[2018] KESDT 13 (KLR)

REPUBLIC OF KENYA

THE JUDICIARY

OFFICE OF THE SPORTS DISPUTES TRIBUNAL

APPEAL NO. 2 OF 2018

SAMMY ALEGO..............................................................1ST APPELLANT

LEAH NJOGU....................................................................2ND APPELLANT

HOLLIS OCHIENG’ MKANGA......................................3RD APPELLANT

-versus-

ANTHONY KARIUKI.....................................................1ST RESPONDENT

KENYA AMATEUR WRESTLING ASSOCIATION..2ND RESPONDENT

(SUED THROUGH ITS TREASURER ANTHONY KARIUKI)

DECISION

Hearing: 8th March, 2018

Panel: John M Ohaga Chairperson

Elynah Shiveka Vice Chairperson

Mary Kimani Member

Appearances:Messrs Lawrence Terer Kipyegon and Elvis Majani as instructed by Wambilianga, Majani & Associates Advocates for the Appellants

Ms. Nancy Mwangi as instructed by S.M. Muhia & Company Advocates for the 1st and 2nd Respondents

The Parties

1. The 1st, 2nd and 3rd Appellants, are wrestlers whose intention is to represent Kenya at the forthcoming 2018 Commonwealth Games in Gold Coast, Australia.

2. The 2nd Respondent is a National Sports Organization responsible for the sport of Wrestling in Kenya.

3. The 1st Respondent is the Treasurer of the 2nd Respondent.

Background

4. The proceedings have been commenced by way of a Notice of Appeal filed on 6th March, 2018 under Certificate of Urgency.

5. The Appellants challenge the selection by the 2nd Respondent for the team representing Kenya at the Commonwealth Games in Gold Coast, Australia. It is their contention that the selection criteria was opaque and arbitrary and not based on merit resulting in discriminating and maliciously omitting the appellants from the team thus denying them an opportunity to put themselves up for consideration.

Preliminaries

6. Upon reading the Certificate of Urgency, the Notice of Motion dated 6th March, 2018, the Supporting Affidavit sworn by Hollis Ochieng’ Mkanga on 6th March, 2018 and Notice of Appeal dated 6th March, 2018 and having given consideration to the brief submissions of Mr. Majani, Counsel for the Appellants the matter was duly certified as urgent by the tribunal.

7. The tribunal further directed the Appellants ensure service of the Certificate of Urgency, the Notice of Motion, the Supporting Affidavit of Hollis Ochieng’ Mkanga and the Notice of Appeal in this matter on the respondents and interested parties by close of business on 7th March, 2018.

8. The matter was scheduled for hearing on Thursday 8th March, 2018 at 4. 00pm.

Appellants Submissions

9. Mr. Lawrence Kipyegon, Counsel for the Appellants, contended that the selection of wrestlers to represent the country in the Commonwealth games was discriminatory and not transparent since the communication did not reach the Appellants on the same.

10. He stated that the Appellants had no contention with the Athletes selected to participate in the trial, but in the mode of selection. It was their assertion that the Appellants are the best wrestlers currently in the country and deserve to be given the opportunity showcase the same at the forthcoming Commonwealth Games.

11. The Appellants argued that the same was discriminatory, as they had firstly, selectively communicated the trials and secondly, opted to use the Nigeria Youth/Cadet/Senior/African as the trials, which would not be accessible for all.

12. The Appellants pleaded that they were never invited to travel to Nigeria yet the respondents knew that, the tournament was to act as trials for the Kenyan wrestlers to the forthcoming Commonwealth Games. He stated that fifteen (15) individuals were selected to attend the tournament in Nigeria but the criteria for selecting the fifteen (15) is yet to be disclosed.

13. Counsel further stated that the Appellants have not been informed why they had not been notified of the trials.

14. The Appellants posited that there was no disclosure of the selection process by the respondents from the outset.

15. They submitted that the selection criteria was not verifiable and asked for fresh trials to grant equal opportunity for the best team to be selected.

16. The Appellants indicated that it was not too late for the best team to represent the country in the forthcoming Commonwealth Games by holding fresh trials as there was still adequate time to organize and execute such. He stated that this would only take one (1) day as a round of wrestling lasts about six (6) minutes only.

17. The 1st and 2nd Appellant submitted that they were locked out because of their weight. The 1st Appellant explained that their weight fluctuates within the bracket and is not constant throughout. The 2nd Appellant explained that she is currently 79kg, and that the required weight is 76kg, which is easily achievable.

18. Mr. Kipyegon further explained that the 1st Appellant is in the same weight bracket as the individual who has been selected to represent Kenya.

19. The Appellants invited the Tribunal to make the following orders:

i) Quash the purported decision by the respondents to select a Kenyan team to the Commonwealth games in Queensland, Australia

ii) Direct the respondents to conduct fresh team trials for the purpose of selecting a team to represent Kenya at the commonwealth games.

iii) The costs of the appeal to be provided for.

Respondent’s Submissions

20. Ms. Mwangi opposed the application stating that it lacked merit and that communication regarding selection and criteria was sent to all clubs through the national head coach Mr. Eric Walucho.

21. She submitted that the Respondents had sent 15 wrestlers to Nigeria to participate in the Youth/Senior Africa championships which they used as trials for the forthcoming Commonwealth Games.

22. She stated that prior to this, the Appellants have participated in other games and stated that the 2nd Respondent chose a different category, the Freestyle category (as opposed to the Greco Roman category) to allow other wrestlers to participate, all in the interest of diversity and promotion of upcoming wrestlers.

23. She stated that the third appellant had pending disciplinary issues at the time of the Congo All Africa Games due to his participation in other sports, without informing the 2nd Respondents of the same.

24. She argued that the decision by the 2nd Respondent was in the best interest of the sport, and that to conduct fresh trials would mean to revoke the qualification of the selectees, which means that Kenya would miss out, because the style of wrestling they subscribe to is not a category Kenya will participate in this year.

25. She submitted that the Tribunal has no jurisdiction, owing to Article 29 of the Constitution of the Association, which provides for Mediation and Arbitration as the avenues for resolving disputes, both of which were not invoked.

26. It was their assertion that the Appellants have previously represented Kenya in various international events and that they should give others a chance to do so.

Jurisdiction

27. The Sports Act, 2013 clearly outlines the jurisdiction of the Tribunal to include hearing and determination of this dispute where it states in Section 58 (a) 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

Discussion

28. Having considered the submissions of the Parties and the decision of the Association relating to the issue of selection, we observe as follows.

29. The Tribunal, in deliberating the submissions put forth for the different Appellants, decided that each Appellant’s case was different, and an umbrella decision would not suffice. The Tribunal therefore found the following to be the issues for determination:

i.) Whether the appeal by the 1st Appellant has merit

The Appellant, being in the same weight bracket, and from the same category that the Association has selected, it is the Tribunal’s finding that his exclusion was wrong.

ii.) Whether the appeal by the 2nd Appellant has merit

Similarly, the 2nd Appellant, having exceeded the weight bracket by 3kg, was wrongfully excluded as she can lose the weight in order to fit in the bracket.

iii.) Whether the appeal by the 3rd Appellant has merit

The Tribunal observes that it is well within the discretion of the Association to decide which category the Association will participate in. This is not discriminatory.

The 3rd Appellant’s weight being 125kg, is not eligible to participate at the Commonwealth Games, as the Kenyan Team will participate in the freestyle category, for the weight bracket ending at 89kg.

Decision

30. The Sports Act has introduced a new era of transparency, accountability and good governance in the management of sports organizations and sporting facilities for the benefit of the sportsman. Unfortunately, many sports organizations have not woken up to this reality.

31. Whilst the Tribunal is alive to the difficulties that Sports organizations face when the number of places available to send players to international events are reduced, this does not change the principal which requires the criteria be followed unless there are extraordinary circumstances which militate against strict adherence to the criteria. The purpose of criteria is to enable both players and Associations to have an objective and verifiable basis upon which selection decisions are made. To ensure that the selection is fair on the parties the Tribunal is forced to set aside the selection of the players to the Commonwealth Games.

32. The Tribunal hereby orders the 2nd Respondent to come up with transparent and verifiable trials program, which will be placed before the Tribunal on Tuesday 13th March 2018. The program should have a timetable which must be finalized by latest, Monday 19th March 2018. The final team list should be presented to the Tribunal by Tuesday 20th March 2018.

33. The Tribunal directs that each party shall bear its own costs. The matter shall be mentioned on Tuesday 13th March 2018 for further directions.

Dated and delivered at Nairobi this 9thday of March, 2018.

Signed:

John M Ohaga

Chairperson, Sports Disputes Tribunal

In the presence of:

1. Elynah Sifuna

2. Maria Kimani