Okumu & another v Engineers Board of Kenya (Civil Appeal 89 & 90 of 2019 (Consolidated)) [2020] KECA 203 (KLR)
The bottom line
#Kenya's Court of Appeal overturned an engineers' suspension for the Sigiri bridge collapse, ruling regulators must make rational decisions, but confirmed their removal for running unregistered firms.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent required a written complaint under section 53 of the Engineers Act before initiating disciplinary proceedings
No. Section 53 must be followed with scrupulous care in disciplinary proceedings, but given the respondent's wide statutory powers under sections 6, 7 and 8, it could act on any complaint however communicated, and could even act sua sponte; the direction by the Permanent Secretary and the public notoriety of the collapse sufficed.
The court read section 53 alongside the respondent's broad regulatory mandate, including site inspection and establishment of committees. The bridge collapse was a public matter reported in the media, and the Permanent Secretary directed the investigation. The ad hoc Inquiry Committee was properly constituted with co-opted experts under section 8(3). No prejudice was shown, and a belated complaint about committee membership having fully participated was too late.
The proper scope of judicial review post-2010 Constitution and the Fair Administrative Action Act
Judicial review is no longer confined to process; in appropriate cases the court may evaluate the merits of an administrative decision. The High Court erred in refusing to examine the contracts and the COVEC admission on the ground that this would be merit review.
Tracing the evolution from Law Reform Act certiorari/prohibition through Article 47 and section 7(2) of the Fair Administrative Action Act, and following Suchan Investment, Communication Commission of Kenya and Super Nova Properties, the court held that grounds such as proportionality, reasonableness and relevant considerations invite merit review. However, where facts are disputed, courts should be reluctant, and cannot substitute their own decision.
Whether the finding that the appellants caused the collapse by defective design and failure to supervise was rational and proportionate
No. Both the committee's report and the undisputed material showed the immediate cause was the construction (wrong sequencing of concreting), not the design; neither the MOU, the subsequent agreement nor the FIDIC contract obliged the appellants to supervise. The decision failed the rationality and proportionality test.
The court examined the MOU, the subsequent design-only agreement, and the FIDIC contract between KeRRA and COVEC, concluding that supervision rested with KeRRA's representative and COVEC under the design-build-maintain model. COVEC had unequivocally admitted responsibility in writing. On uncontroverted evidence that the appellants were fully paid and the bridge was completed on their original designs, sanctioning them for design failure and non-supervision was irrational.
Whether the appellants operated BAC and Interphase without registration contrary to section 29(a)(vi) of the Engineers Act
Yes. Both appellants admitted the failure to register their firms, offering no reasonable justification, so the removal of their names from the register on that ground was upheld.
BAC admitted it was unaware of the mandatory registration requirement and Interphase had merely commenced registration. The charge arose under section 29(a)(vi), which permits removal of a person who causes or permits an unregistered body corporate to practise as a firm. The court held this was the only basis on which removal from the register could stand, not professional misconduct under section 45(1).
Whether the word 'capable' in the decision letter vitiated the finding of professional misconduct
No. The finding of guilt was in the committee's report; the letter merely communicated it, and the respondent plainly meant 'culpable'.
The appellants built a ground of appeal on the phrase 'capable of professional misconduct'. The court held the word had no effect on the substance of the finding, which was contained in the report finding the appellants guilty of professional misconduct. The letter was only the medium of communication, so nothing turned on that ground.
Legal principles established
#- With the Constitution of 2010 and the Fair Administrative Action Act, the scope of judicial review has expanded so that, in appropriate cases, a court may evaluate the merits of an administrative decision, including on grounds of irrationality, unreasonableness, proportionality and failure to consider relevant considerations under section 7(2) of the Act
- A regulatory body empowered by sections 6 and 7 of the Engineers Act may commence disciplinary proceedings without a written complaint under section 53, including on its own motion or on a complaint however communicated
- A reviewing court may not substitute its own decision for that of the administrator even where it undertakes merit review under the Fair Administrative Action Act
- Where the facts on which a party seeks merit review are disputed, judicial review being conducted on affidavit evidence, the court should be reluctant to undertake a merit review
- It does not automatically follow that the firm that designs a project must supervise the works to completion; the extent of design and supervision obligations depends on what the parties contract
Court orders
#- 1.The appeal partially succeeds and the judgment of 29th October, 2019 is set aside to the extent that it upheld the suspension of the appellants for professional misconduct
- 2.The decision to remove the appellants' names from the register for failing to register BAC and Interphase with the respondent is upheld, until they comply with section 20 of the Engineers Act
- 3.Half the costs of the appeal and in the High Court are awarded to the appellants
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over the High Court's dismissal of a judicial review application (specific constitutional/statutory provision not expressly stated in the judgment)
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.
- Kalmar Finland Oy v Public Procurement Administrative Review Board & 4 others[2026] KECA 1500 (KLR)24 Jul 2026applied
Cite this brief
#Cite this brief
Caselaw, "Okumu & another v Engineers Board of Kenya (Civil Appeal 89 & 90 of 2019 (Consolidated)) [2020] KECA 203 (KLR)", Case Analysis (2020). Two consolidated appeals against the judgment of Mativo, J. delivered 29th October 2019 (individual appeal numbers not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/203/eng@2020-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.