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Supreme CourtPartially AllowedApplication 39 of 2019 & Petition 4 of 2016 (Consolidated)

Martin Wanderi & 106 others v Engineers Registration Board & 8 others; Egerton University & another (Interested Parties)

Supreme Court of Kenya
15 May 2020
5,203 words in judgment
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AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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The Supreme Court can review its own rulings if a key law was concealed, as happened in this engineering case.

What this practically means

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The Engineers Registration Board asked the Supreme Court to change a 2018 order forcing it to register everyone as 'Engineers.' The Board found that some people were Engineering Technologists or Technicians, covered by a different law that was never mentioned in the original case. The Supreme Court agreed this was a serious oversight. It changed its order: qualified engineers go to the Engineers Board, while technologists and technicians go to the separate Technologists Board. This shows the Court can fix its decisions when important laws are hidden from it.

Executive summary

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This ruling concerns an application by the Engineers Registration Board (the Board) to review the Supreme Court's judgment of 17th July 2018. In that judgment, the Court had ordered the Board to register the petitioners and 2nd interested parties as Engineers under the Engineers Registration Act within 21 days. The Board filed the review application on 20th December 2019, arguing that it could not fully implement the judgment because some of the petitioners held Bachelor of Industrial Technology (BIT) degrees, qualifying them as Engineering Technologists or Technicians under the Engineering Technology Act, No. 23 of 2016, not as Engineers under the Engineers Act. The Board contended that registering such persons as Engineers would breach the law. The petitioners opposed the application, arguing it was filed inordinately and that the judgment had already been implemented. The Court, applying its earlier decision in Fredrick Otieno Outa v Jared Odoyo Okello & 3 Others, held that while the Supreme Court generally has no jurisdiction to review its own decisions beyond the Slip Rule, it may exercise inherent powers to review in exceptional circumstances. The Court found that the non-disclosure of the Engineering Technology Act during the original hearing constituted an exceptional circumstance under principle (iv) of Outa, as the judgment was rendered without addressing this relevant statutory provision. The Court allowed the review, varying its earlier order to require the Board to register only those petitioners qualified as Engineers under the Engineers Act, while directing that those who are Engineering Technologists or Technicians be registered by the Engineering Technologist Registration Board. The Court declined to expand the Outa principles as requested by the Board. Each party was ordered to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the circumstances of the case are so exceptional as to warrant a review of the Judgment of 17th July 2018.
  2. 2.Whether the Applicant has met the principles for review as set out in Fredrick Otieno Outa v Jared Odoyo Okello & 3 Others [2017] eKLR.
  3. 3.Whether the principles in Outa should be expanded to include 'apparent errors of law and of fact, inability to implement a Judgment without breaching law and public interest' as further grounds for review.
  4. 4.Whether the Application was filed inordinately and should be dismissed for that reason.

Key legal issues

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01

Whether the Supreme Court has jurisdiction to review its own judgment under Rule 20(4) of the Supreme Court Rules.

Holding

The Supreme Court has no jurisdiction to review its own decisions beyond the Slip Rule under Section 21(4) of the Supreme Court Act, but it may exercise inherent powers to review in exceptional circumstances as defined in Fredrick Otieno Outa.

Reasoning

The Court reiterated its holding in Fredrick Otieno Outa that Rule 20(4) cannot confer jurisdiction to review beyond the Slip Rule because neither the Constitution nor the Supreme Court Act explicitly confers such power. However, the Court has inherent power to review in exceptional circumstances limited to four specific grounds: fraud, nullity, mistaken belief of consent, or judgment based on a repealed or concealed statutory provision.

02

Whether the non-disclosure of the Engineering Technology Act, No. 23 of 2016 constitutes an exceptional circumstance warranting review under the Outa principles.

Holding

Yes, the non-disclosure of the Engineering Technology Act, which created a separate registration regime for engineering technologists and technicians, was an exceptional circumstance under principle (iv) of Outa because the judgment was rendered without addressing this statutory provision.

Reasoning

The Court found that the Engineering Technology Act was not brought to its attention during the original hearing. This Act created a distinct registration framework for engineering technologists and technicians, separate from graduate engineers under the Engineers Registration Act. The Court's original order for registration of all petitioners as 'Engineers' under the Engineers Registration Act did not address this dichotomy. The Court held that allowing registration of technologists and technicians as engineers by judicial fiat would not be in the interests of justice and would require the Board to flout the law.

03

Whether the application for review was filed inordinately and should be dismissed for delay.

Holding

The delay was understandable and excusable because the Applicant took time to implement the judgment and only sought review after encountering difficulties.

Reasoning

The Court noted that the Applicant took steps to implement the judgment, including issuing certificates and inviting applications, before realizing that some petitioners held Bachelor of Industrial Technology degrees rather than engineering degrees. These implementation actions took time, making the delay excusable.

Legal principles established

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  • The Supreme Court has inherent power to review its own judgments in exceptional circumstances, such as fraud or a concealed law.
  • Non-disclosure of a relevant statute that would have materially affected the outcome is an exceptional circumstance for review.
  • A court cannot issue an order that compels a party to violate an existing Act of Parliament.
  • The time taken to genuinely implement a court order can excuse a delay in filing a review application.
  • The categories of exceptional circumstances for review are limited but the Court retains discretion to act in the interests of justice.

Court orders

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  1. 1.The Notice of Motion dated 17th December 2019 is hereby allowed.
  2. 2.Order No.(b)(3) in the Judgment dated 17th July 2018 is hereby reviewed and shall now read as follows: 'An order of Mandamus do hereby issue directing the Engineers Registration Board to register such Petitioners and 2nd Interested Parties, as are qualified as Engineers, under the Engineers Act forthwith. Such Petitioners and 2nd Interested Parties as are Engineering Technologists and Technicians shall be registered as Technologists and Technicians by the Engineering Technologist Registration Board and the Engineers Registration Board shall transmit this order to that Board for implementation forthwith. In default, the said Petitioners and Interested Parties shall be at liberty to apply to this Court for any appropriate orders for enforcement thereof.'
  3. 3.Such Petitioners and Interested Parties as are Engineering Technologists and Technicians shall not be the beneficiaries of Orders Nos.(b) 1, 2, and 4 as well as (c) of the said Judgment.
  4. 4.Each Party shall bear its own costs of the present Application.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Supreme Court of Kenya
Petition No. 19 of 2015
Jurisdiction invoked
Rule 20(4) of the Supreme Court Rules, 2011 and Article 159(2) of the Constitution

Relief refused

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Expansion of the principles in Fredrick Otieno Outa to include 'apparent errors of law and of fact, inability to implement a Judgment without breaching law and public interest' as further grounds for review.

The Court found that the existing principle (iv) in Outa applied to the Motion and saw no reason to depart from or create additional principles.

Costs

Each Party shall bear its own costs of the present Application.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Notice of Motion dated 17th December 2019 is hereby allowed.
p. 16 Disposition of the review application
Consequently, Order No.(b)(3) in our Judgment dated 17th July 2018 is hereby reviewed and shall now read as follows: 'An order of Mandamus do hereby issue directing the Engineers Registration Board to register such Petitioners and 2nd Interested Parties, as are qualified as Engineers, under the Engineers Act forthwith. Such Petitioners and 2nd Interested Parties as are Engineering Technologists and Technicians shall be registered as Technologists and Technicians by the Engineering Technologist Registration Board and the Engineers Registration Board shall transmit this order to that Board for implementation forthwith.'
p. 16 Revised order for registration
In addition, such Petitioners and Interested Parties as are Engineering Technologists and Technicians shall not be the beneficiaries of Orders Nos.(b) 1, 2, and 4 as well as (c) of our said Judgment.
p. 16 Exclusion of technologists and technicians from certain benefits
Each Party shall bear its own costs of the present Application.
p. 16 Costs order
We hold that as a general rule, the Supreme Court has no jurisdiction to sit on appeal over its own decisions, nor to review its decisions, other than in the manner already stated in paragraph (90) above. However, in exercise of its inherent powers, this Court may, upon application by a party, or on its own motion, review, any of its Judgments, Ruling or Orders, in exceptional circumstances, so as to meet the ends of justice.
p. 10 Jurisdiction to review own decisions
The existence of the Engineering Technology Act No.23 of 2016 was not brought to the attention of this Court at the time it rendered its Judgment and how its enactment affected implementation of Section 11 of the Engineers Registration Act Cap.530 which was the operative law at all material times. In our view, that non-disclosure is now an important consideration on whether to grant a review or not.
p. 15 Non-disclosure of statute as exceptional circumstance

Key timeline

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2016
Engineering Technology Act No. 23 of 2016 is enacted, creating a separate registration regime for technologists and technicians.
2018-07-17
Supreme Court issues judgment ordering the Engineers Registration Board to register all petitioners as Engineers.
2019-12-17
Engineers Registration Board files application to review the judgment.
Ruling Date
Supreme Court partially allows the review, varying the order to direct Technologists and Technicians to the Engineering Technologist Registration Board.

Practical implications

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For lawyers

New Grounds for Supreme Court Review

The Supreme Court confirmed that failing to disclose a relevant statute is an exceptional circumstance under the Outa principles, warranting a review of its own judgment. Lawyers must now conduct exhaustive statutory searches before the Supreme Court, as non-disclosure of a material law can later unravel a final judgment. This ruling provides a specific, actionable pathway for review applications where a key statute was overlooked.

For businesses

Clarity on Professional Registration

Businesses hiring engineering professionals must now verify the specific registration body for their employees. The ruling clearly separates 'Engineers' (registered by the Engineers Registration Board) from 'Engineering Technologists and Technicians' (registered by the Engineering Technologist Registration Board). Relying on a single registration for all roles could expose a business to regulatory risk. Ensure your HR and compliance teams understand this legal distinction.

For individuals

Know Your Correct Registration Board

If you are an engineering professional, your qualification determines which board registers you. Graduate Engineers must register with the Engineers Registration Board. Engineering Technologists and Technicians must register with the Engineering Technologist Registration Board. This ruling prevents the Engineers Board from being forced to register everyone as an 'Engineer'. Check your degree or diploma to ensure you apply to the correct board for your professional license.

Frequently asked questions

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Can the Supreme Court of Kenya change its own decisions?+

Yes, but only in very rare cases. The Court can review its own rulings if the judgment was obtained by fraud, if the Court lacked the power to hear the case, or if a key law was hidden from it. This case shows that failing to tell the Court about a relevant Act is a valid reason for a review.

What is the difference between an Engineer and an Engineering Technologist in Kenya?+

An Engineer is a university graduate registered under the Engineers Act. An Engineering Technologist or Technician is registered under the separate Engineering Technology Act. This Supreme Court ruling confirmed they must be registered by different boards and cannot be treated as the same profession.

What is the Fredrick Otieno Outa case in Kenya?+

The Outa case is the leading Supreme Court decision that sets the strict rules for when the Court can review its own judgments. It limits reviews to exceptional situations like fraud, nullity, or a judgment based on a hidden or repealed law. The Engineers Registration Board case applied these exact rules.

How long do I have to apply for a review of a Supreme Court judgment in Kenya?+

You must act promptly. However, this ruling shows that the time you spend genuinely trying to obey the original court order can excuse a delay. The Board took time to implement the judgment before realizing it couldn't, and the Court accepted this as a valid reason for the delay.

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, "Martin Wanderi & 106 others v Engineers Registration Board & 8 others; Egerton University & another (Interested Parties)", Case Analysis (2020). Application 39 of 2019 & Petition 4 of 2016 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/44/eng@2020-05-15

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