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Court of AppealDismissedCivil Application E131 of 2022· [2022] KECA 1183 (KLR)

Engineers Board of Kenya v Gibbs Africa Limited

Court of Appeal
21 October 2022
HOHannah OkwenguHOH. A. OmondiJMJ. Mativo
1,497 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to pause a High Court order requiring Gibbs Africa's registration as an engineering firm, because reversing it later would be easy.

What this practically means

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Executive summary

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The Engineers Board of Kenya moved the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules for stay of execution of a High Court judicial review judgment (A. K. Ndungu, J., 24th March 2022) which, in Judicial Review No. E1145 of 2020, issued an order of mandamus commanding the registration of Gibbs Africa Limited as an engineering consulting firm. The Board argued that the judgment compelled it to act contrary to the Engineers Act and Engineers Rules, propagating illegality, and that the Registrar risked contempt proceedings. The respondent countered that the orders were reversible, that it was suffering irreparable harm through disqualification from bids and risk to ongoing infrastructure projects, and that the contempt threat arose from the Board's own disobedience of an interim stay order of 2nd December 2020. Applying the settled twin test - arguability and nugatory value - the court found the appeal arguable, since whether the respondent met the statutory registration requirements was an issue of fact as well as law. However, on the second limb, the court held that the orders were reversible, including by deregistration, so the appeal could not be rendered nugatory; the Board also demonstrated no hardship, its contempt exposure stemming from its own non-compliance. The application was dismissed with costs to the respondent. The decision binds subordinate courts and tribunals on the Rule 5(2)(b) test but does not disturb the High Court judgment, which remains intact pending any substantive appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

The appeal was arguable because whether the respondent met the statutory registration requirements under the Engineers Act and Rules is an issue of fact as well as law.

Reasoning

The court found that the question whether the respondent satisfied the specific statutory sections for registration as an engineering consulting firm raised both factual and legal questions, sufficient to constitute a bona fide arguable issue under the first limb of the Rule 5(2)(b) test.

p. 2
02

Nugatory value of the appeal

Holding

The appeal would not be rendered nugatory because the mandamus orders are reversible; the applicant also failed to show hardship, contempt having arisen from its own non-compliance.

Reasoning

The court weighed the competing hardships. The orders under appeal were reversible, including by deregistration, so the appeal could not be rendered nugatory. The applicant showed no damage; the contempt threat stemmed from its own disobedience of the interim order of 2nd December 2020. The second limb therefore failed.

p. 3

Legal principles established

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  • To succeed on a Rule 5(2)(b) application the applicant must establish both that the appeal is arguable and that it will be rendered nugatory if stay is not granted; failure on either limb is fatal.
  • An arguable appeal is not one that would necessarily succeed but one that merits consideration by the court; even one bona fide arguable issue satisfies the first limb.
  • Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible, or if not, whether damages will reasonably compensate the aggrieved party.

Court orders

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  1. 1.The application for stay of execution dated 21st April 2022 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Engineers ActSection 20(1)(a)(b)
  • Engineers RulesRule 5(2)(c)(iii)

Cases cited (4)

  • Wasike vs Swala
    [1984] 591

    An arguable appeal is not one that would necessarily succeed but one that merits consideration; not idle or frivolous.

  • Kenya Tea Growers Association & Another v Kenya Plantation and Agriculture Workers Union
    (2012) eKLR

    Even one bona fide arguable issue will satisfy the first limb of the Rule 5(2)(b) test.

  • Reliance Bank Limited vs Norlake Investment Limited
    [2002] 1 EA 227

    Factors rendering an appeal nugatory are considered within the circumstances of each case, weighing conflicting claims of both sides.

  • African Safari Club Limited vs Safe Rentals Limited
    Nai. Civ. App. 53/2010

    Where hardships are almost equal, the court should pursue the overriding objective and balance the hardships of both parties.

On appeal from
High Court of Kenya at Nairobi
HC. Judicial Review No. E1145 of 2020
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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Cite this brief

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Cite this brief

Caselaw, "Engineers Board of Kenya v Gibbs Africa Limited", Case Analysis (2022). Civil Application E131 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1183/eng@2022-10-21

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