Oliver Collins Wanyama v Engineers Board of Kenya [2019] KECA 993 (KLR)
The bottom line
#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
#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 because the High Court made no positive order capable of being stayed or enjoined
- 2.Whether the intended appeal is arguable
- 3.Whether, if the orders sought are not granted, the intended appeal will be rendered nugatory
Key legal issues
#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
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.
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.
Whether the intended appeal is arguable
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.
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.
Whether the appeal will be rendered nugatory if the injunction is not granted
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.
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.
Legal principles established
#- 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
#- 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.The applicant to lodge the appeal within 30 days from the date of the ruling
- 3.Costs in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Misc Application No. 108 of 2018
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
- Consolidated with
- Heard back-to-back with Civil Application No. 321 of 2018 (subject of a separate ruling)
Relief refused
#Order of stay of execution
The judicial review application having been dismissed, there is 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 exercise of this jurisdiction, the Court by dint of rule 41 exercises an original, independent and discretion jurisdiction.
[14] From the foregoing, it is clear that Rule 5 (2) (b) is a procedural innovation designed to empower the Court to entertain an interlocutory application for preservation of the subject matter of the appeal in order to ensure the just and effective determination of appeals.
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.
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.
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 judgment quotes the disciplinary finding as "capable (we believe the word is "culpable") of professional misconduct" and the Court does not expressly resolve whether the word was 'capable' or 'culpable', leaving the actual finding linguistically ambiguous on the record.
The respondent is recorded both as urging that no stay/injunction is possible absent a positive order, and the Court nonetheless granting an injunction; the Court distinguishes rather than disapproves the positive-order line of cases, but does not overrule them, which may create tension in the jurisprudence.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- United Millers Limited v Kenya Bureau of Standards & 5 others [2019] KECA 378 (KLR)[2019] KECA 378 (KLR)26 Aug 2019applied
Cite this brief
#Cite this brief
Caselaw, "Oliver Collins Wanyama v Engineers Board of Kenya [2019] KECA 993 (KLR)", 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.