Challenging Non-Selection to a Kenyan National Team: The Legal Process

An athlete left out of a national team or squad often assumes there is nothing to be done: selection is a coach’s call, and coaches’ calls are final. Under Kenyan law that assumption is wrong. The Sports Act, 2013 makes non-selection for a Kenyan team or squad a distinct category of dispute that the Sports Disputes Tribunal (SDT) has express jurisdiction to hear. This is separate from, and should not be confused with, a dispute about who wins a federation election or a general grievance about how a sport is governed. It is a specific, statutory right to have a selection decision tested, and any academy, club, federation or athlete operating in competitive sport in Kenya should understand how it works.

The Statutory Basis: Section 58 of the Sports Act

Section 58 of the Sports Act sets out what the Sports Disputes Tribunal determines. Among the categories listed is, in the Tribunal’s own words, “appeals against decisions made by national sports organisations… including appeals against not being selected for a Kenyan team or squad.” This sits alongside, but is listed distinctly from, appeals against disciplinary decisions by a national sports organisation, other sports disputes referred by agreement of the parties, and appeals from decisions of the Sports Registrar. The drafting matters: Parliament did not leave non-selection to be argued as a generic “sports dispute.” It named it specifically, which is what gives an aggrieved athlete a clear jurisdictional hook to bring the matter before the Tribunal rather than being told the issue is purely a selectorial or technical judgment beyond legal reach.

What a Non-Selection Appeal Can and Cannot Achieve

It is important to be realistic about what this jurisdiction does. The Tribunal is not a substitute selection panel, and a challenge is unlikely to succeed simply because an athlete believes they are better than whoever was picked. What the Tribunal can examine is whether the selection process itself was conducted properly: whether the criteria the federation had published or promised to apply were actually applied, whether the process followed the federation’s own constitution, selection policy or eligibility rules, whether the athlete was given whatever notice or opportunity to be heard those rules require, and whether the decision was affected by bias, an improper motive, or a factor that had nothing to do with sporting merit. In other words, the focus is on process and consistency with the federation’s own rules, much as a court reviewing an administrative decision would look at legality and fairness rather than re-marking the selectors’ homework.

Who Can Bring the Case and Against Whom

A non-selection appeal under section 58 is brought against the national sports organisation, or umbrella national sports organisation, responsible for the team or squad in question, since the Tribunal’s jurisdiction under this head is expressly tied to decisions of those bodies. This means the starting point for any athlete is the federation’s own constitution and selection criteria or policy, since the Tribunal will look to see whether an appeal to it was contemplated by, and consistent with, those internal rules. Many federations also have an internal appeal or grievance step before a matter can go further; where that exists, it is generally sensible to use it first, both because it may resolve the issue faster and because a Tribunal (and later a court, on judicial review) will expect internal remedies to have been tried before external ones. Timing is critical in every case of this kind, since a squad is usually named for a specific competition with a fixed date, and a dispute that drags on risks becoming academic once the event has passed.

How This Differs From an Election Dispute or a General Governance Complaint

Non-selection appeals are sometimes lumped together with other Tribunal work, but they are legally distinct from two other common categories. A federation election dispute, where a candidate challenges the conduct or outcome of an internal election, engages different rules, different evidence (voting records, eligibility of candidates and voters, compliance with the federation’s electoral code) and often different urgency; our separate guide to contesting a sports federation election before the SDT covers that process. A general governance complaint, about how a federation is run, financed or regulated, is a broader question that may or may not fall within the Tribunal’s jurisdiction at all, depending on whether it is framed as a specific appealable decision. Treating a non-selection grievance as if it were either of these can mean pleading the wrong facts, missing the right procedural step, or appealing to the wrong forum, which is why the statutory language in section 58 singling out non-selection as its own head of jurisdiction is worth taking seriously.

Beyond the Tribunal: What Happens if the SDT Gets It Wrong

A Tribunal decision on a non-selection appeal is not the absolute end of the road. Because the Sports Act does not make Tribunal decisions final and does not create a separate right of appeal to the High Court, a party who believes the Tribunal itself acted unlawfully, unfairly or irrationally can seek judicial review of the Tribunal’s decision under the Fair Administrative Action Act, 2015 and Article 47 of the Constitution. That is a narrower remedy again, focused on the fairness and legality of the Tribunal’s own process, and it comes with its own procedural requirements, including exhausting other available remedies first. Our companion piece on taking a Sports Disputes Tribunal decision to the High Court explains that route in detail.