics.(d)This matter to be mentioned on 23rd January 2024 to confirm that the directions of the Tribunal to the have been complied with and for orders as to costs.

DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF JANUARY, 2024. SIGNED:ELYNAH SIFUNA-SHIVEKA (MRS)MEMBER PANEL CHAIRPERSON............................ALLAN OWINYIMEMBER.................................BENARD WAFULA MURUNGAMEMBER