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Court of AppealPartially AllowedCivil Application No. 322 of 2018· [2019] KECA 993 (KLR)

Oliver Collins Wanyama v Engineers Board of Kenya

Court of Appeal
5 February 2019
2,739 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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The Court of Appeal temporarily stopped an engineer's two-year licence suspension, confirming Kenyan courts can grant injunctions on appeal even after a dismissal below.

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 (Ouko, P, Sichaale and Odek, JJ.A) on an application under Rule 5(2)(b) of the Court's Rules by Oliver Collins Wanyama, director of Interphase Consultants Limited, seeking an injunction and stay of execution pending an intended appeal against Mativo, J.'s dismissal (29 October 2018) of his judicial review application challenging the Engineers Board of Kenya's disciplinary decision. Following the collapse of Sigiri Bridge in June 2017, a Board committee attributed the failure to wrong sequencing of concreting and inadequate supervision; the Board found the applicant guilty of professional misconduct, suspended his licence for two years and gazetted removal of his name from the register. The High Court declined to quash that decision. Before the Court of Appeal, the respondent argued the application was incompetent because the dismissal below was a negative order incapable of being stayed, and that injunctions could not be granted where none was sought in the High Court. The Court rejected this procedural objection, holding that under Rule 5(2)(b) read with Rule 41 it exercises an original, independent and discretionary jurisdiction similar to that of a court of first instance, and that an injunction under the rule need not have been sought below. The Court found the intended appeal arguable on whether the applicant was to blame for the bridge collapse and held the two-year suspension would render the appeal nugatory. It granted a temporary injunction stopping the suspension pending appeal, directed that the appeal be lodged within 30 days, and ordered costs in the appeal. The stay limb was refused because the dismissal below constituted a negative order incapable of being stayed.

Key legal issues

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01

Whether an injunction under Rule 5(2)(b) may be granted where no positive order was made below and where no injunction was sought in the High Court

Holding

Yes. The Court exercises original, independent discretionary jurisdiction under Rule 5(2)(b) read with Rule 41; it may grant an injunction even where the decision below was a dismissal (a negative order) and even though the injunction was not sought below, though reliefs sought must be specifically prayed for in the motion.

Reasoning

The respondent's procedural objection relied on Shimmers Plaza and the positive-order line of cases. The Court distinguished Shimmers Plaza: there the relief was refused because no specific prayer for injunction appeared in the motion, not because relief was unavailable. Rule 41 empowers the Court to entertain stay, injunction and stay-of-proceedings applications notwithstanding that no such application was first made to the superior court, exercising original rather than appellate discretion.

p. 3
02

Whether the intended appeal is arguable

Holding

Yes. The central issue - whether the applicant was to blame for the bridge collapse and whether the Judge was justified in not quashing the suspension - is an arguable question satisfying the first limb.

Reasoning

The draft memorandum raised grounds including absence of a complaint under section 53 of the Engineers Act, the respondent acting as investigator, prosecutor and judge, unreasonableness of the suspension, and lack of a fair hearing. The Court found the central issue not idle but arguable, without deciding its merits.

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03

Whether the appeal will be rendered nugatory if the injunction is not granted

Holding

Yes. The applicant would serve the two-year suspension or a substantial part of it before the appeal is heard, losing his livelihood and clients, exposing him to incalculable suffering.

Reasoning

The nugatory limb was satisfied because the suspension was for a fixed two-year term and the intended appeal could not be heard within that period. The purpose of a Rule 5(2)(b) injunction is preservation of the subject matter of the appeal to ensure its just and effective determination, which here required halting the suspension pending appeal.

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Legal principles established

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  • Under Rule 5(2)(b) the Court exercises an original, independent and discretionary jurisdiction, similar to that of a court of first instance, and may grant an injunction even where no similar relief was sought or granted below.
  • An order of stay is unavailable where the decision below is a negative order (dismissal), but an injunction may issue instead to preserve the subject matter of the appeal.
  • The Court under Rule 5(2)(b) can only make three orders: stay of execution, stay of further proceedings, and an injunction order, and cannot create or grant a prayer not sought in the notice of motion.
  • Whether the application under Rule 5(2)(b) is for stay of execution, injunction, or stay of further proceedings, the applicable principles are the same.

Court orders

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  1. 1.A temporary order of injunction in terms of prayer 4 of the motion dated 7th November 2018, so that pending determination of the appeal the suspension of the applicant's licence is temporarily stopped
  2. 2.The applicant to lodge the appeal within 30 days from the date of the ruling
  3. 3.Costs in the appeal
On appeal from
High Court
Misc Application No. 108 of 2018
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 (1)

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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, "Oliver Collins Wanyama v Engineers Board of Kenya", Case Analysis (2019). Civil Application No. 322 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/993/eng@2019-02-05

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