Pursuant to leave of this court granted on 16 th April 2025, the ex parte applicant filed a substantive motion dated 2 nd May 2025. The application seeks the following orders: CERTIORARI to bring into this Court and quash the 2 nd Respondent’s decision and/or notice to charge the Applicant herein, dated the 2 nd September, 2024, for an alleged Anti-Doping Rule Violation (ADRV) at the Sports Disputes Tribunal.
CERTIORARI to bring into this Court and quash the 1 st Respondent’s (Elynah Shiveka, Allan Owinyi & Mary Kimani) proceedings and decision contained in the decision delivered on and/or dated the 27 th February, 2025, in SDTADK E062 OF 2024 Anti-Doping Agency of Kenya –VS- Nancy Jelagat Meto, and all consequential decisions and/or directions arising therefrom.
PROHIBITION directed at the 1 st Respondent prohibiting them from carrying out and/or continuing with any proceedings against the Applicant in relation to the decision to charge and/or notice to charge dated the 2 nd September, 2024.
MANDAMUS compelling the 2 nd Respondent’s Chairperson to constitute and/or establish a hearing panel (Results Management Panel) in accordance with the Anti-Doping Regulations Legal Notice 211 of 2020 and the World Anti-Doping Code International Standard for Results Management, 2023.
The application is supported by the statutory statement dated 8 th April 2025 and the verifying affidavit sworn by Nancy Jelagat Meto on the same date.
The ex parte applicant’s case is that she is an international athlete and a member of the World Athletics, an international sport organization. She alleges that on or about 2 nd September,2024, the 2 nd respondent vide a notice to charge of even date addressed to the Chairperson of the 1 st respondent requested for the constitution of a panel in view of the 2 nd respondent’s intentions to file charges against the applicant for an alleged Anti-doping Rule Violation (ADRV).
The events leading up to the notice to charge are that the 2 nd respondent through its Doping Control Officer (DCO) conducted an out of competition test upon the applicant and during this test, a urine sample was collected from the Applicant which the 2 nd respondent alleged had presence of a substance which is a prohibited substance as per the World Anti-Doping Agency’s prohibited list, 2024.
That pursuant to the alleged adverse analytical finding of the urine sample of the applicant, the 2 nd respondent decided to charge the applicant with an alleged commission of an Anti-Doping Rule Violation before the 1 st respondent.
It is the Applicant’s case that the notice to charge was given to her only recently by the 1 st respondent on the 19 th March, 2025, when she requested to be supplied with the pleadings in the case to enable her to prepare her defence. According to her, the notice dated 2 nd September 2024 is addressed to the chairperson of the 1 st respondent.
That the said notice to charge was neither at any time made available to her, nor was she sure whether or not the same should have been made available to her from the onset, being not the recipient thereto.
The applicant states that she did respond to the said charge document and, amongst other things, she denied the jurisdiction of the 1 st respondent to hear and determine the commission or otherwise of the alleged violation.
The issue of the jurisdiction is said to have been canvassed by way of submissions and a decision by the 1 st respondent delivered on 27 th February, 2025. However, that on 22 nd January, 2025, the 1 st respondent requested the parties to appear before it to clarify certain questions it had regarding the parties’ submissions.
That during the aforesaid date, the applicant clarified that the Anti-Doping Regulations upon which the 1 st respondent based its submissions are those which were gazetted in 2020, whilst the 2 nd respondent maintained that it was using the Regulations for 2016.
Parties were thereafter requested to file further submissions in respect of the laws upon which their submissions were based, and leave was granted to the Applicant to, in addition, file a rebuttal to the 2 nd respondent’s submissions. According to the applicant, the 2 nd respondent opted not to submit on the laws it was relying on in its submissions, despite the request by the 1 st respondent.
That the 1 st respondent’s ruling on the issue of its jurisdiction was initially slated to be delivered on the 20 th February, 2025, but was adjourned to 27 th February, 2025, for reasons that the 1 st respondent, on the particular week, was to be engaged in a “stakeholder engagement” with the 2 nd respondent.
The applicant places reliance on Article 19(1) of the Constitution on the Bill of Rights and argues that the respondents have an obligation under Article 21(1) of the Constitution to respect the Bill of Rights. She also relies on Article 47 on the right to fair administrative action.
She further relies on Section 7(3) of the Anti-Doping Act on the 2 nd respondent’s power to delegate any aspect of doping control or anti-doping education to a delegated third party and section 31(a) on the 1 st respondent’s jurisdiction to hear and determine cases on anti-doping rule violations on national and lower-level athletes and athlete support personnel.
The applicant also relies on Article 8.1.1 of The Anti-Doping Regulations(2016) (Repealed), which is said to have provided that all disputes relating to anti-doping rule violations shall be referred to the Tribunal established under the Sports Act, 2013.
Further, she relies on Article 8.1.1.1 of The Anti-Doping Regulations (2020) which is said to provide that 2 nd respondent shall establish a Hearing Panel (Results Management Panel) which under the Anti-Doping Act, has jurisdiction to hear and determine whether an Athlete or other Person, subject to these Anti-Doping Rules, has committed an Anti-Doping rule violation, and if applicable, to impose relevant consequences.
According to the applicant, under Article 8.2.1, when the 2 nd respondent sends a notice to an Athlete or other Person notifying them of a potential Anti-Doping rule violation, and the Athlete or other Person does not waive a hearing in accordance with Article 8.3.1 or Article 8.3.2, then the case shall be referred to the Hearing Panel for hearing and adjudication, which shall be conducted in accordance with the principles described in Anti-Doping Act, Articles 8 and 9 of the International Standard for Results Management.
The applicant also states that Article 8.1.2.2 of the Regulations provides that upon appointment by the Chair as a member of the 2 nd respondent’s Hearing Panel, each member must sign a declaration that there are no facts or circumstances known to him or her which might call into question their impartiality in the eyes of any of the parties other than those circumstances disclosed in the declaration.
The applicant relies on Article 8.1 of the World Anti-Doping Code which is said to provide that for any person who is alleged to have committed an anti-doping rule violation, the Anti-Doping Organization with responsibility for Results Management shall provide, at a minimum, a fair hearing within reasonable time by a fair, impartial and Operationally Independent hearing panel in compliance with the WADA International Standard for Results Management.
The applicant’s further case is that Article 7.5 of WADA International Standard for Results Management provides that, subject to Article 7.6, in the event that the Athlete or other Person requests a hearing, the matter shall be referred to the Results Management Authority’s hearing panel and be dealt with pursuant to Article 8.
It is her case that Article 8.3 provides that the applicable rules shall provide for an independent person or body to determine in their discretion, the size and composition of a particular hearing panel to adjudicate an individual case. Further, that at least one appointed hearing panel member must have a legal background.
She also relies on Article 8.4 which is said to provide that upon appointment to a hearing panel, each hearing panel member shall sign a declaration that there are no facts or circumstances known to him/her which might call into question their impartiality in the eyes of any of the parties, other than any circumstances disclosed in the declaration.
Article 8.5 is said to provide that the parties shall be notified of the identity of the hearing panel appointed to hear and determine the matter and be provided with their declaration at the outset of the Hearing Process. Further, that the parties are to be informed of their right to challenge the appointment of any hearing panel member if there are grounds for potential conflicts of interest within seven (7) days from the grounds for the challenge having become known.
The ex parte applicant also filed written submissions dated 10 th June 2025 in which she states that the 1 st respondent’s decision to clothe itself with jurisdiction to adjudicate over the alleged Anti-Doping Rule Violation was a decision that was marred with irrationality, non-adherence to procedure, bias and ultra vires.
It is also her submission that the gravamen of the dispute between the parties herein is the manner of interpretation of Section 31 of the Anti-Doping Act, 2016 and Article 8 of the Anti-Doping Regulations in particular and the decision arising therefrom. Further, that the two legal provisions touched on the jurisdiction of the 1 st respondent and in particular, the two distinct issues being: whether or not the 1 st respondent had jurisdiction to adjudicate over an allegedly committed Anti-Doping Rule Violation by an international level athlete such as the applicant and whether or not a hearing panel to adjudicate over an alleged ADRV is such as established by the 1 st respondent or otherwise.
The applicant relies on De Smith’s Judicial Review 7 th Edition, Sweet & Maxwell (2013) at page 127, where, according to her, the writer observes that the court operates on the notion that where a body’s power is derived from the statute of subordinate legislation under the statute, then the body in question is amenable to judicial review. She further relies on pages 206 and 250, where the writer, according to what has been reproduced by the applicant, gives instances when a body errs in law to include when it is acting beyond the mandate donated to it by statute and when its acts in breach of fundamental human rights.
The applicant submits that it was an uncontested fact that she is an international-level athlete and that by virtue of her status as an international-level athlete, the 1 st respondent could not try an alleged Anti-Doping Rule Violation alleged to have been committed by her. That in its decision dated the 27 th February, 2025, the 1 st respondent, despite express provisions of the law, assigned itself jurisdiction over the applicant, acting contrary to the law and the powers conferred upon it.
It is also her submission that at paragraphs 85-86 of the impugned decision, the 1 st respondent shifts the argument from being its jurisdiction over the applicant to being one of the 2 nd respondent over Results Management. According to the Applicant, she did not at any time challenge the 2 nd respondent’s authority to undertake testing or subsequent Results Management arising therefrom by virtue of her international-level status, but rather the adjudicatory process of the Results Management process being undertaken by the 1 st respondent.
The issue it is submitted, was that the forum of the adjudicatory process of the Results Management ought not to be the 1 st respondent by virtue of the status of the applicant and equally by virtue of Article 8 of the Regulations.
The applicant’s submission is that the 1 st respondent in assuming jurisdiction over her alleged violation of anti-doping rule as an international athlete, did not in any way consider the provisions of Section 31(1) of the Anti-Doping Act, save for quoting the same under paragraph 86 of the said impugned decision.
The 1 st respondent is said to have erroneously observed that the Anti-Doping Act “clarifies the only instance when the Tribunal cannot have jurisdiction over an international-level athlete, which is at appellate level...”. It is the applicant’s submission that the issue of the appellate jurisdiction was not in contest or in issue.
Further submission was that a reading of the entire Section 31 provides a holistic approach to the issue of the first instance jurisdiction against the applicant by virtue of her status. The applicant submits that it can be clearly seen that Section 31 is split into categories and that the first category deals with the issue of the first instance adjudicatory powers of the 1 st respondent, while the second category deals with the appellate adjudicatory powers of the 1 st respondent.
It is the applicant’s submission that it was quite irrational of the 1 st respondent in its impugned decision to try and tie Section 31(6) to Section 31(1) as Section 31 (1) is in the first category of the said Section and Section 31(6) is the secondary category of the said Section. Further, that the introductory part of Section 31 (6), that is, “For the avoidance of doubt,” does not relate in any way to Section 31(1) but is in reference to Section 31(4) -(5). She submits that, in fact Section 31 (6) supports Section 31 (1) in ousting both first instance and appellate jurisdiction of the 1 st respondent over international level athletes.
It was submitted that the 1 st respondent is said to have, at page 90 of its decision, observed thus “…jurisdiction should be conferred by law and appreciating that this should ordinarily be beyond a narrow reading of the law including Section 31 of the Anti-Doping Act ”. The applicant submits that to reason that jurisdiction should be interpreted beyond the confines of statute and to appropriate jurisdiction thereafter is not procedurally improper, but it is equally ultra-vires and biased.
The applicant also submits that it was contradictory for the 1 st respondent to agree with the submissions of the applicant that indeed it did not have jurisdiction over her alleged Anti-Doping Rule Violation by virtue of her status as an international level athlete by dint of Section 31(1) and in the same breath go on to hold that it still has jurisdiction over the said alleged violation by virtue of Section 31(6).
The 1 st respondent, it is submitted, also misinterpreted Article 8 of the Anti-Doping Regulations, and under paragraph 87 of impugned decision, and that instead of interrogating the meaning of Article 8 of the Regulations as stated in law, it erroneously purported to cast aspersions as to the independence or otherwise of the hearing panel envisaged under Article 8 of the Regulations.
According to the applicant, a clear reading of Article 8.1.1.1 of the Regulations is that the 2 nd respondent shall establish a hearing panel, whether such hearing is independent or otherwise, was not an issue; the issue was whether or not it (and/or its hearing panel) was the one envisaged under the law.
The applicant submits that the 1 st respondent went on about its independence and designated itself as a delegated third party on behalf of the 2 nd respondent, which cannot be the case. Further, that delegated third parties cannot be entities such as the 1 st respondent but organisations of similar fashion as the 2 nd respondent.
Articles 7.1 of the World Doping Code, Article 7.5 of the International Standard for Results Management and Article 7.1.1 of Anti-Doping Regulations, it is submitted, do not mandate any results management to be undertaken within the borders of Kenya and therefore the 1 st respondent misinterpreted clear legal provisions and erroneously inserted its own thoughts into said legal provisions and this was done at paragraph 121 of the impugned decision. It is also the applicant’s submission that the 2 nd respondent had delegated its mandate to Athletics Integrity Unit, an international outfit, to undertake the Results Management process on its behalf, not in Kenya.
The applicant submits that the assertion by the 1 st respondent that “… no athlete should slip between the cracks in the universal fight against doping in sports ” in its decision, at paragraph 123, does not only exhibit a lack of fairness in arriving at its decision of having jurisdiction over the alleged violation committed by the applicant, but also militates against the applicant’s right to fair hearing and fair administrative action.
She also submits that under paragraph 125 of the impugned decision the 1 st Respondent states that “ Its jurisdiction extends beyond traditional judicial constraints, reflecting the unique nature of anti-doping in sports ” and that in so asserting and arriving at the decision that it had jurisdiction over her Anti-Doping Rule Violation her status as an international level athlete notwithstanding, it acted irrationally, ultra vires and with bias.
The respondents did not comply with directions of the court to file their responses to the application within the timelines given to allow the applicant a rejoinder and only waited until the matter was reserved for judgment is when they sneaked in their reply and submissions, without leave of court.
Analysis and Determination
Having considered the application, affidavit and material in support of the application as well as the written submissions by the Applicant, the issues that arise for determination are:
Whether the 1 st Respondent had jurisdiction under the Anti-Doping Act to hear and determine Anti-Doping Rule Violation proceedings against the ex parte applicant who claims to be an international athlete.
Whether the 2 nd Respondent was obligated under the Anti-Doping Regulations and WADA Code to constitute a distinct Hearing Panel (Results Management Panel) for adjudicating the Anti-Doping Rule Violation.
Whether the 2 nd Respondent followed the correct procedure under the Anti-Doping Regulations and WADA Code in initiating the proceedings.
What orders should this court make including on costs, if any?
Issues a to c will be determined simultaneously, noting that they all concern jurisdiction of the Tribunal.
Before I embark on analyzing the substantive issues that have been raised, I must first address why there is no reference to any of the respondents’ responses or written submissions. The court, in its directions of 6 th May 2025, upon observing that the applicant had filed its substantive motion dated 16 th April 2025, directed the applicant to serve the motion and all other documents that had been filed in support of the leave application and any orders of the court upon the respondents.
The respondents were granted 10 days to file and serve their responses to the application and the applicant 10 days from the date of service by the respondents to file and serve a further affidavit, if need be, together with her written submissions.
The respondents were granted 10 days from the date of service by the Applicant to file and serve a supplementary affidavit together with written submissions. The matter was set for a mention on 11 th June 2025, for purposes of fixing a judgment date. When the matter came up on 11 th June 2025, the respondents had not entered appearance nor filed any response. This was despite counsel for the applicant, Mr. Olieti, confirming that they had been served.
The Court confirms from the record that the applicant filed an affidavit of service sworn by Mr. Olieti Raphael Okubo an advocate of the High Court of Kenya on 13 th May 2025 detailing that physical service had been effected upon the respondents on 12 th May 2025 and the service acknowledged by the 1 st and 2 nd respondent’s official stamps being affixed on Mr. Olieti’s copies. The stamped copies are on record before this court.
In utter disregard of this court’s directions that were issued almost two months prior, the 2 nd respondent on 4 th July 2025 purportedly filed a replying affidavit sworn on 27 th June 2025, this was after the close of pleadings and the matter already having been reserved for judgment and without obtaining any leave of the court or at all and in total disregard of the timelines set for disposal of the application. This court has on various occasions emphasised the importance of complying with court’s directions and the need to avoid trial by ambush, where a party secretively files documents when the matter is pending judgment such that the adverse party has no opportunity to respond thereto.
This position has also been reiterated by the Supreme Court in Okoiti & 3 others v Cabinet Secretary for the National Treasury and Planning & 10 others (Application E029 of 2023) [2023] KESC 69 (KLR) (8 September 2023) (Ruling) . So serious is the non-compliance with court directions that courts, this court included, have struck out pleadings and written submissions for having been filed outside the timelines set. Having established as much, this court finds that in the interest of procedural integrity and fairness to the applicant, it will not take the said affidavit into account in the determination of this matter, and as such, the same is struck out from the record for being filed outside the timelines set by the court and without leave.
Now onto the framed issued issues for determination. Whether the 1 st respondent had jurisdiction under the Anti-Doping Act to hear and determine Anti-Doping Rule Violation proceedings involving the ex parte applicant who claims to be an international-level athlete.
Whether the 2nd Respondent was obligated under the Anti-Doping Regulations and WADA Code to constitute a distinct Hearing Panel (Results Management Panel) for adjudicating the Anti-Doping Rule Violation.
Whether the 2nd Respondent followed the correct procedure under the Anti-Doping Regulations and WADA Code in initiating the proceedings.
Having determined the issue of the 2 nd respondent’s affidavit, this court now proceeds to determine whether the 1 st respondent had jurisdiction under the Anti-Doping Act to hear and determine the Anti-Doping Rule Violation proceedings against the ex parte applicant who claims to be an international-level athlete.
The ex parte applicant challenges the jurisdiction of the 1 st respondent, the Sports Disputes Tribunal, to adjudicate anti-doping charges brought against her. She avers, and it is not contested, that she is an international-level athlete within the meaning of the World Anti-Doping Code and the Anti-Doping Regulations 2020. Her case is that by virtue of her status and the applicable statutory and regulatory frameworks, the Tribunal was divested of jurisdiction to hear and determine alleged Anti-Doping Rule Violations (ADRVs) against her.
Section 31(1) of the Anti-Doping Act expressly limits the Tribunal’s jurisdiction at first instance. It provides as follows:
31. Jurisdiction of Sports Tribunal
(1) The Tribunal shall have jurisdiction to hear and determine cases on-
(a) anti-doping rule violations on national and lower level athletes and athlete support personnel;
(b) anti-doping rule violations on other persons subject to the Anti-Doping Rules;
(c) anti-doping rule violations arising from national and lower level events;
(d) Therapeutic Use Exemptions (TUE) decisions of Anti-Doping Agency of Kenya (ADAK); and
(e) matters of compliance of sports organisations in the first instance and appellate level.
(2) The Tribunal shall be guided by the Code, the International Standards established under the Code, the 2005 UNESCO Convention Against Doping in Sports, the Sports Act (Cap. 223), and the Agency's Anti-Doping Rules, amongst other legal sources.
(3) The Tribunal shall establish its own procedures.
(4) Appeal level disputes involving national and lower level athletes, athlete support personnel, sports federations, sports organisations, professional athletes and other persons subject to the Anti-Doping Rules shall be resolved by the Tribunal—
(a) which shall consist of a panel of three members appointed by the Chairperson of the Tribunal; and
(b) after the panel members have signed a no conflict of interest declaration in form provided by the Agency.
(5) The World Anti-Doping Agency, the International Olympic Committee, the International Paralympic Committee, and the relevant International Federations shall have the right to a second appeal to the Court of Arbitration for Sports (CAS) with respect to the appeal decisions of the Tribunal.
(6) For the avoidance of doubt, the Tribunal shall not have jurisdiction over Appeals involving International Level athletes or arising from the participation in International Events or national crimes related to doping.
This section clearly delineates the scope of the Tribunal’s jurisdiction. It empowers the Tribunal to hear and determine cases relating to ADRVs involving national and lower-level athletes, support personnel , and violations arising from national level events , among other related matters. Critically, Section 31(6) provides as follows:
“For the avoidance of doubt, the Tribunal shall not have jurisdiction over Appeals involving International Level athletes or arising from the participation in International Events or national crimes related to doping.”
While Section 31(6) refers expressly to appeals, it cannot be read in isolation. It is this court’s finding that the section is a clarificatory provision, introduced with the phrase “For the avoidance of doubt,” and is designed to reinforce the substantive jurisdictional boundaries already set out in Section 31(1). To adopt a narrow interpretation, as the Tribunal did, and confine Section 31(6) solely to appellate proceedings, would be to ignore the underlying purpose and structure of the jurisdictional scheme, which clearly excludes international level ADRVs from the remit of the Tribunal at both first instance and appellate levels.
The Tribunal, in its impugned decision, acknowledged the applicant’s status as an international level athlete but nevertheless concluded it had jurisdiction to hear the matter. The Tribunal stated as follows at paragraph 73 of the impugned:
“73. The Panel agrees with the Athlete that she is indeed an International-Level Athlete; it notes that there was some amount of flippancy by the Applicant in referencing her categorization and we decry the flip, flop, neither here, nor there, designation by the Applicant of the Athlete, so that in their Charge Document the Applicant designated the Athlete as a National-Level-Athlete while in their submissions, the Applicant acknowledged her International Level-Athlete status. In the Notice to Charge dated 2 nd September 2024, it was the Applicant’s statement, “TAKE NOTICE that the applicant herein intends to file charges herein against one Kenyan female national level athlete who’s in-competition sample collected on 12 th June, 2024 returned an Adverse Analytical Finding (AFF).”, whereas the Applicant’s own documents on record indicated the given fact, which was that the Applicant itself collected the Urine Sample Out-of-Competition.
74. Thereby, by virtue of her Kenyan nationality, the Athlete fell under the Applicant’s jurisdiction and it behooves the Applicant to know the designation/status of at least its own nationals, (if necessary by liaising with the Athlete’s IF), as this is crucial information for a first instance adjudication panel, to enable it set out the appropriate appeal route under Code Article 13.”
Despite establishing as herein above, it went ahead to reach the conclusion that it had jurisdiction by interpreting Section 31(6) as applying only to appeals, and reasoned that since the instant proceedings were at first instance, the Tribunal retained jurisdiction. It went further to suggest that jurisdiction should be interpreted “beyond a narrow reading of the law,” and invoked policy considerations such as the need to ensure that “no athlete slips through the cracks” in the global anti-doping framework.
This line of reasoning is flawed. Jurisdiction is not founded on policy preferences or equity; it must flow from clear statutory authority. As the applicant rightly submits, the Tribunal’s interpretation renders Section 31(1) impractical insofar as it clearly limits the Tribunal’s mandate to national and lower-level athletes and events. If the Tribunal were to have original jurisdiction over international athletes, Section 31(1) would have stated so expressly. The Tribunal’s reading collapses the distinction between national and international regimes, a distinction that is fundamental to the structure of the World Anti-Doping Code and the national anti-doping framework.
In this case, it is not in dispute that the Applicant is an international-level athlete subject to the jurisdiction of the International Federation and the World Anti-Doping Agency (WADA). The Applicant also relies on Article 8 of the Anti-Doping Regulations, 2020, which provides that for any person who is asserted to have committed an Anti-Doping rule violation, ADAK shall provide a fair hearing within a reasonable time by a fair, impartial, and operationally Independent hearing panel in compliance with the Code and the International Standard for Results Management.
Article 8.1.1.1 of the 2020 Regulations provides that it is the 2 nd Respondent , not the Tribunal, that is mandated to establish such a hearing panel for adjudication. Article 8.3 of the International Standard for Results Management further reinforces that this hearing panel must be legally competent, independent and appropriately composed, a role the 1 st respondent does not play in relation to international athletes.
The ADRV proceedings, which are the subject of this judicial review application, stemmed from an ou
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CERTIORARI to bring into this Court and quash the 1 st Respondent’s (Elynah Shiveka, Allan Owinyi & Mary Kimani) proceedings and decision contained in the decision delivered on and/or dated the 27 th February, 2025, in SDTADK E062 OF 2024 Anti-Doping Agency of Kenya –VS- Nancy Jelagat Meto, and all consequential decisions and/or directions arising therefrom.
PROHIBITION directed at the 1 st Respondent prohibiting them from carrying out and/or continuing with any proceedings against the Applicant in relation to the decision to charge and/or notice to charge dated the 2 nd September, 2024.
MANDAMUS compelling the 2 nd Respondent’s Chairperson to constitute and/or establish a hearing panel (Results Management Panel) in accordance with the Anti-Doping Regulations Legal Notice 211 of 2020 and the World Anti-Doping Code International Standard for Results Management, 2023.
The application is supported by the statutory statement dated 8 th April 2025 and the verifying affidavit sworn by Nancy Jelagat Meto on the same date.
The ex parte applicant’s case is that she is an international athlete and a member of the World Athletics, an international sport organization. She alleges that on or about 2 nd September,2024, the 2 nd respondent vide a notice to charge of even date addressed to the Chairperson of the 1 st respondent requested for the constitution of a panel in view of the 2 nd respondent’s intentions to file charges against the applicant for an alleged Anti-doping Rule Violation (ADRV).
The events leading up to the notice to charge are that the 2 nd respondent through its Doping Control Officer (DCO) conducted an out of competition test upon the applicant and during this test, a urine sample was collected from the Applicant which the 2 nd respondent alleged had presence of a substance which is a prohibited substance as per the World Anti-Doping Agency’s prohibited list, 2024.
That pursuant to the alleged adverse analytical finding of the urine sample of the applicant, the 2 nd respondent decided to charge the applicant with an alleged commission of an Anti-Doping Rule Violation before the 1 st respondent.
It is the Applicant’s case that the notice to charge was given to her only recently by the 1 st respondent on the 19 th March, 2025, when she requested to be supplied with the pleadings in the case to enable her to prepare her defence. According to her, the notice dated 2 nd September 2024 is addressed to the chairperson of the 1 st respondent.
That the said notice to charge was neither at any time made available to her, nor was she sure whether or not the same should have been made available to her from the onset, being not the recipient thereto.
The applicant states that she did respond to the said charge document and, amongst other things, she denied the jurisdiction of the 1 st respondent to hear and determine the commission or otherwise of the alleged violation.
The issue of the jurisdiction is said to have been canvassed by way of submissions and a decision by the 1 st respondent delivered on 27 th February, 2025. However, that on 22 nd January, 2025, the 1 st respondent requested the parties to appear before it to clarify certain questions it had regarding the parties’ submissions.
That during the aforesaid date, the applicant clarified that the Anti-Doping Regulations upon which the 1 st respondent based its submissions are those which were gazetted in 2020, whilst the 2 nd respondent maintained that it was using the Regulations for 2016.
Parties were thereafter requested to file further submissions in respect of the laws upon which their submissions were based, and leave was granted to the Applicant to, in addition, file a rebuttal to the 2 nd respondent’s submissions. According to the applicant, the 2 nd respondent opted not to submit on the laws it was relying on in its submissions, despite the request by the 1 st respondent.
That the 1 st respondent’s ruling on the issue of its jurisdiction was initially slated to be delivered on the 20 th February, 2025, but was adjourned to 27 th February, 2025, for reasons that the 1 st respondent, on the particular week, was to be engaged in a “stakeholder engagement” with the 2 nd respondent.
The applicant places reliance on Article 19(1) of the Constitution on the Bill of Rights and argues that the respondents have an obligation under Article 21(1) of the Constitution to respect the Bill of Rights. She also relies on Article 47 on the right to fair administrative action.
She further relies on Section 7(3) of the Anti-Doping Act on the 2 nd respondent’s power to delegate any aspect of doping control or anti-doping education to a delegated third party and section 31(a) on the 1 st respondent’s jurisdiction to hear and determine cases on anti-doping rule violations on national and lower-level athletes and athlete support personnel.
The applicant also relies on Article 8.1.1 of The Anti-Doping Regulations(2016) (Repealed), which is said to have provided that all disputes relating to anti-doping rule violations shall be referred to the Tribunal established under the Sports Act, 2013.
Further, she relies on Article 8.1.1.1 of The Anti-Doping Regulations (2020) which is said to provide that 2 nd respondent shall establish a Hearing Panel (Results Management Panel) which under the Anti-Doping Act, has jurisdiction to hear and determine whether an Athlete or other Person, subject to these Anti-Doping Rules, has committed an Anti-Doping rule violation, and if applicable, to impose relevant consequences.
According to the applicant, under Article 8.2.1, when the 2 nd respondent sends a notice to an Athlete or other Person notifying them of a potential Anti-Doping rule violation, and the Athlete or other Person does not waive a hearing in accordance with Article 8.3.1 or Article 8.3.2, then the case shall be referred to the Hearing Panel for hearing and adjudication, which shall be conducted in accordance with the principles described in Anti-Doping Act, Articles 8 and 9 of the International Standard for Results Management.
The applicant also states that Article 8.1.2.2 of the Regulations provides that upon appointment by the Chair as a member of the 2 nd respondent’s Hearing Panel, each member must sign a declaration that there are no facts or circumstances known to him or her which might call into question their impartiality in the eyes of any of the parties other than those circumstances disclosed in the declaration.
The applicant relies on Article 8.1 of the World Anti-Doping Code which is said to provide that for any person who is alleged to have committed an anti-doping rule violation, the Anti-Doping Organization with responsibility for Results Management shall provide, at a minimum, a fair hearing within reasonable time by a fair, impartial and Operationally Independent hearing panel in compliance with the WADA International Standard for Results Management.
The applicant’s further case is that Article 7.5 of WADA International Standard for Results Management provides that, subject to Article 7.6, in the event that the Athlete or other Person requests a hearing, the matter shall be referred to the Results Management Authority’s hearing panel and be dealt with pursuant to Article 8.
It is her case that Article 8.3 provides that the applicable rules shall provide for an independent person or body to determine in their discretion, the size and composition of a particular hearing panel to adjudicate an individual case. Further, that at least one appointed hearing panel member must have a legal background.
She also relies on Article 8.4 which is said to provide that upon appointment to a hearing panel, each hearing panel member shall sign a declaration that there are no facts or circumstances known to him/her which might call into question their impartiality in the eyes of any of the parties, other than any circumstances disclosed in the declaration.
Article 8.5 is said to provide that the parties shall be notified of the identity of the hearing panel appointed to hear and determine the matter and be provided with their declaration at the outset of the Hearing Process. Further, that the parties are to be informed of their right to challenge the appointment of any hearing panel member if there are grounds for potential conflicts of interest within seven (7) days from the grounds for the challenge having become known.
The ex parte applicant also filed written submissions dated 10 th June 2025 in which she states that the 1 st respondent’s decision to clothe itself with jurisdiction to adjudicate over the alleged Anti-Doping Rule Violation was a decision that was marred with irrationality, non-adherence to procedure, bias and ultra vires.
It is also her submission that the gravamen of the dispute between the parties herein is the manner of interpretation of Section 31 of the Anti-Doping Act, 2016 and Article 8 of the Anti-Doping Regulations in particular and the decision arising therefrom. Further, that the two legal provisions touched on the jurisdiction of the 1 st respondent and in particular, the two distinct issues being: whether or not the 1 st respondent had jurisdiction to adjudicate over an allegedly committed Anti-Doping Rule Violation by an international level athlete such as the applicant and whether or not a hearing panel to adjudicate over an alleged ADRV is such as established by the 1 st respondent or otherwise.
The applicant relies on De Smith’s Judicial Review 7 th Edition, Sweet & Maxwell (2013) at page 127, where, according to her, the writer observes that the court operates on the notion that where a body’s power is derived from the statute of subordinate legislation under the statute, then the body in question is amenable to judicial review. She further relies on pages 206 and 250, where the writer, according to what has been reproduced by the applicant, gives instances when a body errs in law to include when it is acting beyond the mandate donated to it by statute and when its acts in breach of fundamental human rights.
The applicant submits that it was an uncontested fact that she is an international-level athlete and that by virtue of her status as an international-level athlete, the 1 st respondent could not try an alleged Anti-Doping Rule Violation alleged to have been committed by her. That in its decision dated the 27 th February, 2025, the 1 st respondent, despite express provisions of the law, assigned itself jurisdiction over the applicant, acting contrary to the law and the powers conferred upon it.
It is also her submission that at paragraphs 85-86 of the impugned decision, the 1 st respondent shifts the argument from being its jurisdiction over the applicant to being one of the 2 nd respondent over Results Management. According to the Applicant, she did not at any time challenge the 2 nd respondent’s authority to undertake testing or subsequent Results Management arising therefrom by virtue of her international-level status, but rather the adjudicatory process of the Results Management process being undertaken by the 1 st respondent.
The issue it is submitted, was that the forum of the adjudicatory process of the Results Management ought not to be the 1 st respondent by virtue of the status of the applicant and equally by virtue of Article 8 of the Regulations.
The applicant’s submission is that the 1 st respondent in assuming jurisdiction over her alleged violation of anti-doping rule as an international athlete, did not in any way consider the provisions of Section 31(1) of the Anti-Doping Act, save for quoting the same under paragraph 86 of the said impugned decision.
The 1 st respondent is said to have erroneously observed that the Anti-Doping Act “clarifies the only instance when the Tribunal cannot have jurisdiction over an international-level athlete, which is at appellate level...”. It is the applicant’s submission that the issue of the appellate jurisdiction was not in contest or in issue.
Further submission was that a reading of the entire Section 31 provides a holistic approach to the issue of the first instance jurisdiction against the applicant by virtue of her status. The applicant submits that it can be clearly seen that Section 31 is split into categories and that the first category deals with the issue of the first instance adjudicatory powers of the 1 st respondent, while the second category deals with the appellate adjudicatory powers of the 1 st respondent.
It is the applicant’s submission that it was quite irrational of the 1 st respondent in its impugned decision to try and tie Section 31(6) to Section 31(1) as Section 31 (1) is in the first category of the said Section and Section 31(6) is the secondary category of the said Section. Further, that the introductory part of Section 31 (6), that is, “For the avoidance of doubt,” does not relate in any way to Section 31(1) but is in reference to Section 31(4) -(5). She submits that, in fact Section 31 (6) supports Section 31 (1) in ousting both first instance and appellate jurisdiction of the 1 st respondent over international level athletes.
It was submitted that the 1 st respondent is said to have, at page 90 of its decision, observed thus “…jurisdiction should be conferred by law and appreciating that this should ordinarily be beyond a narrow reading of the law including Section 31 of the Anti-Doping Act ”. The applicant submits that to reason that jurisdiction should be interpreted beyond the confines of statute and to appropriate jurisdiction thereafter is not procedurally improper, but it is equally ultra-vires and biased.
The applicant also submits that it was contradictory for the 1 st respondent to agree with the submissions of the applicant that indeed it did not have jurisdiction over her alleged Anti-Doping Rule Violation by virtue of her status as an international level athlete by dint of Section 31(1) and in the same breath go on to hold that it still has jurisdiction over the said alleged violation by virtue of Section 31(6).
The 1 st respondent, it is submitted, also misinterpreted Article 8 of the Anti-Doping Regulations, and under paragraph 87 of impugned decision, and that instead of interrogating the meaning of Article 8 of the Regulations as stated in law, it erroneously purported to cast aspersions as to the independence or otherwise of the hearing panel envisaged under Article 8 of the Regulations.
According to the applicant, a clear reading of Article 8.1.1.1 of the Regulations is that the 2 nd respondent shall establish a hearing panel, whether such hearing is independent or otherwise, was not an issue; the issue was whether or not it (and/or its hearing panel) was the one envisaged under the law.
The applicant submits that the 1 st respondent went on about its independence and designated itself as a delegated third party on behalf of the 2 nd respondent, which cannot be the case. Further, that delegated third parties cannot be entities such as the 1 st respondent but organisations of similar fashion as the 2 nd respondent.
Articles 7.1 of the World Doping Code, Article 7.5 of the International Standard for Results Management and Article 7.1.1 of Anti-Doping Regulations, it is submitted, do not mandate any results management to be undertaken within the borders of Kenya and therefore the 1 st respondent misinterpreted clear legal provisions and erroneously inserted its own thoughts into said legal provisions and this was done at paragraph 121 of the impugned decision. It is also the applicant’s submission that the 2 nd respondent had delegated its mandate to Athletics Integrity Unit, an international outfit, to undertake the Results Management process on its behalf, not in Kenya.
The applicant submits that the assertion by the 1 st respondent that “… no athlete should slip between the cracks in the universal fight against doping in sports ” in its decision, at paragraph 123, does not only exhibit a lack of fairness in arriving at its decision of having jurisdiction over the alleged violation committed by the applicant, but also militates against the applicant’s right to fair hearing and fair administrative action.
She also submits that under paragraph 125 of the impugned decision the 1 st Respondent states that “ Its jurisdiction extends beyond traditional judicial constraints, reflecting the unique nature of anti-doping in sports ” and that in so asserting and arriving at the decision that it had jurisdiction over her Anti-Doping Rule Violation her status as an international level athlete notwithstanding, it acted irrationally, ultra vires and with bias.
The respondents did not comply with directions of the court to file their responses to the application within the timelines given to allow the applicant a rejoinder and only waited until the matter was reserved for judgment is when they sneaked in their reply and submissions, without leave of court.
Analysis and Determination
Having considered the application, affidavit and material in support of the application as well as the written submissions by the Applicant, the issues that arise for determination are:
Whether the 1 st Respondent had jurisdiction under the Anti-Doping Act to hear and determine Anti-Doping Rule Violation proceedings against the ex parte applicant who claims to be an international athlete.
Whether the 2 nd Respondent was obligated under the Anti-Doping Regulations and WADA Code to constitute a distinct Hearing Panel (Results Management Panel) for adjudicating the Anti-Doping Rule Violation.
Whether the 2 nd Respondent followed the correct procedure under the Anti-Doping Regulations and WADA Code in initiating the proceedings.
What orders should this court make including on costs, if any?
Issues a to c will be determined simultaneously, noting that they all concern jurisdiction of the Tribunal.
Before I embark on analyzing the substantive issues that have been raised, I must first address why there is no reference to any of the respondents’ responses or written submissions. The court, in its directions of 6 th May 2025, upon observing that the applicant had filed its substantive motion dated 16 th April 2025, directed the applicant to serve the motion and all other documents that had been filed in support of the leave application and any orders of the court upon the respondents.
The respondents were granted 10 days to file and serve their responses to the application and the applicant 10 days from the date of service by the respondents to file and serve a further affidavit, if need be, together with her written submissions.
The respondents were granted 10 days from the date of service by the Applicant to file and serve a supplementary affidavit together with written submissions. The matter was set for a mention on 11 th June 2025, for purposes of fixing a judgment date. When the matter came up on 11 th June 2025, the respondents had not entered appearance nor filed any response. This was despite counsel for the applicant, Mr. Olieti, confirming that they had been served.
The Court confirms from the record that the applicant filed an affidavit of service sworn by Mr. Olieti Raphael Okubo an advocate of the High Court of Kenya on 13 th May 2025 detailing that physical service had been effected upon the respondents on 12 th May 2025 and the service acknowledged by the 1 st and 2 nd respondent’s official stamps being affixed on Mr. Olieti’s copies. The stamped copies are on record before this court.
In utter disregard of this court’s directions that were issued almost two months prior, the 2 nd respondent on 4 th July 2025 purportedly filed a replying affidavit sworn on 27 th June 2025, this was after the close of pleadings and the matter already having been reserved for judgment and without obtaining any leave of the court or at all and in total disregard of the timelines set for disposal of the application. This court has on various occasions emphasised the importance of complying with court’s directions and the need to avoid trial by ambush, where a party secretively files documents when the matter is pending judgment such that the adverse party has no opportunity to respond thereto.
This position has also been reiterated by the Supreme Court in Okoiti & 3 others v Cabinet Secretary for the National Treasury and Planning & 10 others (Application E029 of 2023) [2023] KESC 69 (KLR) (8 September 2023) (Ruling) . So serious is the non-compliance with court directions that courts, this court included, have struck out pleadings and written submissions for having been filed outside the timelines set. Having established as much, this court finds that in the interest of procedural integrity and fairness to the applicant, it will not take the said affidavit into account in the determination of this matter, and as such, the same is struck out from the record for being filed outside the timelines set by the court and without leave.
Now onto the framed issued issues for determination. Whether the 1 st respondent had jurisdiction under the Anti-Doping Act to hear and determine Anti-Doping Rule Violation proceedings involving the ex parte applicant who claims to be an international-level athlete.
Whether the 2nd Respondent was obligated under the Anti-Doping Regulations and WADA Code to constitute a distinct Hearing Panel (Results Management Panel) for adjudicating the Anti-Doping Rule Violation.
Whether the 2nd Respondent followed the correct procedure under the Anti-Doping Regulations and WADA Code in initiating the proceedings.
Having determined the issue of the 2 nd respondent’s affidavit, this court now proceeds to determine whether the 1 st respondent had jurisdiction under the Anti-Doping Act to hear and determine the Anti-Doping Rule Violation proceedings against the ex parte applicant who claims to be an international-level athlete.
The ex parte applicant challenges the jurisdiction of the 1 st respondent, the Sports Disputes Tribunal, to adjudicate anti-doping charges brought against her. She avers, and it is not contested, that she is an international-level athlete within the meaning of the World Anti-Doping Code and the Anti-Doping Regulations 2020. Her case is that by virtue of her status and the applicable statutory and regulatory frameworks, the Tribunal was divested of jurisdiction to hear and determine alleged Anti-Doping Rule Violations (ADRVs) against her.
Section 31(1) of the Anti-Doping Act expressly limits the Tribunal’s jurisdiction at first instance. It provides as follows:
31. Jurisdiction of Sports Tribunal
(1) The Tribunal shall have jurisdiction to hear and determine cases on-
(a) anti-doping rule violations on national and lower level athletes and athlete support personnel;
(b) anti-doping rule violations on other persons subject to the Anti-Doping Rules;
(c) anti-doping rule violations arising from national and lower level events;
(d) Therapeutic Use Exemptions (TUE) decisions of Anti-Doping Agency of Kenya (ADAK); and
(e) matters of compliance of sports organisations in the first instance and appellate level.
(2) The Tribunal shall be guided by the Code, the International Standards established under the Code, the 2005 UNESCO Convention Against Doping in Sports, the Sports Act (Cap. 223), and the Agency's Anti-Doping Rules, amongst other legal sources.
(3) The Tribunal shall establish its own procedures.
(4) Appeal level disputes involving national and lower level athletes, athlete support personnel, sports federations, sports organisations, professional athletes and other persons subject to the Anti-Doping Rules shall be resolved by the Tribunal—
(a) which shall consist of a panel of three members appointed by the Chairperson of the Tribunal; and
(b) after the panel members have signed a no conflict of interest declaration in form provided by the Agency.
(5) The World Anti-Doping Agency, the International Olympic Committee, the International Paralympic Committee, and the relevant International Federations shall have the right to a second appeal to the Court of Arbitration for Sports (CAS) with respect to the appeal decisions of the Tribunal.
(6) For the avoidance of doubt, the Tribunal shall not have jurisdiction over Appeals involving International Level athletes or arising from the participation in International Events or national crimes related to doping.
This section clearly delineates the scope of the Tribunal’s jurisdiction. It empowers the Tribunal to hear and determine cases relating to ADRVs involving national and lower-level athletes, support personnel , and violations arising from national level events , among other related matters. Critically, Section 31(6) provides as follows:
“For the avoidance of doubt, the Tribunal shall not have jurisdiction over Appeals involving International Level athletes or arising from the participation in International Events or national crimes related to doping.”
While Section 31(6) refers expressly to appeals, it cannot be read in isolation. It is this court’s finding that the section is a clarificatory provision, introduced with the phrase “For the avoidance of doubt,” and is designed to reinforce the substantive jurisdictional boundaries already set out in Section 31(1). To adopt a narrow interpretation, as the Tribunal did, and confine Section 31(6) solely to appellate proceedings, would be to ignore the underlying purpose and structure of the jurisdictional scheme, which clearly excludes international level ADRVs from the remit of the Tribunal at both first instance and appellate levels.
The Tribunal, in its impugned decision, acknowledged the applicant’s status as an international level athlete but nevertheless concluded it had jurisdiction to hear the matter. The Tribunal stated as follows at paragraph 73 of the impugned:
“73. The Panel agrees with the Athlete that she is indeed an International-Level Athlete; it notes that there was some amount of flippancy by the Applicant in referencing her categorization and we decry the flip, flop, neither here, nor there, designation by the Applicant of the Athlete, so that in their Charge Document the Applicant designated the Athlete as a National-Level-Athlete while in their submissions, the Applicant acknowledged her International Level-Athlete status. In the Notice to Charge dated 2 nd September 2024, it was the Applicant’s statement, “TAKE NOTICE that the applicant herein intends to file charges herein against one Kenyan female national level athlete who’s in-competition sample collected on 12 th June, 2024 returned an Adverse Analytical Finding (AFF).”, whereas the Applicant’s own documents on record indicated the given fact, which was that the Applicant itself collected the Urine Sample Out-of-Competition.
74. Thereby, by virtue of her Kenyan nationality, the Athlete fell under the Applicant’s jurisdiction and it behooves the Applicant to know the designation/status of at least its own nationals, (if necessary by liaising with the Athlete’s IF), as this is crucial information for a first instance adjudication panel, to enable it set out the appropriate appeal route under Code Article 13.”
Despite establishing as herein above, it went ahead to reach the conclusion that it had jurisdiction by interpreting Section 31(6) as applying only to appeals, and reasoned that since the instant proceedings were at first instance, the Tribunal retained jurisdiction. It went further to suggest that jurisdiction should be interpreted “beyond a narrow reading of the law,” and invoked policy considerations such as the need to ensure that “no athlete slips through the cracks” in the global anti-doping framework.
This line of reasoning is flawed. Jurisdiction is not founded on policy preferences or equity; it must flow from clear statutory authority. As the applicant rightly submits, the Tribunal’s interpretation renders Section 31(1) impractical insofar as it clearly limits the Tribunal’s mandate to national and lower-level athletes and events. If the Tribunal were to have original jurisdiction over international athletes, Section 31(1) would have stated so expressly. The Tribunal’s reading collapses the distinction between national and international regimes, a distinction that is fundamental to the structure of the World Anti-Doping Code and the national anti-doping framework.
In this case, it is not in dispute that the Applicant is an international-level athlete subject to the jurisdiction of the International Federation and the World Anti-Doping Agency (WADA). The Applicant also relies on Article 8 of the Anti-Doping Regulations, 2020, which provides that for any person who is asserted to have committed an Anti-Doping rule violation, ADAK shall provide a fair hearing within a reasonable time by a fair, impartial, and operationally Independent hearing panel in compliance with the Code and the International Standard for Results Management.
Article 8.1.1.1 of the 2020 Regulations provides that it is the 2 nd Respondent , not the Tribunal, that is mandated to establish such a hearing panel for adjudication. Article 8.3 of the International Standard for Results Management further reinforces that this hearing panel must be legally competent, independent and appropriately composed, a role the 1 st respondent does not play in relation to international athletes.
The ADRV proceedings, which are the subject of this judicial review application, stemmed from an ou
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