Engineers Board of Kenya v Gibbs Africa Limited

4. In opposing the application, the respondent states that on 10th November, 2020; it received a letter from the applicant dated 2nd November, 2020; declining the application for registration as an Engineering Consulting Firm. As a result of this denial, the respondent led an application, and a ruling was given on 2nd December, 2020; with the court granting stay of the decision of the applicant’s letter pending the hearing and determination of the substantive application. Despite the stay orders, the applicant went ahead to publish a list of registered Engineering Consultation Firms failing to publish the respondent’s name. 5. Subsequently, judgment in the substantive motion was delivered on 24th March, 2022 in favor of the respondent, and if the stay sought is granted, then the respondent stands to suer irreparable hardship while waiting determination of the appeal as the on-going infrastructure projects being undertaken by the respondent are at risk of non-completion and the respondent stands to suer as the respondent’s bids will continue to be disqualied on account of lack of registration; that the penal notice issued by the respondent is as a result of disobedience of a lawful order of the court of 2nd December, 2020; by the applicant staying the refusal by the applicant to register the respondent; that the applicant has no arguable appeal and that the appeal will not be rendered nugatory if stay is not granted as the orders issued are reversible; and the applicant has not demonstrated the hardship it will suer should stay not be granted and as such no prejudice will be occasioned. 6. In determining whether an applicant has satised the requirements necessary for granting an order for stay of execution, this Court has stated that whether it be an application for injunction, stay of execution or stay of proceedings the applicable principles are the same. To succeed in an application in 5 (2) (b) the applicant has to establish that; i. The appeal is arguable. ii. The appeal is likely to be rendered nugatory if the stay is not granted and appeal succeeds. 7. In the case of Wasike vs Swala [1984] 591 this Court held that an arguable appeal is not one that would necessarily succeed but one that merits consideration by the court. Also, an arguable appeal is one that is not idle and/or frivolous. 8. The gist of this application is that High Court allowed the respondent’s application, the sum eect being that the respondent be registered as an engineering consulting rm in contravention of the Engineer’s Act, 2011 and the Engineers Rules 2019; and the applicant contends that the implementation of the judgment propagates an illegality. 9. Our perusal of the pleadings, the issue whether or not the respondent met the statutory requirements under the specic Sections of the Engineer’s Act 2011 and the Engineer’s Rules 2019 and we consider this to be an issue of fact as well as law. We hold the view that this is an arguable point. [See Kenya Tea growers Association & Another v Kenya Plantation and Agriculture Workers Union (2012) eKLR where this Court held that even one bona de arguable issue will satisfy this rst limb]. This Court is therefore satised that the appeal is arguable. 10. The second limb is whether the appeal will be rendered nugatory should the application not be granted, and this Court has held in the case of Reliance Bank Limited vs Norlake Investment Limited [2002]1 EA 227 that the factors which render an appeal nugatory are to be considered within the circumstances of each case and in so doing the court is bound to consider the conicting claims of both sides. In the case of African Safari Club Limited vs Safe Rentals Limited Nai. Civ. App. 53/2010 this Court held; “ …with the above scenario of almost equal hardship by the parties, it is incumbent upon the court to pursue the overriding objective to act fairly and justly…to put the hardships of both https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1183/eng@2022-10-21 2

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parties on scale… we think that the balancing act is in keeping with one of the principles aims of the oxygen principle of treating both parties with equality or placing them on equal footing in so far as is practicable.” 11. In short, the court is to decide which party’s hardship is greater. With that in mind, if the applicant’s prayer for stay of execution is denied and the appeal eventually succeeds, the appeal cannot be rendered nugatory as, the orders can be reversed, and the respondent deregistered. The respondent contends that the applicant herein ignored the interim ruling of 2nd December, 2020; granting stay and went on ahead to publish a list of rms leaving out the respondent and the said action was very intentional. 12. We are in agreement with the respondent that it will suer irreparable harm as it continues to be disqualied from projects due to lack of registration; it is not able to complete the projects it currently has; and is at risk of these projects being canceled and/or taken away from them. 13. The applicant on the other hand argues that should stay not be granted, then other Engineering Consulting Firms will take advantage and le suits to be registered by the applicant Board without having fullled the statutory obligations under both the Engineer’s Act and Engineer’s Rules. Whether or not an appeal will be rendered nugatory depends on whether what is sought to be stayed if allowed to happen will be reversible, or if it is not reversible whether damages will reasonably compensate the aggrieved party. 14. The applicant has not shown any hardship or damage that will be suered; as a matter of fact, the penal notice was, and the contempt proceedings are in the ong because of non-compliance with the court order on account of dissatisfaction with the outcome. In a bid to balance which of the two parties would suer greater harm, the only way to remedy would be to comply with the order, and then have the appeal heard. It is clear that the orders being appealed against are reversible, a fact that has been conceded to by the applicant that in the event that the appeal succeeds, court has the power to make the necessary orders that would right any miscarriage of justice and/or illegality including deregistration of the respondent. 15. As the applicant is required to demonstrate both limbs, having failed to demonstrate the nugatory aspect consigns this application to dismissal. Accordingly, and for the foregoing reasons this application fails and is hereby dismissed with costs to the respondent. DATED AND DELIVERED AT NAIROBI THIS 21ST DAY OF OCTOBER, 2022. ................................ HANNAH OKWENGU JUDGE OF APPEAL ................................ H. A. OMONDI JUDGE OF APPEAL ................................ J. MATIVO JUDGE OF APPEAL I certify that this is a true copy of the original Signed https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1183/eng@2022-10-21 3

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DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1183/eng@2022-10-21 4

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