[2024] KESDT 367 (KLR)

Super Swim League Limited v Nairobi County Aquatics Association (Sued Through the Chairperson) & 2 others (Appeal E042 of 2023) [2024] KESDT 367 (KLR) (16 April 2024) (Decision)

Neutral citation: [2024] KESDT 367 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Appeal E042 of 2023

E. G. Kiplagat, Chair, M Kimani & Gabriel Ouko, Members

April 16, 2024

Between

Super Swim League Limited

Claimant

and

Nairobi County Aquatics Association (Sued Through the Chairperson)

1st Respondent

Andrew Nderu

2nd Respondent

Kenya Aquatics (Also Known as Kenya Swimming Federation)

3rd Respondent

Decision

The Parties 1. The Claimant describes itself as a limited liability company duly registered under the Companies Act and equally registered under the Sports Act as a National Sports Organization.

2. The 1st Respondent is a creature of the law established as such under section 46 of the Sports Act.

3. The 2nd Respondent is described as the Competitions Secretary of the 2nd Respondent.

4. The 3rd Respondent is a national sports federation responsible for swimming in Kenya.

The Case 5. The case has been commenced by way of a statement of claim dated on 19/10/2023 and amended on 27/10/23. The Claimant, Super Swim League Limited (SSL) also filed a motion dated 8/11/2023 under certificate of urgency. The Claimant also filed a further replying affidavit dated 15/02/2024.

6. SSL aver that they run a registered swimming association and swimmers who participate in the swimming meets organized by SSL rely on their timing results in order to enter into tournaments and get placement in the heats that best suit their current capabilities.

7. SSL claim that on various dates that is 3rd June,9th September and 30th September 2023 it conducted competitions under SSL results of which were recorded and an individual meet entries report of its participants prepared and furnished to the 1st Respondent for recording of the times achieved in the SSL events.

8. SSL further claim that it provided the 3rd Respondent with an individual meet report on 27/10/2023 which report included qualifying times of swimmers from Poseidon, Braeburn and Otters Clubs, its members for purposes of recognition and assigning them appropriate heats for the KA National Times scheduled on the 4th to 5th November 2023 at the MISC Aquatic Centre in Kasarani.

9. SSL claim that the 3rd Respondent to the contrary provided a psych sheet that placed swimmers in various heats but the Claimant’s times were not considered hence the dispute before this Tribunal.

10. The Claimant’s prayers are summarized as below:a.An order directing the Respondents to admit and rely on the best times provided by the Claimant.b.An Order compelling the 1st and 3rd Respondents to officially acknowledge and recognize SSL and grant it affiliation.c.An Order compelling the 1st and 3rd Respondents to duly recognize and record the times achieved by the Claimant’s swimmers in the SSL events whenever such information is provided to them.d.An order that Respondents to include the entries from the Claimant’s members provided on 15th ,17th and 27th October,2023. e.An order to include two additional officials from the 1st Respondent to help with events and assist with the times achieved.f.Costs and interest of the suit.

The 1st & 2nd Respondents’ Response 11. The 1st and 2nd Respondents filed a replying affidavit dated 29/01/2024. They state that the Claimant is a parallel national sporting organization without affiliation to either the 1st Respondent or 3rd Respondent to manage the swimming sport within Nairobi County.

12. They further noted that the claims on timings are held on individual events are false as the 1st Respondent is a County Swimming Sports Association who members comprise of schools, clubs and colleges and are affiliated to the 3rd Respondent but neither did the Claimant seek sanctioning from the 1st Respondent and or paid the requisite sanctioning fee.

13. The Respondents also state that it is legally untenable that the Claimant a National Sporting Organization is eligible for membership in a County Sports Organization neither is the 1st Respondent affiliated to it.

14. The two Respondents further allege that the Claimant want to create a parallel national sports organization and bring confusion obtained registration from the office of the Sports Registrar of Sports through deceit and false representation contrary to section 46 of the Sports Act as the 1st Respondent had been registered as such first in time.

15. They further contend that Otters Swim Club and Braeburn Swimming Club are members of the 1st Respondent whose athletes compete in County galas and post better scores than those annexed to the Application by the Claimant.

16. They also state that there is an internal mechanism to resolve the dispute yet the claimant prematurely invoked the jurisdiction of the Tribunal. The 1st and 2nd Respondents pray that the suit be dismissed in its with costs.

Hearing 17. The matter was heard on 21/02/2024 and parties were ordered to file written submissions. The 3rd Respondent did not participate in these proceedings and did not file and response too. The Claimant filed written submissions dated 27/02/2024 while the 1st and 2nd Respondents did not file written submissions and proceeded to fully rely on their response.

Discussion 18. Having taken into account the parties’ pleadings and written submissions by the Claimant, the Tribunal states as follows:

19. The jurisdiction of this Tribunal stems from Section 58 of the Sports Act which provides 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; and(c)appeals from decisions of the Registrar under this Act.”

20. Section 59 of the Sports Act states further that:“The Tribunal may, in determining disputes apply alternative dispute resolution methods for sports disputes and provide expertise and assistance regarding alternative dispute resolution to the parties to a dispute.”

21. The parties save the 3rd Respondent who opted not to participate in these proceedings have by their owned conduct invoked the jurisdiction of this Tribunal. The Sports Act provides in section 46 (1) and (2) that a body shall not operate as a sports organization unless it is registered under this Act. The Registrar shall register sports organizations as either a sports club, a county sports association or a national sports organization. A national sports organization shall specify a national and international affiliation if any for the Sports Registrar to register the organization as per the requirements of section 46 (3) of the Sports Act. A national sports organization is defined under section (2) of the Sports Act to include an umbrella body responsible for Olympic, non-Olympic, Paralympic or Deaflympic sports or multi-sport organization responsible for all sports disciplines or recreational bodies or body responsible for a particular sport nationally.

22. Our keen reading of these legislative texts reveal that a sports organization can either be a sports club, a county sports association or a national sports organization. The Claimant is registered as a national sports organization while the 1st Respondent is registered as a county sports organization. Secondly, a national sports organization can only be affiliated to a national and international organization.

23. We are faced with a question where the Claimant prays that this Tribunal compels the 1st and 3rd Respondents to affiliate the Claimant as well as order the Respondents to include the entries and times from the Claimant’s members. This is not a situation contemplated under the law as seen from the legal provisions above as the 1st Respondent is a county sports organization and the 3rd Respondent is not an umbrella national sports organization and the Claimant cannot legally be affiliated to either or both. We fully agree with the sentiments of the Claimant on this. The net effect then here is such that the entries and times from the Claimant’s members cannot also be included in the final tallies of any meet organized by the Respondents or the Claimant.

24. The sporting arena in Kenya should not be conducted in a laissez faire manner where rules and laws do not apply as this will be a recipe for anarchy. Indeed, the Claimant is inviting us down this path and we decline the invite. We have to resist anything that will clamp down on the gains made so far in terms of sports governance and sports management and administration in the country. This claim is therefore a non-starter and manifestly clothed in illegalities.

Conclusion 25. It is therefore in consideration of this, as well as the Claimant’s written submissions that the Tribunal makes the following orders:a.The statement of claim dated 19/10/2023 as amended on 27/10/23 and the motion dated 8/11/2023 be and are hereby dismissed;b.Each party shall bear its own costs.

DATED AT NAIROBI THIS 16TH DAY OF APRIL, 2024GICHURU KIPLAGAT.................PANEL CHAIRPERSONMARIA KIMANI...........................MEMBERGABRIEL OUKO........................... MEMBER