REPUBLIC OF KENYA

THE JUDICIARY

OFFICE OF THE SPORTS DISPUTES TRIBUNAL

APPEAL NUMBER SDTSC E018 OF 2023

SWALEH TALIB ABUBAKAR...................................…..……APPELLANT/APPLICANT

VERSUS

STABILISATION COMMITTEE OF

THE KENYA SWIMMING FEDERATION..………...……………..... 1 ST RESPONDENT

JAICE NAIDOO……………………………………………………...…2ND RESPONDENT

MOSES BENON MWASE……………………………………………..3RD RESPONDENT

FRANCIS MUTUKU……..……………………….………….………..4TH RESPONDENT

NATIONAL OLYMPICS COMMITTEE OF

KENYA……………………………………….……………………….5TH RESPONDENT

DECISION

Hearing: 8th June, 2023

Panel: Mr. Edmond Kiplagat (Chair)

Mr. Benard Murunga Wafula

Mr. Allan Owinyi

Appearances: Mr. Omwebu instructed by Litoro & Omwebu Advocates for the
Appellant/Applicant,

Mr. Moses Mwame, 3rd Respondent in person and as a representative of the 1st, 2nd
and 4th Respondents.
The Parties
1. The Appellant/Applicant, Swaleh Talib Abubakar, is a male swimmer who registered his
interest to represent Kenya at the 2023 World Aquatics Championships that were scheduled to
be held in Fukuoka, Japan between July 14 and July 30, 2023 (“the Fukuoka World
Championships”)

2. The 1st Respondent is an interim national sports organization responsible for the sport of
swimming in Kenya and duly appointed by the World governing body for swimming.

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

4. The 3rd Respondent is a member of the of the 1st Respondent.

5. The 4th Respondent is a member of the of the 1st Respondent

6. The 5th Respondent is the organization responsible for overseeing and coordinating Kenya's
participation in the Olympic Games and other international multi-sport events.
Background
7. The proceedings have been commenced by way of a Notice of Motion filed on 2nd June, 2023
on an urgency basis. The nature of the urgency in this case arises from the imminent selection
and participation in the 2023 World Aquatics Championships, scheduled to be held in Fukuoka,
Japan between July 14 and July 30, 2023.

8. The Appellant/Applicant contends that immediate intervention is necessary to prevent

irreparable harm, namely the exclusion from the World Aquatics Championships, which the
Appellant/Applicant alleges that the lack of prompt resolution of the dispute will lead to.

9. The Appellant/Applicant has alleged that the decision being appealed against is on account of
alleged selection decision made by the 1st to 4th Respondents in confirming the selection for
the male representatives of Kenya's Team for the World Aquatics Championships.

10. The Appellant/Applicant alleges that the Respondents failed to adhere to clear and transparent
criteria in the selection process, thereby violating the principles of fairness and inclusivity.

11. The Tribunal was invited to make the following orders:

i.DECLARATION that the 1st - 4th Respondents’ decision not to select the Appellant/Applicant
to the team set to represent Kenya at the 2023 World Aquatics Championships is irregular and
invalid. ii.DECLARATION that the 1st - 4th Respondents did not set and adhere to any known
criteria to select the Kenya Team at the national swimming time trials at the Kasarani Aquatic
Center held on May 20 & 21, 2023;
 iii.ORDER quashing the 1st - 4th Respondent’s decision not to select the Appellant/Applicant to
the team set to represent Kenya at the 2023 World Aquatics Championships and the
Respondents be directed to submit the relevant entries of Appellant/Applicant’s name and
details into the World Aquatics Championship slated to be held in Fukuoka, Japan between
July 14 and July 30, 2023 through the World Aquatics General Management System (GMS)
before the deadline of June 13, 2023, 23.59 GMT. iv.IN THE ALTERNATIVE, the Tribunal do
allow the Appeal and conclusively determine the issue of selection of the Appellant/Applicant to
the Japan World Aquatic Championships, 2023.
v.Costs of this Appeal be borne by the Respondents.

12. The matter was mentioned on 6th June 2023 for the purpose of taking directions. The
Tribunal directed that it would hear the Appeal on 8th June 2023 at 12.30pm. The
Appellant/Applicant was directed to serve the Respondents with the orders and the hearing date.

13. An Affidavit of Service was filed on 8th June 2023 evidencing that the Respondents had
been served. At the hearing set for 8th June 2023, the Respondents were absent and the
Appellant/Applicant was heard. The Tribunal directed that it would give orders on the same day
at 4.00pm.

14. The Respondents through their Advocate appeared at 4.00pm on 8th June 2023 and
indicated that they had mistaken the Hearing to have been set for 2.30pm instead of 12.30pm. The
Tribunal extended latitude to the Respondents to respond to the Appeal and they were heard orally
and also filed a formal response to the Appeal.

15. The matter was mentioned on 9th June 2023 at 3.00pm when the Respondent confirmed
that they had filed their Written Response and the Tribunal allowed the Appellant/Applicant to file
a Reply to the same by midday on 10th June 2023 with directions that the Ruling on the matter
shall be made on 12th June 2023 due to the impending deadline of 13th June 2023 23.59GMT for
the submission of names through the World Aquatics General Management System (GMS).
The Appellant/Applicant’s Case
16. The Appellant/Applicant participated in the Kenya Swimming Federation Swimming
Nationals Time Trials held between May 20 – May 21 2023 with the aim of being selected to
represent Kenya at the 2023 World Aquatics Championships in Japan.

17. However, the selection criteria were not published prior to the trials, causing confusion among
the swimmers.

18. Despite performing well enough for selection in multiple events, the Appellant/Applicant was
not chosen as part of the Kenyan team.

19. The Appellant/Applicant’s counsel Mr. Omwebu, argued that the selection process was unfair
and contrary to the World Aquatic Competitions Regulations of 2023. According to these
 regulations, each federation is allowed to enter two male and two female swimmers, and they
must be selected from different events.

20. The Appellant/Applicant believes that they should have been selected as the second male
swimmer based on their overall performance, as they achieved better results in events other
than the one used for selection.

21. Further, Mr. Omwebu also stated that the Appellant/Applicant had made efforts to
communicate with the Stabilization Committee regarding the decision that was made.
However, these efforts to reach out to the committee went unanswered, and he did not receive
any response or clarification regarding his concerns.

22. According to the Appellant/Applicant’s counsel, the lack of response from the Stabilization
Committee further emphasizes the Appellant/Applicant's contention that the selection process
was opaque and unfair. Despite attempting to engage with the committee to address his
grievances and seek clarification, the Appellant/Applicant was met with silence, which added
to his frustration and the perception of injustice.

23. By highlighting the unresponsiveness of the Stabilization Committee, the Appellant/Applicant

sought for a hearing and determination by an impartial body, such as the Sports Disputes
Tribunal, in accordance with the Sports Act, 2013. The Appellant/Applicant's efforts to engage
with the relevant authorities, coupled with their lack of response, underscored the need for an
independent review of the selection process to ensure fairness and adherence to the applicable
regulations.

24. The Appellant/Applicant asserts that their exclusion from the team denies them the opportunity
to represent Kenya at an international level, including the upcoming 2023 World Aquatics
Championships and future events such as the Olympics. They emphasize the urgency of
resolving the appeal promptly, as the deadline for submitting registrations and entries is
approaching.

25. The Appellant/Applicant claims that the Respondents' decision violated constitutional
principles of good governance, integrity, transparency, and accountability. He argued that the
absence of a transparent and objective selection criteria leaves the decision-making process
open to arbitrary and unjust choices.

26. The Appellant/Applicant highlights the substantial loss and prejudice they will suffer as a result
of being excluded from the championships, as well as the impact on their professional career
and personal efforts as a swimmer.

27. The Appellant/Applicant requests the Tribunal to hear and determine their appeal, considering
the irregularities in the selection process and the violation of the World Aquatic Competitions
Regulations. They urge the tribunal to take immediate remedial action to allow them the
opportunity to represent Kenya at the 2023 World Aquatics Championships.
The Response
28. In response to the Appellant/Applicant's appeal, Mr. Moses Mwame (3rd Respondent)
appeared on behalf of the 1st Respondent and made submissions indicating that the decision
reached by the Local Organizing Committee was, in fact, irregular and invalid.

29. He indicated that contrary to averments that there was no criteria for qualification, the
Stabilization Committee had indeed attached the criteria and circulated it to the athletes.

30. He informed the Tribunal that the Stabilization Committee had subsequently exercised its
discretion by overturning the decision of the Local Organizing Committee and awarded the
Appellant/Applicant the position of the second-best male participant, thereby qualifying him for
the competition.

31. Mr. Mwame argued that due to this intended decision by the Stabilization Committee, the
appeal had been premature and unnecessary before the Tribunal.

32. Furthermore, Mr. Mwame informed the court that Kenya quota had been reduced by World
Aquatics, to only one male and one female athlete. He emphasized that if no negotiations were
made to rectify this situation, any orders issued by the Tribunal would be futile. Consequently, the
Stabilization Committee was engaging the world body to allow the right quota for the country.

33. By highlighting the stance of Mr. Mwame and the intended actions of the 1st Respondent,
rd
the 3 Respondents' position would be that the appeal lacks merit and should not be entertained at
this stage. They argued that the Stabilization Committee's intended decision to award the
Appellant/Applicant a qualifying position demonstrated that the matter was already being
addressed and that the appeal was premature.
The Appellant/Applicant’s Response
34. The Appellant/Applicant responded by highlighting that the assertion made by the 3rd
Respondent regarding the decision passed by the Stabilization Committee constituted a
concession to part of the appeal.

35. Nonetheless, the Appellant/Applicant specifically noted that the appeal was indeed properly
before the Tribunal and had not been filed prematurely.

36. Regarding the issue of suspension by World Aquatics, Mr. Omwebu, pointed out the lack of
proper documentation to substantiate such a claim. He urged the Tribunal not to be misled by
the 3rd Respondent's statement, emphasizing that the world body had not communicated any
suspension through any official announcements.

Discussion
37. The jurisdiction of this Tribunal to determine this dispute is conferred upon it by Section
58(a)(ii) 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. ………………………….;

ii. appeals against not being selected for a Kenyan team or squad. (emphasis ours)
38. In addition, Rule 21 (as may be renumbered) of the Sports Disputes Tribunal Regulations
empowers the Tribunal to conclusively determine matters related to selection and non-selection
due to exigency.

39. The Respondents themselves acknowledged that a dispute had been lodged by the
Appellant/Applicant to them through email and one of the points of departure between the
Respondents and the Appellant/Applicant was that the Appellant/Applicant had not exhausted
the internal dispute resolution mechanism. In effect, there was a dispute that was capable of
being placed before the Tribunal and hence the Tribunal is vested with requisite jurisdiction to
conclusively decide the matter.

40. There is no contention that the Appellant/Applicant took part in the trials that were held after
the Summons issued by the Stabilization Committee. This was the point of contact. Further,
there was also no contention on the results that were posted and the placing in the various
events on the date that the trials took place.

41.The Appellant/Applicant has pleaded that the 1st - 4th Respondents did not set and adhere to
any known criteria to select the
Kenya Team but instead, the Respondents deployed opaque and unfair considerations. In the case
of Jaqueline Njeri Waidhima Mwangi & 7 others v Anthony K. Mburu & 3 others [2018]
Eklr this Tribunal established the principles governing selection processes. It stated as follows;-

“ Upon hearing the matter respective parties and having evaluated documents and submissions
by the parties and the nature and urgency of the matter, the Tribunal has come to the conclusion
that it is in agreement with the Applicants/Appellants that a selection process must be fair,
transparent and inclusive and the terms and conditions thereof must be known to the
participants ahead of the selection date.

The purpose of a criteria is to enable both players and officials to have an objective and
verifiable basis upon which selection decisions can be made. 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 principle which requires the
criteria be followed unless there are extraordinary circumstances which militate against strict
adherence to the criteria. Officials of Sports Organizations can no longer arrogate to
themselves the power to run associations at their whim and without consultation with their
members. Indeed, it is for this reason that the Sports Act requires every sports organization to
have a constitution and that selection of athletes to national teams be based on verifiable
criteria.”

42. The issue that comes up for determination in this Tribunal was whether the decision arrived by
the Stabilization Committee was fair, transparent, inclusive and objective based on a set
criterion.

43. The Tribunal has noted the two conflicting positions on whether or not the Stabilization
Committee set a criterion for selection. The two emails provided by the Stabilization
Committee and sent on 26th April 2023 from one Collins Marigiri alluded to amendments being
made to the programme for the trials. The second email had an attachment that did not
specifically mention the Criteria but which seems to have been titled so.

44. In considering whether a set Criteria was available, the Tribunal looks at the documentation by
the Stabilization Committee as the primary documents whilst those of the affiliated bodies such
as the World Aquatics Federation are the secondary documents.
Unfortunately, the document titled KENYA SWIMMING FEDERATION STABLIZATION (sic)
COMMITTEE (KSFSC) SELECTION CRITERIA FOR WA WORLD CHAMPIONSHIPS 2023
FUKUOKA (JPN) has paucity in terms of the selection criteria. It simply states under 2.0 (1) that
athletes per gender subject to a highest WA points in an individual event to be considered for
selection.

45. In effect, there are no tie breaker rules or detailed processes in what the Tribunal would have
considered the primary documents. The Appellant/Applicant even disputed having received
this notification and instead placed before the Tribunal the World Aquatics Competition
Regulations of 21 February 2023 in support of its claim.

46. From the World Aquatics Competition Regulations of 21 February 2023, it is clear that the
qualification procedure is as follows:

6.2.2 Sport Entry with no Standard Times

At the World Aquatics Championships, National Federations may enter swimmers who
have not achieved either Standard Entry Time as follows:

• With no swimmers who have achieved the “A” or “B” Standard Entry Time: National
Federations may enter up to four
(4) swimmers, two (2) men and two (2) women.
 • With one (1) or two (2) swimmers who has achieved the “A” or “B” Standard Entry Time:
National Federations may enter up to a maximum of four (4) swimmers (two (2) men and
two (2) women), and with three (3) swimmers who have achieved the “A” or “B” Standard
Entry Time, one (1) additional swimmer provided that both genders are represented.

• Theswimmers who have not achieved a Standard Entry Time will only be permitted to
enter up to two (2) individual events each.

• An individual entry for a swimmer without an “A” or “B” Standard Entry Time must be
in an event where no other swimmer from the National Federation has been entered.

47. The above guidelines outline the criteria for entry without standard times at the World Aquatics
Championships. Here's a breakdown of the rules:
i. If a National Federation does not have any swimmers who have achieved the "A" or "B"
Standard Entry Time, they are allowed to enter a maximum of four (4) swimmers, with
two (2) men and two (2) women.
ii. If a National Federation has one (1) or two (2) swimmers who have achieved the "A" or
"B" Standard Entry Time, they can still enter up to four (4) swimmers, with two (2) men
and two (2) women. If they have three (3) swimmers who have achieved the "A" or "B"
Standard Entry Time, they can enter one (1) additional swimmer, provided that both
genders are represented.
iii. Swimmers who have not achieved a Standard Entry Time are limited to entering a
maximum of two (2) individual events each.
iv. When entering a swimmer without an "A" or "B" Standard Entry Time, the event chosen
must not have another swimmer from the same National Federation already entered in
that event.

48. These rules outline the eligibility and entry limits for swimmers who have not achieved the
required standard times for the World Aquatics Championships.

49. This Tribunal agrees with the Appellant/Applicant argument that the Respondents violated
these conditions by selecting two swimmers from the same event (100 meters freestyle) to
represent Kenya, which is contrary to the World Aquatic Competitions Regulations. The
Appellant/Applicant believes that, as the second-ranked male swimmer overall, he should have
been chosen instead, as they excelled in other events where the selected swimmers did not
perform as well.

50. In response, the 3rd Respondent argued that it had the discretion to conduct the selection
process. However, it is noteworthy that the 3rd Respondent simultaneously acknowledged
being bound by criteria that, upon analysis, align with those stipulated in Rule 6.2.2 of the
World Aquatic Regulations 2023. This peculiar submission raises concerns regarding the
exercise of discretion and the application of consistent and transparent selection criteria.
51. It is crucial to recognize that any departure from the established selection criteria and rules
must be firmly justified and carefully regulated.

52. Article 10 of the Constitution of Kenya enshrines the National values and principles of
governance, which encompass the ideals of good governance, integrity, transparency, and
accountability. These fundamental principles demand that the selection process be conducted
with utmost fairness, transparency, and adherence to established criteria. Deviations from these
principles not only erode the trust and confidence of participants but also undermine the
integrity of the entire selection process.

53. Therefore, unless exceptional circumstances can be substantiated, any departure from the
established rules must not be entertained or permitted.

54. The statement made by the 3rd Respondent, acknowledging that the decision passed by the 1st
Respondent was irregular and invalid, carries significant implications. Firstly, it indicates a
recognition by the 3rd Respondent that there were flaws and irregularities in the decision-
making process of the Stabilization Committee. This acknowledgment undermines the
credibility and legitimacy of that Committee's decision.

55. Moreover, it raises concerns about the adherence to established protocols and guidelines within
the governing body. The admission by the 3rd Respondent not only supports the
Appellant/Applicant's contention that the appeal is properly before the Tribunal but also
suggests a potential lack of due process and fairness in the overall decision-making process.
These factors further underscore the need for a thorough review and assessment of the case by
the Tribunal to ensure justice and uphold the principles of fairness and transparency.

56. To its credit, the 1st Respondent seem to blame the Local Organizing Committee for making a
premature announcement when it had no powers so to do not the mandate to make the
announcement.

57. The emails submitted by the Appellant/Applicant after this premature decision was passed and
the subsequent lack of response from the 1st Respondent are significant factors to consider in
this case. The Appellant/Applicant, in their correspondence, raised concerns and sought
resolution for their grievances. However, the 3rd Respondent argued that they were not given
sufficient time by the Appellant/Applicant to address these concerns. It is important to note
that the strict and short timelines, imposed by the submission deadline to World Aquatic,
created a sense of urgency in this matter. The unanswered emails left the Appellant/Applicant
with no alternative but to approach this Tribunal for redress. Consequently, it was not
premature for the Appellant/Applicant to approach the Tribunal.

58. The only evidence of a response to the Appellant/Applicant's grievances from the 1st
Respondent is a series of unsubstantiated correspondence through phone calls, which raises
doubts about the sincerity and effectiveness of the communication between the parties. The
 failure to engage in a meaningful dialogue and address the Appellant/Applicant's concerns
further underscores the need for an impartial and fair examination of the case by this Tribunal.

59. Article 159 2 (d) provides that in exercising its judicial authority, the courts and tribunals shall
be guided by the following principles- (a)….
(b)justice shall not be delayed
(c) alternate forms of dispute resolution including reconciliation, mediation and traditional
dispute resolution mechanisms shall be promoted, subject to clause 3
(d)…..
(e)….

60. Clause 3 as per (c) quoted in the preceding paragraph then provides that- Traditional dispute

resolution mechanisms shall not be used in a way that--

(a) contravenes the Bill of Rights;

(b) is repugnant to justice and morality or results in outcomes that are repugnant to
justice or morality; or (c) is inconsistent with this Constitution or any written law.
61. In light of the admission by the 3rd Respondent that the forum which passed the decision did
so irregularly, it is crucial to recognize the responsibility of the state to ensure access to justice
for all individuals, as guaranteed by the Bill of Rights in Chapter 5 the Constitution of Kenya
2010. It is the responsibility of the State to guarantee access to justice for all persons.
62. It is evident that the same forum that rendered the irregular decision cannot be relied upon to
seek resolution and uphold the principles of access to justice. Allowing the 3rd Respondent's
indulgence, considering the time constraints imposed by the timelines in this case, would likely
render these proceedings ineffective and devoid of a fair and just outcome.
63. Therefore, it is imperative that this Tribunal, as an independent and impartial body, assumes
its responsibility to examine the matter thoroughly and ensure that access to justice is upheld
in accordance with the National values and principles of governance, including good
governance, integrity, transparency, and accountability enshrined in Article 10 of the
Constitution of Kenya.
64. Selection to represent the country is an important milestone in the life of any athlete. It should
be taken seriously because sometimes that selection may only come once as future possible
selections can be affected by vagaries of life such as injury or cancellation of events. Indeed,
the Sports Act takes cognizance of the major responsibility of selection to represent the country
that it alludes to this being a patriotic duty by insisting under the Second Schedule of matters
to be provided for in the constitutions of sports organizations that only citizens of Kenya shall
be eligible for election as the chairperson, secretary or treasurer of a body at the national level.
65. It is of utmost importance that selections of this nature adhere to principles of clarity and
transparency to facilitate a fair and objective procedure for claimants to benefit from. In the
case of a Federation as significant as this, it is crucial that clear escalation procedures are
established and communicated effectively. It is not sufficient to proceed without providing a
 well-defined mechanism for addressing grievances and seeking resolution. By doing so, the
Federation can ensure that its decision-making process is accountable, and claimants have a
clear avenue to pursue their concerns. Therefore, it is imperative that the relevant authorities
take necessary steps to establish and perfect such escalation procedures, thereby promoting
transparency, integrity, and accountability in the selection process.
66. Having conceded that the Stabilization Committee has since reconsidered the earlier decision
not to select the Appellant/Applicant, the Tribunal nonetheless reiterates that reasons for
selection should be given in announcements to avoid the likelihood of contestants presuming
that discretion, if any, has not been exercised judiciously. As noted above, selection can be a
once in a lifetime event and Federations owe the athletes this as a routine practice.
67. In this instance, the reason for selection has now been corrected to be due to the prevailing
conditions that the country could not enter two athletes in the same event.
68. The Tribunal acknowledges the contention by the 3rd Respondent regarding the alleged quota
ban on athlete selection from Kenya imposed by the world body governing aquatic sports. The
Tribunal notes the 3rd Respondent's submission that the Stabilization Committee is doing
everything possible to ensure that the country does not lose its quota in this competition and
thus prejudice the rights of the Appellant/Applicant. It is important that decisions that affect
lives of athletes and may breach their rights to participate noting the sacrifices they make to
enter competitions is not treated lightly by any sporting body be it national or international.
Indeed, as noted above, the Sports Act makes certain presumptions of patriotic duties of
national federations and it would seem most biased if the world body that has appointed a
Stabilization Committee that is comprised of two thirds of nonKenyans (who are nonetheless
well respected in their own right) is deemed in the eyes of Kenyans not to have done everything
possible to preserve the rights of a Kenyan. This cautionary statement addresses a valid
concern regarding the potential futility of any orders issued by the Tribunal if the plea to
preserve the quota is not adequately addressed.
Conclusion
69. In these circumstances, the following orders commend themselves to the Tribunal:

1. The Appeal is allowed.

2. The decision not to select the Appellant/Applicant to the team set to represent Kenya at the
2023 World Aquatics Championships slated to be held in Fukuoka, Japan between July 14
and July 30, 2023, and which decision was made on May 21, 2023, at the national
swimming time trials at the Kasarani Aquatic Center, is irregular and invalid.
3. In the absence of any well-justified criteria by the Federation, a DECLARATION that the
World Aquatic Competition Regulations 2023 stand to be the guide, and as such, the
Respondents did not adhere to it.
4. The Respondents are hereby directed to submit the relevant entries of
Appellant/Applicant’s name and details into the World Aquatics Championship slated to
be held in Fukuoka, Japan between July 14 and July 30, 2023 through the World Aquatics
General Management System (GMS) before the deadline of June 13, 2023, 23.59 GMT.
 5. The decision not to select the Appellant/Applicant to the team set to represent Kenya at the
2023 World Aquatics Championships slated to be held in Fukuoka, Japan between July 14
and July 30, 2023, is hereby quashed.
6. If it is determined that there is indeed a reduction in the quota that will affect the
Appellant/Applicant, the Respondents to bring to the attention of the world governing body
World Aquatics these orders and in particular paragraph 68 thereof.

70. TheTribunal thanks both Counsel for the Appellant and the Respondents for their very helpful
contribution and for going over the usual timelines to ensure the matter was conducted within
the timelines of the impending deadlines.

Dated and delivered at Nairobi this 12th day of June, 2023.

Signed:

Mr. Edmond Kiplagat (Chair) Mr. Benard Murunga Wafula

Mr. Allan Owinyi