Martin Wanderi & 106 Others V Engineers Registration Board & 5 Others; Egerton University & 43 Others (Interested Parties)  EKLR
|Application 39 of 2019 & Petition 4 of 2016 (Consolidated)||15 May 2020|
Isaac Lenaola, Mohammed Khadhar Ibrahim, Philomena Mbete Mwilu, Smokin C Wanjala, Susanna Njoki Ndungu
Supreme Court of Kenya
Martin Wanderi, Joel Rutto Sutter, Alfred Chombah, Alfrick Otieno, Angela Murigi, Anthony Okava, Anthony Omari, Beatrice Wangari, Ben Odhiambo, Brian Mabatuk, Masinde Muliro University of Science and Technology & 96 others v Engineers Registration Board, Moi University, Masinde Muliro University of Science and Technology, Commission for Higher Education, Ministry of Higher Education Science and Technology Jesse Wahome Waweru & others; Egerton University, Jesse Wahome Waweru, Geoffrey Nangillah Makanga, Maurice Otieno Oloo, Alfred Kipkoech Kibet, Richard Gituro Gichaga, Patrick Karanja Mbugua & 37 others (Interested Parties)
Martin Wanderi & 106 others v Engineers Registration Board & 5 others; Egerton University & 43 others (Interested Parties)  eKLR
The difference in registration mechanism for engineers and engineering technologists and technicians.
Martin Wanderi & 106 others v Engineers Registration Board & 5 others; Egerton University & 43 others (Interested Parties)  eKLR
Application No. 39 of 2019
Supreme Court of Kenya
PM Mwilu (DCJ & VP), MK Ibrahim, SC Wanjala, NS Ndungu and I Lenaola, SCJJ
May 15, 2020
Reported by Chelimo Eunice
Jurisdiction – jurisdiction of the Supreme Court - jurisdiction of the Supreme Court to review its judgments, orders and rulings – scope of the Supreme Court’s power to review its decisions – circumstances which the Supreme Court could review its decisions – application seeking orders for Supreme Court to review its judgment which compelled the Engineers Registration Board to register persons who did not qualify as engineers to be registered as such – where the existence of the Engineering Technology Act was not brought to the attention of the court at the time it rendered the impugned judgment - Supreme Court Act, section 21 (4); Supreme Court Rules, rule 20 (4).
Statutes – interpretation of statutory provisions – Engineers Registration Act and Engineering Technology Act - interpretation of section 11 of the Engineers Registration Act on registration of engineers vis-à-vis section 15 of Engineering Technology Act on registration of engineering technologists or technicians – whether there was a difference in registration mechanism for engineers and engineering technologists and technicians – whether the Engineers Registration Board had the mandate to register engineering technologists and technicians – whether engineering technologists and technicians qualified to be registered under the Engineers Registration Act - Engineers Registration Act, sections 2 and 11; Engineering Technology Act, sections 2 and 15.
The Engineers Registration Board (the applicant) sought a review of the court’s judgment dated July 17, 2018 directing it to register the respondents as engineers under the Engineers Registration Act, arguing that in compliance with the impugned judgment, the applicant took various steps, but in the process realized that some of the respondents did not graduate with engineering degrees but had bachelor of industrial technology degrees which made it difficult to register them as graduate engineers without breaching the law which limited registration of graduate engineers to persons holding engineering degrees. Further, that persons who held bachelor of industrial technology degrees and were therefore technologists and technicians were registered under the Engineering Technology Act (ETA) by the Kenya Engineering Technology Registration Board and not itself, hence the need for the court to review its judgment and remove the anomaly noted in the implementation of the same.
The respondents opposed the application arguing, among others, that it was filed inordinately, that the application was misguided and did not meet the threshold set out in rule 20(4) of the Supreme Court Rules (Rules) and that all the affected parties had been registered as graduate engineers and the impugned judgment had been fully implemented meaning that there was nothing left to review.
- Whether the Supreme Court had jurisdiction to review its decisions.
- What were the circumstances under which the Supreme Court could review its decisions?
- What was the difference in registration mechanism for engineers and engineering technologists and technicians?
- Whether engineering technologists and technicians qualified to be registered under the Engineers Registration Act.
Relevant provisions of the Law
Engineers Registration Act:
11. (1) Subject to this Act, a person shall be entitled, on making an application to the Board in the prescribed form and on payment to the Board of the prescribed fee, to be registered under this Act and to have his name entered in the register as a registered engineer if he is—
(b) a person who—
(i) is the holder of a degree, diploma or licence of a university or school of engineering which may be recognized for the time being by the Board as furnishing sufficient evidence of an adequate academic training in engineering; and
(5) Subject to this Act, a person shall be entitled on making an application to the Board in the prescribed form and on payment to the Board of the prescribed fee to be registered under this Act and to have his name entered in the register as a registered technician engineer if—
(a) he is the holder of a higher national diploma or an equivalent qualification in engineering obtained from an engineering polytechnic or college recognized for the time being by the Board as furnishing evidence of adequate academic training; and
Engineering Technology Act:
15. (1) A person may be registered in the engineering technology profession as a—
(a) professional, which includes –
(i) a professional engineering technologist; or
(ii) a certified engineering technician.
Supreme Court Rules:
The Court may, in circumstances it considers, exceptional, on an application by any party or on its motion, or review any of its decisions.
- Rule 20(4) of the Supreme Court Rules (Rules) gave the Supreme Court power, in circumstances it considered exceptional, to review any of its decisions. Unlike section 21(4) of the Supreme Court Act, rule 20(4) of the Supreme Court Rules would on its face, appear to confer upon the Supreme Court jurisdiction or powers, to review its own judgments, or decisions beyond the confines of the slip rule.
- Neither the Constitution, nor the Supreme Court Act, explicitly, or in general terms, conferred upon the Supreme Court, powers to sit on appeal over its own decisions or to review such decisions. That being the case, no rule of the Supreme Court, not even rule 20(4) of the Supreme Court Rules as worded, could confer upon the Supreme Court jurisdiction to review its own decisions. If that were the intent of rule 20(4) of the Rules, then the said rule would be of doubtful constitutional validity. Therefore, rule 20(4) of the Rules was not capable of conferring upon the Supreme Court powers to review its decisions beyond the confines of the Slip Rule, as embodied in section 21(4) of the Supreme Court Act. At best, that rule could only be understood to be echoing section 21(4) of the Supreme Court Act.
- The Supreme Court, being the final court in Kenya, had no jurisdiction to sit on appeal over, or to review its own judgments, rulings or orders, save in the manner contemplated by section 21(4) of the Supreme Court Act. It became functus officio once it had delivered judgment or made a final decision.
- Nonetheless, there were situations so grave and exceptional that could arise, that without the Supreme Court’s intervention, could seriously distort its ability to do justice. Litigation had to come to an end, but it ought not come to an end in the face of an absurdity. The Supreme Court was the final Court, but most importantly, it was a final court of justice. That being the case, it was clothed with inherent powers which it could invoke, if circumstances so demanded, to do justice. The Constitution from which the Supreme Court, and indeed all courts derived their legitimacy, decreed that justice had to done to all.
- Taking into account the edicts and values embodied in chapter 10 of the Constitution, as a general rule, the Supreme Court had no jurisdiction to sit on appeal over its own decisions, nor to review its decisions, save in the manner contemplated by section 21(4) of the Supreme Court Act. However, in exercise of its inherent powers, it could, 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. Such circumstances were limited to situations where:
i) the judgment, ruling, or order was obtained, by fraud or deceit;
ii) the judgment, ruling, or order was a nullity, such as, when the court itself was not competent;
iii) the court was misled into giving judgment, ruling or order, under a mistaken belief that the parties had consented thereto;
iv) the judgment or ruling was rendered on the basis of a repealed law, or as a result of a deliberately concealed statutory provision.
- It had not been claimed by the applicant that the impugned judgment was obtained by fraud or deceit. Neither had it been termed a nullity nor that it was made in the mistaken belief that the parties had consented thereto.
- Section 11 of the Engineers Registration Act (ERA) dealt with registration of engineers. Section 2 of the ERA defined engineering as the creative application of scientific principles to design or develop structures, machines, apparatus, or manufacturing processes, or works utilizing them singly or in combination or to construct or operate the same with full cognizance of their design or to forecast their behavior under specific operating conditions or aspects of intended function, economics of operation and safety to life and property.
- Section 15 of the Engineering Technology Act (ETA) on the other hand dealt with the registration of engineering technologists or technicians. Section 2 of ETA defined engineering technology as part of the engineering profession in which knowledge of applied mathematical and natural science gained by higher education, experience and practice was devoted to application of engineering principles and the implementation of technology education for the professional focusing primarily on analysing, applying, implementing and improving existing technologies and was aimed at preparing graduates for the purpose of engineering technology practices closest to the product improvement, manufacturing and engineering operational functions.
- The two professions, while related, were different. Engineering technology focused on the applied and practical application of engineering principles whereas engineers emphasized the theoretical aspects of mathematical scientific and engineering principles. That partly explained why the degrees conferred on each were different so was the registration of graduates on qualification.
- There was no issue with implementation of the impugned judgment and orders in as far as graduate engineers were concerned because the applicant had the jurisdiction and mandate to do so.
- In the impugned judgment, the dichotomy between engineering technologists and engineers was not addressed at all. All the respondents were addressed as engineers seeking registration as graduate engineers under the ERA and the court’s orders were specific in that regard.
- To allow registration of engineering technologists and technicians under the ERA by judicial fiat would not be in the interests of justice. The legislature in creating a separate registration mechanism for such professionals did not also intend that a court, without any technical expertise, would ignore the laid down procedure for registration and order a professional entity, such as the applicant, to flout the law in the conduct of its affairs. In any event, nowhere in the impugned judgment was the applicant ordered to do so. Court’s orders were limited to the registration of graduate engineers and not engineering technologists or technicians. The existence of ETA was not brought to the attention of the instant court at the time it rendered the impugned judgment and how its enactment affected implementation of section 11 of ETA which was the operative law at all material times. That non-disclosure was an important consideration on whether to grant a review or not.
- An exceptional circumstance had arisen which required that the impugned judgment, in the relevant part, had to be reviewed as prayed. All the petitioners and interested parties as were engineering technologists and technicians could not be the beneficiaries of some orders in the impugned judgment. Those orders were reviewed to exclude those persons and the said orders were limited to the benefit of graduate engineers only to be registered under the ERA. That was because the applicant was not to blame for the position that those persons found themselves in.
- The applicant had undertaken various actions in a bid to implement the impugned judgment until it hit a wall. Those actions took time and so the delay in filing the instant application was understandable and excusable.
- The applicant’s invitation for the court to expand the principles for review of the Supreme Court judgments to include apparent errors of law and of fact and inability to implement judgment without breaching law and public interest would not be allowed. That was because the issue relating to the import of the ERA as read with the Engineering Technology Registration Act as well as double registration under existing statutes was never the subject of determination in the impugned judgment. Had the court addressed those issues, which were never disclosed to it, the impugned judgment would have been significantly different. That was an exceptional circumstance necessitating a review of the impugned judgment. The already laid down principles applied to the instant application and there was no reason to depart from any other principle nor create additional principles for review of the Supreme Court’s judgments.
- No evidence proving that the impugned judgment had already been implemented, hence the argument that there was nothing to review could not stand. In any event, the 2nd interested parties did not participate in the instant application to authenticate that claim, hence that issue would not be addressed.
Application allowed with no orders as to costs.
i) Order no. (b) (3) in the judgment dated July 17, 2018 was reviewed as followed:
“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”.
ii) Such respondents as were engineering technologists and technicians would not be the beneficiaries of orders nos.(b) 1, 2, and 4 as well as (c) of the judgment dated July 17, 2018.