[2024] KESDT 816 (KLR)

Waweru v Nyaberi & another; National Olympics Committee of Kenya (Interested Party) (Tribunal Case E016 of 2024) [2024] KESDT 816 (KLR) (21 June 2024) (Ruling)

Neutral citation: [2024] KESDT 816 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Tribunal Case E016 of 2024

A.M Owinyi, Chair, Gabriel Ouko & Benard Murunga Wafula, Members

June 21, 2024

Between

Lilian Mududa Waweru

Claimant

and

Charles Nyaberi

1st Respondent

Kenya Volleyball Federeration

2nd Respondent

and

National Olympics Committee of Kenya

Interested Party

Ruling

Appearances:Tollo instructed by Omulele & Tollo Advocates for the Claimant; Ms. Chepchumba instructed by KKAO Advocates Advocates LLP for the 1st and 2nd Respondents. Parties: 1. The Claimant is the duly elected and serving Hon. Vice President – Gender of Minority of the Kenya Volleyball Federation.

2. The 1st Respondent is the duly elected and serving President of the Kenya Volleyball Federation.

3. The 2nd Respondent is a duly registered National Sports Organisation in charge of the administration and running of the affairs and activities of the sport of volleyball in the Republic of Kenya.

4. The Interested party is the National Olympics Committee which oversees the representation of Kenya at the Olympics and other major international sporting events

Background 5. The Claimant approached the Tribunal on or about 20th May 2024 through a Certificate of Urgency seeking orders for the hearing of the matter under urgency and in addition seeking prayers as follows:a.A conservatory order staying the decision of the 2nd Respondent appointing the 1st Respondent as Team Manager for Malkia Strikers, the Kenya Volleyball Women's Team for the 2024 Paris Olympic Games;b.A conservatory order restraining the Interested Party from accepting, approving and/or facilitating the 1st Respondent as the Team Manager for Malkia Strikers, the Kenya Volleyball Women's Team for the 2024 Paris Olympic Games;c.Nullification, revocation and cancellation of the 1st Respondent's appointment by the 2nd Respondent as the Team Manager for Malkia Strikers, the Kenya Volleyball Women's Team for the 2024 Paris Olympic Games;.d.Reinstatement and approval of the Claimant's appointment by the 2nd Respondent as the Team Manager for Malkia Strikers, the Kenya Volleyball Women's Team for the 2024 Paris Olympic Games by the 2nd Respondent;e.An order compelling the Interested Party to facilitate all necessary arrangements for the Claimant and for other connected purposes as the Team Manager for Malkia Strikers, the Kenya Volleyball Women's Team for the 2024 Paris Olympic Games.f.Costs of this claim.

6. The Hon. the Chair of the Tribunal issued orders on 20th May 2024 to the effect that pending hearing and determination of the application by the Claimant, a conservatory order of injunction was issued staying the communication and decision of the 2nd Respondent to the Interested Party replacing the Claimant as the Team Manager for the Malkia Strikers for the 2024 Paris Olympics Games pending the hearing and determination of this application.

7. In addition, the Hon. the Chair of the Tribunal gave directions on 28th May 2024 that the Claim be served upon the Respondents and that they be given time to file their appropriate responses.

8. Consequently, the matter was mentioned before the Tribunal on 11th June 2024 to confirm if the parties had complied with service of claim and response. In addition, the readiness for a viva voce hearing was assessed.

9. The matter being of urgency, hearing was set for 12th June 2024 when the hearing took place starting with Counsel for the parties being allowed to make Opening Statements.

10. Affidavit Evidence was presented before the Tribunal and viva voce evidence was also allowed and adduced. Upon the confirmation of the parties that they would not file written submissions but would rely on the filed pleadings and evidence for purposes of the decision, this matter was set for Judgment on Notice.

Claimant’s Case 11. The Claimant stated that on 25th November 2023, the 2nd Respondent held a National Executive Committee meeting (''NEC Meeting") and deliberated on inter alia the preparations of Malkia Strikers for the 2024 Paris Olympic Games.

12. As part of the preparations, it was necessary to select and appoint the Team Manager for the Malkia Strikes. The Claimant expressed her interest as did John Oronje, the 1st Respondent and Chege Ismail. In balloting that took place, the Claimant emerged as the selected Team Manager whilst John Oronje, the 1st Respondent and Chege Ismail were placed positions two, three and four respectively.

13. The National Executive Committee therefore duly declared the Claimant as the appointed Team Manager for Malkia Strikers for the 2024 Paris Olympic Games and the Claimant's appointment was confirmed in a letter dated 27th February 2024 by the 2nd Respondent to the Interested Party.

14. Consequently, the Claimant was invited for a Team Managers' Training by the Secretary General of the Interested Party vide a letter dated 19th March 2024 in her capacity as the Team Manager for Malkia Strikers for the 2024 Paris Olympic Games. The Training was scheduled for 3rd April 2024 and the Claimant successfully attended the Training.

15. The Claimant was subsequently involved in several preparation activities for the games including attending several occasions in her capacity as the Team Manager for Malkia Strikers for the 2024 Paris Olympic Games including the "100 Days Countdown to Paris 2024 Olympic Games" hosted by East Africa Breweries Limited (Tusker) on 12th April 2024 at EABL Microbrewery in Ruaraka and the "100 Days Countdown Event" by the Interested Party that took place on 17th April 2024 at the Uhuru Park.

16. On 11th April 2024, the Secretary General of the 2nd Respondent issued a two-days' notice in the WhatsApp Group for the 2nd Respondent's National Executive Committee (NEC) for an emergency meeting to be held on 13th April 2024 at Riadha House; this meeting was rescheduled to 14th April 2024 wherein new voting took place for the appointment of the Team Manager. We have also referred to this meeting as ‘the April’ meeting in this decision.

17. The Claimant questioned the manner in which the meeting was organized and sent a letter on 16th April 2024. She did not get a response. However, another meeting was organized for the 12th May 2024 (also referred to in this Decision as the ‘May meeting’) with an agenda of a simulacrum nature to that of the 14th April 2024 where the Claimant's name was replaced by the 1st Respondent as the Team Manager for Malkia Strikers for the 2024 Paris Olympic Games.

18. The Claimant asserts that she is merited and suited for the Team Manager's role for Malkia Strikers in light of her professionalism, impressive record of participation, qualification background in volleyball and qualifications in the world of sports and further enjoys a warm and close connection with the entire women's team. She also stated that she understood the role of a Team Manager including co-ordination of the Team activities, uniforms, ticketing, group photo arrangements amongst other roles.

19. The Claimant further averred that she had neither been informed by the 1st Respondent nor the 2nd Respondent of the reason for her replacement. To the best of her knowledge, such reasons did not exist at all. She insists that her replacement by the 1st Respondent as the Team Manager for Malkia Strikers for the 2024 Paris Olympic Games is unfair to the team, to her and unlawful.

20. The Claimant further averred that she had neither been informed by the 1st Respondent nor the 2nd Respondent of the reason for her replacement. To the best of her knowledge, such reasons did not exist at all. She insists that her replacement by the 1st Respondent as the Team Manager for Malkia Strikers for the 2024 Paris Olympic Games is unfair to the team, to her and unlawful.

21. The Claimant also noted that the 2nd Respondent was in violation of the orders of the Tribunal having decided to appoint another Team Manager for the pre Olympics tournaments that were part of the Olympic preparations.

Respondents Case 22. The 1st and the 2nd Respondents responded vide a Replying Affidavit erroneously dated as 11th July 2023 and sworn by Ismail Chege, who is the duly elected and serving Secretary General of the 2nd Respondent.

23. The Respondents averred that the 2nd Respondent is responsible for the submission of names and details of athletes and athletes’ support personnel to the national government of Kenya, it is the sole responsibility of the 2nd Respondent to select athletes, appoint officials and enter teams entering into the Olympics and Commonwealth Games.

24. That there was a National Executive Committee meeting held by the members in November 2023 where the position of Team Manager and seven other positions were filled. The Respondent avers that this was but a wishlist and its size based on the 2021 Tokyo Olympics where the Federation submitted a team of 12 officials including 6 nationals of Brazil.

25. The Respondents insisted that the tentative list was not final but a mere expression of wishes. In addition, the 2nd Respondents witness stated on oath that the letter sent to the Interested Party with the Claimant’s name as team Manager was ‘barua ya kushikilia’ to mean, a tentative letter.

26. Subsequently, a notice was issued on 5th May 2024 and on the 12th May, 2024 the NEC meeting was held. The meeting had a quorum since 14 out of 15 members were present. The Respondents averred that therefore the subsequent selection of the Team Manager made during this meeting was valid.

27. The Respondents stated that the number of delegates was contingent on the slots available as provided for by the Interested Party. This clarified that the selection made during the April meeting was also on an interim basis.

28. In any event, the Respondent asserted that the Claimant did not protest the notice issued on 5th May, 2024 much as she had protested the 14th April, 2024 meeting. her appointment on 12th April as a chaperone was also deemed as interim basis for which could change. The April meeting had been overtaken by events and its decisions could no longer hold.

29. The 2nd Respondent acknowledged that the Claimant prepared the budgetary allocations for the Olympic team. However, they also stated that the budget is prepared by a panel and authenticated by the 1st respondent.

30. Whilst the 2nd Respondents further denied that the April meeting was irregular, the 1st Respondent was of a different view in his oral remarks in evidence.

31. The two Respondents however both stated that the voting process of 12th May 2024 was not challenged and therefore its outcome should stand. They said that like all federations, the NEC should have the right to appoint, vary or cancel the appointment of officials

32. The Respondents averred that the claimant’s replacement also had astounding qualities and that the claimant should not allege she is the most suitable candidate.

33. The Respondents further stated that the election process was beyond reproach and that the Federation members have never been involved in any irregularity. Thus, the Respondents termed the claim as malicious.

34. The Respondents further stated that the competitions that were taking place before the Olympics were not qualifying as Olympic preparations and thus they were not in violation of the orders issued by the Hon. the Chair of the Tribunal on 20th May 2024 when they appointed other Team Officials including another Team Manager.

Issues 35. Whereas the parties did not jointly agree on and identify the specific issues for determination by the Tribunal, the Tribunal has nonetheless taken the liberty to frame four main issues for determination after discerning the Claim, the response and the oral submissions filed or presented before it. The issues are listed as follows:i.Whether the Tribunal has Jurisdiction to hear this matter as presently framed or otherwise;ii.Whether the 2nd Respondent has criterion for the selection and/or the appointment of the technical team and whether that criterion breached the legitimate expectation of the Claimant to be confirmed as Team Manager;iii.Whether the first and second Respondents actions were inconsistent with the exercise of the Fair Administrative Action Act;iv.Whether the orders of the Tribunal had been violated.

Consideration of Issues i. Whether the Tribunal has Jurisdiction to hear this matter as presently framed or otherwise; 36. The Sports Dispute Tribunal is a subordinate court established by Section 55 (1) of the Sports Act, 2013 in furtherance of Article 169 of the Constitution of Kenya 2010 which under Article 169 (1)(d) defines subordinate courts to include:Any other court or local tribunal as may be established by an Act of Parliament …

37. In essence, the Tribunal is a specialized tribunal with members having not only the qualifications in the legal field but also experience and knowledge of the subject matter of sports and consequently exercising those judicial powers flowing from both the people’s constitutional power and legislative authority.

38. According to the dictum in Owners of Motor Vessel Lilian “S” v Caltex Oil [1989] KLR , jurisdiction provides a judicial body such as this Tribunal with the basis upon which its authority can be couched and enforced. Therefore, it is important that the Tribunal dispenses with jurisdiction as a matter of priority.

39. The jurisdiction of the Tribunal is derived 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.[Emphasis Added]

40. The Tribunal has been invited vide a Statement of Claim to make a determination on the question of appointment of the Team Manager for the team representing Kenyan women’s volleyball team at the 2024 Paris Olympics. Notably, the Claimant has couched her issues around being unfairly and unlawfully terminated in her appointment which subsequently amounts to a breach of constitutional rights on human dignity and fair administrative action.

41. Whilst termination seems to connote some form of employment or service that has been discontinued, the Tribunal has perused the pleadings and noted that the same revolves around what is termed as an appointment to the position of Team Manager.

42. The 2nd Respondent is allowed under its Constitution and in particular Article 1. 8 (16) to appoint, hire, employ, remove, replace or reinstate secretaries, managers, servants, employees and other persons in and for carrying out of the objects of the Federation and to pay them in return for services rendered to the 17 (sic) Federation, salaries, wages and gratuities, as appropriate.

43. It is clear that the claim made by the Claimant is not under this heading. The Tribunal however also notes that the National Executive Committee has powers under Article 4. 2.4 (17) which is probably misnumbered as it is the 13th power under 4. 2.4 and it states that:The National Executive Committee of the Federation… shall have the following powers:17. To appoint coaches and officials for the national teams and to ensure that the player selection is meritorious and timely.

44. The Claim is clearly within the ambit of the appointment and selection of the Claimant as a Team Manager which position falls within the officials of the national team.

45. Consequently, the Tribunal takes liberty to exercise its inherent powers and lend its competence to the parties in deciphering the real issue before it. In Automobile Association of Kenya v James Jaguga [2005] eKLR the court provided as follows:In the case of Odd Jobs –vs- Mubia [1970] EA 476 the Court of Appeal for East Africa held that a court may base its decision on an unpleaded issue, if it appears from the course followed at the trial that the issue has been left to the court for decision. That decision was followed by the Court of Appeal in the case of Vyas Industries –vs- Diocese of Meru [1982] KLR 114 in which the Court of Appeal cited with approval the decision in the case of Odd Jobs –vs- Mubia [1970] EA 476 in the following terms –“The circumstances in which an unpleaded issue can become an issue in a suit is a question which was considered in Odd Jobs –vs- Mubia [1970] EA 476 in which it was held that:a)a court may base its decision on an unpleaded issue if it appears from the cause followed at the trial that the issue had been left to the court for decision.b)On the facts the issue had been left for decision by the court as the advocate for the appellant led evidence and addressed the court on it.”

46. The upshot of the foregoing is that while the Claimant has encapsulated her claim as unfair termination and violation of her rights, the Tribunal considers the substance is appointment or selection. The overriding fact being the alleged position she had been terminated from is not a substantive employment.

47. Consequently, any potential violation of constitutional rights and administrative injustice is sequential from the contested decision, notwithstanding the position either being an employment or selection.

48. The Sports Act, 2013 takes the decisions on Selection Disputes as a very special and elevated decision as it is often time bound. Indeed, the Sports Disputes Tribunal Rules 2022 in the heading Decisions on Selection or Non-Selection states as follows:If the appellant succeeds on an appeal against selection or non-selection of a national squad, the tribunal may-a.refer the question of selection back to the National Sports Organization for determination.b.allow the appeal and conclusively determine the issue of selection of the appellant if –i.it would be impracticable to refer the matter back to the national sports organization within the time in which entries to the relevant event or competition are to be submitted; orii.there has been disregard of the selection criteria by or on behalf of national sports organization or that it would be unlikely that the selection criteria will be properly followed or implemented

49. Selection to represent a country is a highly prized accolade for anybody whether an athlete or on the technical bench as a team official. Indeed, noting the affiliation of Malkia Strikers with Brazil coaches as noted above, even the Brazil Men’s National Football Team is popularly known as the Seleção to mean Selection in Portuguese as the ones who make it to the finest and best selected in the assembled team. It is the same reason that being selected to represent the country in Kenya is a coveted position whether at the athlete or official level. Indeed, the Selection even earns with it a flag that is ceremonially presented to demonstrate that they are representing the country. Whilst it may be a personal accolade in terms of achievement, the glory belongs to the country as a whole.

50. Whereas the Respondent has characterized the Selection and Appointment of the Team Manager as an Election, the process of appointment of the athletes and the officials is often the same as they generally constitute the Team.

51. Thus, and in cognizance of the role as contingent on the management of the Kenyan women volleyball team for the Olympics, the conclusive position is that the Claimant is protesting cancelling of her selection as the Team Manager. In this case, the Tribunal has Jurisdiction to interrogate this Selection as it has done in the past in other Selections termed as appointments of the Team Officials.ii)Whether the 2nd Respondent has a valid criteria for the selection and/or the appointment of the technical team and whether that criterion breached the legitimate expectation of the Claimant to be confirmed as Team Manager;

52. Undoubtedly, the Olympics present a grand opportunity for athletes and their management to showcase their dedication and efforts throughout a four year cycle. Hence, the Tribunal as stated above is aware of the pride and prestige that a stellar performance in this competition brings to a country.

53. The Sports Act under Schedule 2 on the matters that are to be provided for in the constitutions of Sports Organizations at paragraph (h) is clear that amongst those matters is:That the selection of the Kenyan team and the technical personnel shall be done in good time and transparently using fair criteria.

54. The Tribunal, has noted that the Constitution of the Kenya Volleyball Federation does not have any detailed Selection Criteria as required by Schedule 2 (f) quoted in extenso above.

55. The evidence given by the 2nd Respondents witness who had also sworn the Replying Affidavit, there was no clear demonstration to the Tribunal in written documents of what was understood to be the role of each of the Team Officials. It was also not clear what qualification criteria was given to each Team Official to be considered for the positions that were being filled.

56. What was apparent was that the process of appointing or selecting or electing the Team Officials started way back before November 2023 which at least conforms to the laid out principle that the appointment and selection shall be done in good time.

57. It would be expected that with the Constitution of the 2nd Respondent giving them powers under Article 6. 4 to enact By Laws would be an appropriate way in which a clear Selection Criteria is set out.

58. What was presented as evidence to the Tribunal is a process of Wish Lists and Long Lists and culling of Long Lists without a shred of the professional considerations that are necessary for the positions that were being considered to be filled. For this reason, the Tribunal does not intend to hide its dismay at the manner in which the Kenya Volleyball Federation has opted to select its Team Manager. Specifically, the Tribunal raises questions as to why a technical team ought to be appointed through a popular process.

59. We do not think that a democratic exercise where the National Executive Committee members vote is the ideal formula to appoint the most suitable candidate to serve in a Technical Position that has clearly defined roles that should attract some set qualifications.

60. In the current FIVB Event Regulations that contains General Regulations for International Competitions, some of the provisions that touch on the role of a Team Manager include:4. 5.1The official Team Delegation is comprised of twelve (12) to fourteen (14) players and six (6) Team Officials. The following Team Official roles must be fulfilled:a)Team Manager,b)Head Coach,c)One (1) Doctor (FIVB accredited) or one (1) Physiotherapist (FIVB accredited)4. 6.7The Head Coach of a team can change the Libero(s) between each match. The Team Manager/Head Coach must inform the Technical Delegate no later than one (1) hour before a match if a Team wishes to change the Libero(s) from that selected for the previous match.6. 1.1Health Certificate:… Before each match, the team manager must proceed to the Jury table with the identification papers of the players.48. 5.4The Team Manager verifies the names of the players and officials listed on O-2bis Form correcting spellings and data. No substitution of players will be allowed; officials may be different ones or replaced. The Team Manager or Coach must sign the O-2bis Form to confirm the final list of players and officials.

61. The sampling of the role of the Team Manager would be expected to be captured in a clear document that detail the role and the proximity to the Team. Consistently, the Tribunal has in the past stated that there should be a Selection Criteria that is clearly set out. This clear and transparent criterion is what should be followed by Federations when selecting members of a team or squad.

62. In ensuring that the meritorious criteria is met, the Ministry of Sports had issued certain guidelines that were to inform the selection of Team Officials especially for Ladies Teams. A copy of this Circular was produced in Evidence as Exhibit LMW11 under the Affidavit of the Claimant sworn on 20th May 2024. In the Statement dated 8th July 2021, the Cabinet Secretary stated as follows in an extract:6. a.NO women Teams will leave the country for any competition or participate in internal competitions without being accompanied by at least two (2) women officials, a doctor and a team welfare officer.b.ALL Teams will ensure that the number of women to men officials is in keeping with the constitutional threshold of two thirds gender representation. As a matter of practice, they shall also endavour to equal the numbers going forward.c.ALL Sports Organizations and Federations registered with the Ministry SHALL ensure that women are represented in management and, that the constitutional threshold of two thirds gender representation is upheld. As a matter of Practice, they shall also endeavor to maintain a 50:50 men to women representation in management and all other administrative operations.

63. This, amongst other criteria, is just a sample of the Criterion that a Federation is expected to furnish the Tribunal when justifying the Selection that has been employed in the appointment of the Team Officials.

64. Just like inclusivity mentioned above, transparency is also one of the expected tenets of Team Selection. National Federations are funded by the tax payers and therefore owe allegiance to the Republic that maintains them. Some Federations have embraced this an even advertised openly the various positions under consideration. This is the transparency expected where the qualifications speak are attached that evince the merit under which the applicants will be appointed.

65. Even where such criteria exists, it should be reasonable and certain to avoid instances where the Selection is bent at the whims of the National Executive Committee.

66. The Tribunal has previously pronounced itself on the need for clarity in the selection criteria. For instance, the Tribunal stated in Swaleh Talib Abubakar Vs Stabilisation 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.”

67. However, the Tribunal has not been furnished with any concrete mechanism that the 2nd Respondent applied in the appointment and selection of the Team Manager. The only indication given to the Tribunal was that The Team Manager was an elective position before the formal appointments were made. A detailed look at the Minutes of the 2nd Respondent and in particular the Meeting held on 12th May 2024 that made the decision that is appealed against shows scant reference to the Selection and Appointment Criteria.

68. Under Min 0001/10/05/24 titled Olympic Prepsarations/team Officials, it is recorded that the NEC was concerned about the allocation of the compliment by the Interested Party that was felt to be low and the 1st Respondent undertook upon a Resolution to seek a revision of the numbers of the Team Officials. Thereafter, two members, were proposed for the position being the Claimant and the 1st Respondent. Initially, the meeting resolved that the two leave the meeting room but the remaining members opted for a secret balloting of the voting and recalled them into the room.

69. It appears the only reason advanced for this election was the reduction of the compliment of the officials allowed to travel which necessitated the revocation of the previous appointment and selection and fresh balloting.

70. To that extent, the Tribunal opines that the 2nd Respondent is in violation of its cardinal obligation to ensure only the best squad and team are sent to represent the country in the Olympics or other tournaments.

71. Additionally, it would have been expected that there were considerations such as open application for the positions from members of the Federation and not merely expressing an interest in the position. To ringfence the process from integrity questions and enhance transparency, the decision to have officials of the NEC as the forefront candidates to be selected should have been overruled for it casts aspersion on the legitimacy of the process.

72. This is because it was susceptible to canvassing, co-option and peculiar interests influencing the process. Moreso, a clearly stated minimum qualifications for consideration such as recency in involvement and not just prior experience; past experience, current duties and other considerations such as representation of youth, vulnerable and gender balancing is deemed necessary.

73. Since there is no valid criteria that could have aided the Tribunal in deciding the most appropriate candidate to act as the team manager, the Tribunal is now poised with a simple question of determining whether the nullification of the initial appointment was in order, and whether the process leading to the election and the subsequent appointment of the 1st Respondent are valid.

74. In this sequence, the Tribunal has to also consider what prompted the appointment of the 1st Respondent in the meeting of April 2024 and in effect the cancellation of the initial appointment which cancellation is being challenged. This is because only a cogent reason or change of circumstances would warrant the cancellation of the initial appointment.

75. The more prudent and cautionary approach to make a just determination is to interrogate the election that took place on 12th May 2024.

76. The 1st and the 2nd Respondent filed one response sworn by Ismail Chege wherein they stated that the 7th January 2024 election that led to the appointment of the Claimant was but a tentative process and the list of nominees was a ‘wishlist’ and not determinate.

77. In particular, they aver that it is upon change of circumstances that the 2nd Respondent opted to review the list. The circumstances involved having a leaner delegation to the 2024 Paris Olympics as provided by the interested party.

78. Notably, in the 2020 Olympics in Japan (held in 2021), the country sent 12 delegates which included 6 Brazilians and 6 Kenyans. The Tribunal is reliably informed that the Brazilians are no longer part of the team. Further, it was stated that the wishlist was in anticipation of getting 8 slots to be sponsored by the interested party which instead declared that is shall only sponsor 4.

79. The fundamental change in circumstances is thus a non-starter and expressly clear for any observant eye and fair-minded reasoning. That the decision to make the delegation leaner prompted the subsequent April and May elections which led to the appointment of the 1st Respondent.

80. A cursory appraisal of the process presents an overarching position that for the better part of this year, the Claimant had been the legitimate Team Manager - whether it was provisionally or substantively - for the National Women’s Volleyball Team.

81. Importantly, about 2 months after her appointment as the Team Manager, the Claimant’s name was sent to the interested party on 27th February 2024 affirming her role. In addition, she had been actively involved in preparing for the Olympic Games. A legitimate expectation was therefore created that she would be the Team Manager.

82. This is demonstrated by her participation as Team Manager in the 100-days countdown games to the Olympics at Ruaraka and Uhuru Park while also prepared the team for the Challenger’s cup to be held in the Philippines. Other preparation process by the Claimant was that she chaired the panel that prepared the budgeting for the team.

83. Interestingly, these preparation efforts by the Claimant were not contested by the Respondent. Nonetheless, they added that although the Claimant prepared the Budget, the 1st Respondent authenticated it. Further, the Respondents allege that any tournaments taking place before the Olympic games were independent from the Olympic preparations. The Tribunal does not however find credibility in divorcing these competitions from the Olympic Games preparation when they are so contemporaneously linked.

84. From the foregoing, it is evident that the Claimant has been central to the preparation of the Olympics and the decision to disturb the appointment ought to have been borne out of change of material circumstances.

85. The Tribunal does not consider a leaner delegation to be a change in material circumstances to warrant the nullification of the appointment. In any event, the 1st Respondent, if at all, considered himself the most suitable candidate to manage the team should have expressed that interest during the ‘elections’ held in January 2024.

86. Upon scrutiny, the Tribunal is not convinced that the 2nd respondent can whimsically alter the appointment of a technical team. Therefore, the first election process for the Team Manager having not been challenged as the criteria for selecting the team, it ought to have been determinate.

87. A spontaneous and hurried decision to be the Team Manager on the discovery that only a smaller delegation shall be sponsored to the event has to be treated with the contempt it deserves. For it does not inspire love and dedication to the sport but rather demonstrates indifference to its success and reward for those in higher positions within the Federation. That is the inference drawn from the lack of clear reasons for the April and May meetings.

88. Having settled on a questionable criteria in itself to determine the technical team, the Tribunal shall not further be an accessory to any impropriety in the selection of the technical team by allowing wanton changes flowing from illegitimate considerations to be invoked.

89. Hence, the election conducted in May did not satisfy the Tribunal as to be imperative to the proper preparation of the team. Instead, it only sought to disorganize that which had been settled and is therefore a nullity.

90. In addition, the Tribunal has also looked at the propriety and lawfulness of the selection of the 1st Respondent in replacement of the Claimant.

91. From the onset, the Tribunal is apprehensive that the National Executive Committee members were the front runners of the selection which raises the issue over potential conflict of interest.

92. Conflict of Interest is an issue that even the Constitution of the 2nd Respondent anticipates and clearly sets out the procedure on its handling. Article 5. 1.6 on the NEC members Interests clearly stipulates that even interest on Selection matters qualifies as a Conflict of Interest issue.Under Article 5. 1.6 2 (a), it states:A member of the National Executive Committee shall declare his interest in any:c)Selection matter… in which a conflict of interest arises or may arise, and shall, unless otherwise determined by the NEC, absent himself from discussions of such matter and shall not be entitled to vote in respect of such matter. If the NEC members votes, the vote shall not be counted.

93. In Office of the Director of Public Prosecutions v Orengo; Manduku & 2 others (Interested Parties) (Constitutional Petition 204 of 2019) [2021] KEHC 456 (KLR) under paragraph 35, it was quoted as follows:Ms Soweto referred the court to Philomena Mbete Mwilu v Director of Public Prosecutions & 2 others; Stanley Muluvi Kiima (Interested Party) [2018] eKLR where conflict of interest was defined: “A situation where one is confronted by 2 different interests so that serving one interest would be against the other interest.”

94. The competing interests here are to be an official of the Federation sitting in the highest organ and also be involved in a decision of the personal nature.

95. Although the Claimant and the 1st Respondent did not cast their votes on the initial election allegedly held in January, they were allowed to vote for themselves in the 12th May 2024 election. We find this rather repulsive and inconsistent with the 2nd Respondent’s constitution which explicitly sanctions such conduct.

96. Importantly, the Tribunal seeks to pose the question as to whether in an extraordinary situation where the President of the federation and another member of the NEC tied in a contest, would the President exercise his powers for a casting vote to his favour? It is for this reason that where there is an interest, the involved parties should refrain from voting lest its outcome be treated as a sham regardless of who won. In Idris Abdi Abdullahi v Ahmed Bashane & 2 others [2018] eKLR the court observed as follows:However as regards the kind of violation of the Constitution or the law that would vitiate an election, the Supreme Court expressed itself as follows:“[209]Therefore, while we agree with the two Lord Justices in the Morgan v. Simpson case that the two limbs should be applied disjunctively, we would, on our part, not take Lord Stephenson?s route that even trivial breaches of the law should void an election. That is not realistic. It is a global truism that no conduct of any election can be perfect. We will also go a step further and add that even though the word „substantially? is not in our section, we would infer it in the words „if it appears? in that section. That expression in our view requires that, before vitiating it, the court should, looking at the conduct of the whole election, be satisfied that it substantially breached the principles in the Constitution, the Elections Act and other electoral law. To be voided under the first limb, the election should be what Lord Stephenson called „a sham or travesty of an election? or what Prof. Ekirikubinza refers to as „a spurious imitation of what elections should be?” (Emphasis added).

97. To buttress the foregoing, where the constitution excludes a person from participating in an election because of inherent interests, then their participation should be sanctioned. The Tribunal notes that non-compliance could not have affected the final results. Nevertheless, it questions the essence of organizing this second election and the process leading to it have undermined its credibility.

98. The decision by the 1st Respondent to sit as a contestant for the position placed him as a person having his personal interests at heart. This is why it is necessary to clarify that the 1st Respondent has been sued in his own capacity in this matter since his name was on the ballot for the position of the Team Manager. To have a joint Response in this Claim for the 1st and 2nd Respondent’s showed the blurred lines between the 1st Respondent as President and 1st Respondent as the substitute Team Manager. In his brief address to the Tribunal, the 1st Respondent kept referring to “we” to mean the 2nd Respondent. The designated witness Ismael Chege also confirmed that he took instructions from the 1st Respondent to file the Replying Affidavit. These, we note, are serious governance concerns.

99. Having gone through the parties’ positions, the Tribunal could not help but notice the potential of self-seeking interests to takeover the selection process. This is especially because despite recusal from voting by those members who expressed interest, they could have undue advantage on the outcome of this process.

100. Yet again, the Tribunal does not seek to render the entirety of the selection process as nought for it would lead to an absurdity where there is no technical team to accompany the women’s volleyball team.

101. In Royal Media Services Ltd v Attorney General & 2 others [2020] eKL the Court of Appeal pronounced itself on the law abhorring vacuums as follows;(46)In Republic v. Returning Officer Kamukunji Constituency & another [2008] eKLR, the High Court (J. G. Nyamu, J. (as he then was) and R. Wendoh, J.) succinctly stated as follows:“Just as nature abhors a vacuum, even the enforcement of the rule of law abhors a vacuum or a gap in its enforcement and we refuse to accept jurisprudence which accepts or suggests that a gap exists in our law… The jurisprudence which we uphold is the one that will help the courts at all times to ‘illuminate the dark spots and shadows in all circumstances, so that justice as a beacon of light and democratic ideals are practiced and hailed at all times over the hills, valleys, towns, and homes in this beautiful land of Kenya. The mantle of justice and the rule of law must cover all corners of Kenya in all situations. Courts have a continuing obligation to be the foremost protectors of the rule of law.”

102. In light of the foregoing, despite the Tribunal expressing its strongest contempt on the glaring issues of propriety, it seeks not to create a situation that will further scuttle the preparations for the 2024 Paris Olympic games. Hence, the selection process that took place on 12th May 2024 shall be invalidated for the aforementioned reasons including participation and actual voting of the members and the manner with which it was conducted. In the same breath, the January election shall be deemed legitimate for the purpose of this Claim noting that the persons seeking the position of Team Manager did not vote for themselves in those prior Selections.

iii. Whether the first and second Respondents actions were in exercise of the Fair Administrative Action Act; 103. The Claimant herein alleged that the Respondents’ manner in the determination to annul her appointment was a gross violation of her fair administrative rights enshrined in the Constitution under Article 47 and Section 4 of the Fair Administrative Action Act.

104. To illustrate, section 4(3) outlines the following(3)Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision–(a)prior and adequate notice of the nature and reasons for the proposed administrative action;(b)an opportunity to be heard and to make representations in that regard;(c)notice of a right to a review or internal appeal against an administrative decision, where applicable; (d) a statement of reasons pursuant to section 6;(e)notice of the right to legal representation, where applicable;(f)notice of the right to cross-examine or where applicable; or(g)information, materials and evidence to be relied

105. The Tribunal finds it essential to make a determination on the extent of satisfaction each of the above-mentioned limbs and elects to proceed sequentially forthwith.

106. The first query is on the sufficiency of notice as stipulated by the law. In this case, the notice that was required was to comply with the necessary timeline members are granted to prepare for a meeting and present their views. The Claimant challenged the inordinately short notice period issued on 11th April 2024 for a meeting on 13th April 2024.

107. The 1st Respondent himself complained of the short notice wherein the meeting was rescheduled to 14th April 2024 that still falls far short of the 7 days’ notice.

108. Indeed, the Claimant raised issue on this anomaly that bordered on illegality vide a letter dated 16th April 2024. Subsequently a meeting was rescheduled on 12th May 2024 that endorsed the 14th April decision that culminated to a new list of team officials.

109. The other essential tenet is an opportunity to be heard. The Claimant asserts that she was not granted such an opportunity. On the other hand, the Respondents aver that they had the right to vary the appointment and therefore there was no need to grant such an opportunity.

110. Notably, if the Claimant was aggrieved by the decision, it would have been prudential to give an explanation on why the 2nd Respondent resorted to review the technical team selected or elected to represent Kenya in the women’s volleyball at Paris Olympics 2024. A failure to offer substantive rationale to back the abrupt change of thoughts would amount to arbitrariness.

111. In Republic v National Land Commission & 2 others Ex Parte Archdiocese of Nairobi Kenya Registered Trustees, the court declared as follows:64. A recent articulation of the elements of procedural fairness in the administrative law context was provided by the Supreme Court in Baker vs. Canada (Minister of Citizenship & Immigration) 2 S.C.R. 817 6 where it was held:“The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decision affecting their rights, interests, or privileges made using a fair, impartial and open process, appropriate to the statutory, institutional and social context of the decisions.”

112. The Tribunal is not remotely convinced that the 2nd Respondent fulfilled the aforementioned requirement if they did not give the Claimant that opportunity.

113. In particular, having been aggrieved by the outcome of the second impugned election, the Claimant sought to challenge the decision and thus requested for minutes of meetings from the 12th of May 2024. Much to her disappointment, the 2nd Respondent’s NEC refused to share the same. The Tribunal therefore takes note of the secrecy and mystique that the Respondents have tried to engage in.

114. Furthermore, it is clear that the meeting on 12th May 2024 aimed at sanctifying the process upon realizing the repulsive nature of the 14th April 2024 meeting. After a keen perusal of the Respondent’s Constitution, it is apparent that there is a procedure to be adhered to when conducting the NEC’s business. The Respondents cannot explain the reason behind their departure.

115. Interestingly, the May meeting endorsed the April meeting outcome illustrating the questionable character of the latter. It follows therefore that legitimacy cannot be borne out of illegitimate action.

116. In essence, the decision to nullify the appointment of the Claimant could only be valid if the process satisfied basic tenets of fair administrative action. The Tribunal acknowledges the wide-sweeping powers of the 2nd Respondent’s National Executive Committee to vary appointments.

117. Nonetheless, it resists the temptations to be persuaded that these powers can be exercised contrary to administrative justice. In any event, the powers are exercised by natural persons and equally have an effect on natural persons.

118. Specifically, the subjects of any decision have a legitimate expectation that the powers shall be exercised in a fair and just manner. The Claimant herein, as anyone would expect, had settled it in her mind that she is the team manager since the beginning of the year and a decision that goes contrary to that appointment ought to have been based on cogent reasoning.

119. We rely on the case of Republic v Cabinet Secretary for Agriculture, Livestock, Fisheries & Co-operatives & another; State Corporations Advisory Com where the court pronounced itself as such:The Applicant invites the Court to adopt the definition of legitimate expectation advanced by authors De Smith, Woolf & Jowell in “Judicial Review of Administrative Action” 6th Edn. Sweet & Maxwell at page 609 as:“A legitimate expectation arises where a person responsible for taking a decision has induced in someone a reasonable expectation that he will receive or retain a benefit of advantage. It is a basic principle of fairness that legitimate expectations ought not to be thwarted. The protection of legitimate expectations is at the root of the constitutional principle of the rule of law, which requires predictability and certainty in government’s dealings with the public.”

120. Further, still on fair hearing, the Tribunal wishes to interrogate whether the Claimant had an opportunity to be heard to present her position on the changes on 14th April 2024.

121. Undoubtedly, the insufficient notice issued in relation to the meeting flouted the minimum timeline that is required to organize the meetings. The Claimant’s decision not to attend does not therefore impose any burden on her, for equity does not aid a volunteer. In attending the meeting, she would have been countenancing an impropriety.

122. Consequently, a second meeting wherein sufficient notice was issued was rescheduled to May. Basically, the outcome of the May meeting was nearly identical to the previous improper meeting in that the prevailing agenda was the selection of the technical team. The alleged voting that took place on 14th April 2024 was adopted and deemed conclusive on the technical team accompanying the KVF women’s team.

123. The Tribunal cannot overlook the mischief that this reshuffle of roles aimed to achieve. Interestingly, and in absentia, the Claimant was appointed as the chaperone. Since the interested party had already declared that it shall only sponsor 4 officials. It seems obvious that less critical positions would have to surrender their intention and/or willingness to accompany the team, hence, this subsequent appointment of the Claimant watered-down her influence on the team and could be waived.

124. Precisely, the Team Manager cannot be left out which emphasizes how important the position is. If indeed, the position is integral to the performance of the team then revoking an appointment would warrant a clear defined process. Instead, the Claimant lost the position through a process that was inconsistent with fair administrative action.

125. According to the Respondent, a hearing was immaterial in its exercise of its powers to vary appointments. To reiterate, the Tribunal does not oppose these powers, however, it cannot condone arbitrary exercise of the same. This is because it is not only detrimental to the rights of individuals but also the management of sporting organizations.

126. It is clear that the Claimant was not given a hearing in both instances with regards to her opposition to the subsequent elections and adoption of the reshuffling of the technical team. While we do not wish to raise the gender card, a decision to replace the Claimant as team manager without a fair hearing goes against the spirit of making sports more appealing to women. The Ministry of Sports, Culture and Heritage circular in July 8th 2021 in particular aimed at promoting the inclusion of women at every level in sports.

127. Considering that the Respondents acted in the belief that the variation of role was legitimate, an option for appeal was not availed. This was also encapsulated by the stringent timeline available before the commencement of the Olympics.

128. The upshot of the foregoing is that there is a disconnect between the Respondents and the Claimants on if indeed the reshuffling of roles needed any elaborate process. Specifically, while the Claimant was aggrieved by the decision, the Respondent acted presumably that the decision is not subject to administrative action process.

129. This presents a unique position wherein the Tribunal was invited to assess the validity of the changes brought by the elections in itself and not the processes. For the avoidance of doubts, the elections were a precursor to the revocation of the Claimant’s appointments.

130. Indeed, it is not a given that a popular process can be free and fair only because the majority prevailed. Occasionally, snap elections can be called to allow new realities to be reflected.

131. Nevertheless, the new realities should not be self-serving but rather promote a sounder connection between the elected and their electorate. The situation herein is that the elections were aimed at selecting the technical team, thus the new realities presented should be aimed at serving both the 2nd Respondent and the Kenya Women Volleyball’s team.

132. It is rather unclear how the 2nd Respondent decided to have a wish-list on the technical team barely half a year to the Olympics then replace it few months to the Games. Even more concerning is that the 2nd Respondent has issued no clear explanation on why the purported wish-list was abrogated. Thus, the most reasonable conclusion is that members of the tentative list were fit to serve in their respective positions. Consequently, there being no concrete rationale to conduct new elections, the subsequent election is therefore moot.

(iv) Whether the orders of the Tribunal had been violated. 133. The Tribunal has already noted that The Hon. the Chair of the Tribunal issued orders on 20th May 2024 to the effect that pending hearing and determination of the application by the Claimant, a conservatory order of injunction was issued staying the communication and decision of the 2nd Respondent to the Interested Party replacing the Claimant as the Team Manager for the Malkia Strikers for the 2024 Paris Olympics Games pending the hearing and determination of this application.

134. In addition, the Tribunal has noted that that the tournaments taking part before the Olympics are deemed to be part of the Olympics preparations. Such tournaments include the 2024 FIVB Women’s Volleyball Challenger Cup to be held in Manila, Philippines. During the hearing, it was noted that the 2nd Respondent intended to appoint and select another Team Manager for this competition. In the event that any action has been taken that effectively lead to the replacement of the Claimant, the same would be contrary to the Orders that a conservatory order had been issued staying the replacement of the Claimant. The Olympics Games may happen as an event but it is clear that there is a process that is involved to reach the event including the preparation and training. This is also consistent with the Sports Act that speaks to having officials appointed in good time. The Tribunal will not go into the details on this issue.

Conclusion 135. Having analyzed the issues as above, the Tribunal pronounces itself and makes orders as follows on the issues raised.a.With regards to the Jurisdiction of the Tribunal to hear this matter, the Tribunal finds that it has the Jurisdiction as this is a matter that falls within the ambit of Selection however it may be worded as appointment or naming or whichever medium it may whether by an ad hoc Committee or by an Election.b.With regards to whether the 2nd Respondent has a set out criterion on the Selection and Appointment of the Team Officials including the Team Manager, the Tribunal finds that the 2nd Respondent has not proved that it has such a Criteria. The 2nd Respondent should have a merited criteria that it applies in the appointment of its technical team instead of a popular process involving its own officials that raises governance concerns.c.Consequently, the best practice has been adopted by the Tribunal who find that issues such as naming the Team Manager in good time are interfered with in the jostling for positions as demonstrated by the evidence. The Legitimate Expectation of the Claimant is also interfered with having been previously selected the Team Manager and her name forwarded to the Interested Party.d.The Tribunal finds that the Claimant was not granted a fair opportunity to defend her position as the Team Manager having been so appointed and selected.e.The Tribunal however cannot leave a vacuum in the position of Team Manager as the law abhors a vacuum. The decision made on 12th May 2024 cannot stand and rather than leave a vacuum, the Tribunal goes back to the decision taken earlier to select the Claimant as the Team Manager.f.The orders of the Tribunal should be obeyed to the latter without having varied interpretations on whether change of the personnel with other personnel was a breach. The competitions before the Olympic Games are deemed to be preparations for the Olympics Games and the team should have the best possible preparation without interference. The change of the Team Manager without any justification is deemed as interference.g.The Claimant, having been duly appointed and selected as Team Manager shall remain the Team Manager to other pre-Olympic Games matches including the Volleyball Challenger Cup in Manila.

136. Effectively, the Tribunal finds that the Claimant succeeds in this Claim and orders the reinstatement and approval of the Claimant’s selection and appointment as the Team Manager of the Kenya National Women’s Volleyball Team, Malkia Strikers, for the 2024 Olympic Games. In the same breath, the appointment of the 1st Respondent as the Team Manager is hereby nullified, revoked, cancelled and quashed.

137. The Interested Party is directed for all purposes and reasons, to facilitate the necessary arrangements for the Claimant, Lilian Mududa Waweru, and for other connected purposes as the Team Manager of the Kenya National Women’s Volleyball team at the 2024 Olympic Games.

138. On the issue of costs, the Tribunal has considered that whereas ordinarily the successful party would be awarded costs in the matter where they have been successful, it shall exercise its discretion. For this reason, each party shall bear their costs in this matter.

139. The Tribunal thanks Counsel for the Claimant and for the 1st and 2nd Respondents for their very helpful contribution and diligence in this matter.

DATED AND DELIVERED AT NAIROBI THIS 21ST DAY OF JUNE, 2024Allan Owinyi - Panel ChairpersonGabriel Ouko - MemberBenard Wafula Murunga - Member