Godfrey Ajuong Okumu v Engineers Board of Kenya [2019] KECA 985 (KLR)
The bottom line
#The Court of Appeal temporarily stopped an engineer's two-year licence suspension, confirming injunctions are available even when the High Court made no order to stay.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an application under Rule 5(2)(b) is incompetent where the court below made no positive order capable of being stayed
- 2.Whether an injunction must first have been sought in the High Court before it can be granted under Rule 5(2)(b)
- 3.Whether the intended appeal is arguable
- 4.Whether the intended appeal will be rendered nugatory if the orders sought are not granted
Key legal issues
#Competence of a Rule 5(2)(b) application where no positive order was made below
The objection fails; although stay is unavailable where the court below dismissed an application (a negative order), the Court may still grant an injunction under Rule 5(2)(b) to preserve the subject matter of the intended appeal.
The Court distinguished the line of authority including Shimmers Plaza, holding that those cases only established that reliefs must be specifically prayed for, not that an injunction must have been sought below. Under Rule 41 the Court exercises original, independent discretion similar to a court of first instance, and may grant injunctions where stay is inefficacious, as in Equity Bank v West Link Mbo.
Arguability of the intended appeal
The central question whether the learned Judge was justified in not quashing the respondent's decision to suspend the applicant is not idle and satisfies the arguability limb.
The Court reviewed the nine grounds in the draft memorandum, centring on whether the respondent acted without a complaint under section 53 of the Engineers Act, acted as investigator, prosecutor and judge, denied the applicant a fair hearing, and on a finding of being merely 'capable' of professional misconduct. It held the issue arguable, satisfying the first limb.
Nugatory value of the intended appeal
The applicant would suffer incalculable suffering, likely serving the two-year suspension or a substantial part of it before the appeal is heard, rendering the appeal nugatory.
The Court accepted that the applicant, an engineer of over forty years standing, would lose his livelihood, clients and standing during the suspension. The purpose of an injunction under Rule 5(2)(b) is preservation of the subject matter of the appeal to ensure its just and effective determination.
Legal principles established
#- An application under Rule 5(2)(b) is not incompetent merely because the court below made no positive order; an injunction may be granted where stay is inefficacious, particularly where the decision below dismissed an application.
- Under Rule 5(2)(b) read with Rule 41, the Court exercises an original, independent and discretionary jurisdiction, and an injunction need not have been sought in the court below.
- Reliefs sought in a Rule 5(2)(b) application must be specifically prayed for in the notice of motion.
Court orders
#- 1.A temporary order of injunction in terms of prayer 4 of the motion dated 7th November 2018, the effect of which is that, pending determination of the appeal, the suspension of the applicant's licence is temporarily stopped
- 2.The applicant to ensure that the appeal is lodged within 30 days from the date of the ruling
- 3.Costs to be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Miscellaneous Application No. 107 of 2018
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the High Court judgment
The judicial review application having been dismissed, there was a negative order incapable of being stayed
Costs
Costs will be in the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result, having satisfied the two principles, the application succeeds. There will be a temporary order of injunction in terms of prayer 4 of the motion dated 7th November, 2018, the effect of which is that, pending determination of the appeal, the suspension of the applicant's licence is temporarily stopped.
This Court in applications brought under Rule 5(2)(b) exercises jurisdiction similar to that of a court of first instance. It can grant and has on many occasions granted an injunction pending the hearing and determination of an appeal or intended appeal primarily in order to preserve the subject matter of the intended appeal
Nowhere did the Court insist that for one to seek an order of injunction under rule 5(2)(b) an injunction must have been sought in the Court below.
An order of stay is not available to the applicant his application for judicial review having been dismissed, giving rise to a negative order that is incapable of being stayed.
The applicant will ensure that the appeal is lodged within 30 days from the date of this ruling. Costs will be in the appeal.
Issues in the judgment
#The coram lists the third judge as ODEK JJ.A in the heading, but the signature block records the name as OTIENO-ODEK; the panel is recorded here as Otieno-Odek per the signature block.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Godfrey Ajuong Okumu v Engineers Board of Kenya [2019] KECA 985 (KLR)", Case Analysis (2019). Civil Application No. 321 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/985/eng@2019-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.