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Court of AppealPartially AllowedCivil Application 263 of 2012· [2013] KECA 387 (KLR)

The Engineers Registration Board v Jessee Waweru Wahome and Others

Court of Appeal
8 March 2013
WKW. KaranjaWilliam OukoW. OukoSKS. Gatembu Kairu
3,561 words in judgment
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The bottom line

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The Court of Appeal paused enforcement of a Kshs.2 billion judgment against the Engineers Registration Board until its appeal is decided.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Karanja, Ouko and Gatembu Kairu, JJA) on an application under Rule 5(2)(b) of the Court of Appeal Rules by the Engineers Registration Board seeking stay of execution of a High Court judgment of 15th October 2012 (Majanja, J) in consolidated Petitions 149 and 207 of 2011. The High Court had declared that the Board's power under Section 11(1)(b) of the Engineers Registration Act to register graduate engineers did not extend to accrediting or approving engineering courses offered by public universities, found violations of the petitioners' rights to fair administrative action and human dignity, ordered mandamus to compel the Board to consider registration applications from graduates of public universities who graduated before 14th September 2012, directed publication of the order and invitations to apply free of charge, and awarded general damages of Kshs.200,000.00 to each petitioner and every qualifying engineering graduate, carrying 12% interest. The Board argued it had an arguable appeal on the interpretation of 'recognize' in Section 11 and on the order of damages in rem to non-parties, and that liability exceeding Kshs.2 billion would render the appeal nugatory. The respondents argued the appeal was not arguable and any hardship was manageable. The court applied the settled twin test from Githunguri and Kagunyi Thande, found the appeal arguable, and, applying the Reliance Bank and Equip Agencies line of authority on colossal sums, held that refusal of stay could cause irremediable damage to a public statutory regulatory body. It granted a stay of execution of the entire judgment and decree pending the intended appeal, with the costs of the application to abide the outcome of the appeal. The decision did not disturb the High Court judgment on the merits; it merely suspended its execution.

Key legal issues

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01

Whether the applicant had an arguable appeal

Holding

Yes. The court found it arguable whether the High Court's interpretation of Section 11 of the Engineers Act was correct and whether the High Court could award general damages in rem to persons who were not privy to the petition.

Reasoning

The court emphasised that at a Rule 5(2)(b) stage it was not hearing the main appeal. It identified two arguable points: the interpretation of 'recognize' in Section 11 concerning the Board's power to register versus accredit engineering courses, and the High Court's order of general damages in favour of non-parties, a matter going to the proper reach of constitutional relief.

p. 6
02

Whether the appeal would be rendered nugatory if stay was not granted

Holding

Yes. The applicant was required to pay an amount in excess of Kshs.2,000,000,000.00, which would cause irreparable loss to a public statutory regulatory body.

Reasoning

Applying Reliance Bank v Norlake Investments, the court noted that although no financial statements were provided, the sum was large by any standard and the applicant was a public statutory regulatory body. As in the Equip Agencies line of authority, refusal of stay where a colossal sum is involved may cause irremediable damage, rendering the appeal futile even if the money were later repaid.

p. 7

Legal principles established

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  • To succeed on an application under Rule 5(2)(b), an applicant must satisfy two requirements: that the appeal or intended appeal is arguable, and that unless the order sought is granted the success of the appeal will be rendered nugatory.
  • Where the amount of money involved in the decree is very large, especially against a public body, there is an uneasiness in refusing a stay, and a refusal may render the success of the appeal nugatory because the damage may be irremediable even if the sum were later repaid.

Court orders

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  1. 1.An order for stay of execution of the Judgment and Decree of the High Court delivered on 15th October 2012 in Nairobi High Court Petition Numbers 149 of 2011 and 207 of 2011 (Consolidated) pending the hearing and determination of the intended appeal from that decision
  2. 2.The costs of the application to abide the outcome of the appeal
On appeal from
High Court of Kenya at Nairobi
Petition Nos. 149 & 207 of 2011 (Consolidated)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "The Engineers Registration Board v Jessee Waweru Wahome and Others", Case Analysis (2013). Civil Application 263 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/387/eng@2013-03-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.