Court dismisses contempt case against swimming officials over 2023 elections
A swimmer dives into the pool during the national swimming qualifier championship at the Aga Khan Primary, Kisumu on February 02, 2025.
What you need to know:
- The High Court said there was no proof that the officials were aware about existence of court orders barring conduct of the elections.
- Petitioners wanted the four members of the stabilization committee to be summoned in court to explain why the orders were breached.
The High Court has thrown out a contempt case against four officials of Kenya Aquatics Stabilisation Committee over alleged disobedience of an order stopping the contentious elections held in July 2023 for the executive board officials.
Justice Chacha Mwita dismissed the case after finding that there was no proof of contempt or willful disobedience of the court orders.
The judge also said there was no proof that the officials targeted by the contempt application named as Moses Mwase, Jace Naido, Francis Mutuku and Michael Otieno were aware about existence of court orders barring conduct of the elections.
“It has not been sufficiently demonstrated as to who deliberately disobeyed the court order. Contempt proceedings are a serious undertaking because a court exercising this jurisdiction is minded to ensure the orderly functioning of society and the rule of law,” said Justice Mwita.
The contempt application was filed by swimming stakeholders Margaret Ndung’u Mwasha, and Col (Rtd) Conrad Dermot Biltcliffe Thorpe.
“Due to the gravity of the consequences that flow from contempt proceedings, it is proper that the order be served, and the person cited for contempt should have had personal knowledge of that order,” said the judge.
They wanted the four members of the stabilization committee to be summoned in court to explain why the orders issued on March 19, 2021 were breached, and to show cause why they could not be held in contempt of court for alleged wilful disobedience of those orders.
The applicants had also asked for warrants of arrest to be issued against the said officials and an order committing them to civil jail for six months.
According to the petitioners, the High Court issued orders on March 19, 2021 restraining the Kenya Swimming Federation (KSF), its officials, agents, employees or anyone acting on its behalf from inviting applications for election to the federation’s executive board or conducting elections.
The order also barred changes in the leadership of the federation’s Executive Board, pending the hearing and determination of that case.
Violation of the court orders
The petitioners said that in a notice dated June 5, 2023 signed by Moses Mwase, the federation, through the stabilization committee, invited stakeholders for a general meeting scheduled for June 24, 2023 to discuss, among others, an update on Election Roadmap for KSF New Executive Board due on July 8, 2023 at Kasarani Stadium.
The meeting was also for ratification of key decisions, and tabling of revised draft KSF constitution which sought to change KSF’s name to Kenya Aquatics.
The petitioners said that eventually the federation’s name was changed to Kenya Aquatics, despite existence of the orders.
They stated that when they engaged the alleged contemnors regarding the violation of the court orders, they contended that it was World Aquatics that had authorized the elections.
They further stated that they engaged the stabilization committee appointed by World Aquatics in an out-of-court settlement to address the issues pending before court, but it was futile.
In the negotiations, the petitioners shared their proposal for amendments aligning the federation’s proposed constitution with World Aquatics constitution, the Sports Act 2013 and the Constitution of Kenya, 2010.
They said the alleged contemnors frustrated the negotiations and went ahead to disregard the order, thereby committing contempt of court.
However, Justice Mwita said the four people who were said to have disobeyed the order were not made parties to the contempt proceedings.
“There is no evidence that they were served with the application to give them an opportunity to present their case. Taking into account the circumstances of this case and the material placed before this court, I am not satisfied that the petitioners have proved, first, that the order was served on the officials of the KSF and identify who the officials were,” said the judge.
“Contempt being a personal responsibility to be proven, and being an enforcement power of last resort rather than first resort, I am not satisfied that the petitioners have proved contempt of court to the required standard,” he added.