1. The Plaintiff is a Company that carries on architectural business within the Republic of Kenya. On the other hand, the Defendant is an Architect registered as such with the Board of Registration of Architects and Quantity Surveyors (BORAQS)
2. By a Contract in writing made on 7/7/2023 (“the said contract”) between Wema Magharibi Ltd (“the developer”) and the Plaintiff, the developer engaged the Plaintiff to provide architectural design, documentation and construction supervision services over the proposed construction of residential apartments on LR NO. KSM/DAGO/5400 (“the project”).
3. Pursuant thereto, the Plaintiff designed and produced the architectural works for the project including concept drawings, site plans, technical specifications amongst others (“the works”).
4. On 25/4/2026, the developer suspended the Plaintiff from the project and appointed the Defendant as the architect for the project. The Plaintiff did not consent to the said appointment. As at that time, the project had been substantially executed.
5. Aggrieved by the said turn of events, the Plaintiff lodged a plaint dated 7/7/2026 wherein it made various claims against the Defendant. Together with the plaint, it took out a Motion of Notice of even date seeking various injunctive orders. The same was taken out under sections 26, 32, 34, and 35 of the Copyright Act, Sections 1A, 1B, and 3A of the Civil Procedure Act, and Order 40 Rules, 1, 2, and 3 of the Civil Procedure Rules .
6. It sought, inter-alia, orders to restrain the Defendant from reproducing or using the Plaintiff’s works, holding himself out on the project board or elsewhere as the designer of the works, to remove his name from the project board, altering or deleting any data relating to the said works, whether in his possession or otherwise.
7. The basis for the Motion were set out in its body and the supporting affidavit of Paul Ochieng Onyango sworn on 7/7/2026. These were that; the Plaintiff was the author and statutory owner of the works for the project on LR No. Kisumu/DAGO/5400 .
8. That the Defendant, as a registered Architect BORAQS A2207 , had without the consent or knowledge of the Plaintiff adopted, res-stamped, reproduced and submitted the said works to the 1st Interested Party under his name and caused himself to be identified as the projects Architect on the site and regulatory records. That in failing to seek the Plaintiff’s consent, the Defendant had breached BORAQS Code of Conduct and established Profession Norms for the Architects.
9. That since the Architects and Quantity Surveyors Act, CAP 525 prohibits conventional advertising by Architects, the sole lawful mechanism through which to seek market visibility for Architects is through project site board and professional attribution on regulatory records. That the continued occupation of that attribution to the Defendant deprives the Plaintiff’s legally protected commercial interest in the works. That the Plaintiff will suffer irreparable loss unless the orders sought are granted.
10. It further contended that its copyright works had been infringed by the Defendant. That his holding himself out as the architect on record for the project amounted to passing off thereby causing ongoing and irreversible harm to the Plaintiff. That the harm to the Plaintiff was continuous.
11. The defendant opposed the application vide his replying affidavit sworn on 16/7/2026. He averred that on 28/4/2026, he was approached by the developer to take over as the lead Architect of the project after the Plaintiff had withdrawn from the project. That he was informed that there were no pending disputes between the contractor and the Plaintiff. He therefore formalized his engagement with the contractor.
12. He denied the existence of any regulation that requires a letter of no objection or consent for an incoming Architect before assuming professional responsibility for a project. He had however, as a matter of courtesy informed the Plaintiff on 9/7/2026 of having assumed responsibility over the project.
13. He denied re-submitting the architectural drawings prepared by the Plaintiff as the same were uploaded by the developer in accordance with the National Construction Authority ’ s ( NCA ) requirements. That because of the requirement that the name of the Architect responsible for the supervision of a project be displayed in a site board, the Plaintiff’s name could not be displayed having withdrawn from the project. That consequently having been appointed as the projects Architect, his name was put on the site Board. He denied having made any representation that he was the sole Architect for the project.
14. That he believed that the architectural drawings relied on by the Plaintiff were prepared pursuant to a professional engagement with the contractor for which the Plaintiff had been paid for the use of the project. That he further believed, on advice, that where works are created pursuant to a commission, copyright is deemed to vest in the commissioning party unless it is expressly otherwise agreed. That that was not the case here. That he was aware of complaints to NCA and BORAQS by the Plaintiff.
15. He denied knowingly appropriating, misusing or infringing on the copyright of the Plaintiff. According to him, he was acting on instructions of the developer and in accordance with the instructions given thereby. That the developer was a proper party to these proceedings for proper determination of this matter. That there was no independent wrongful act on his part capable of sustaining injunctive orders against him. That the complaints arise from the Plaintiff’s engagement with the developer before he was appointed to the project. That having voluntarily withdrew from the project, the Plaintiff could not seek to prevent the developer from continuing with the works.
16. That the issues raised touched on substantial dispute on copyright ownership, professional responsibility and contractual obligations which can only be determined at a full trial. That no prima facie case had been established nor irreparable loss. He urged that the application be dismissed.
17. The 1st Interested party filed a replying affidavit sworn by Arch. Stephen Mwilu on 16/7/2026. He explained the statutory requirements within which the interested party operates as relates projects/constructions. That on receipt of the Plaintiff’s letter of withdrawal of professional responsibility dated 27/4/2026, the interested party suspended the works at the project. That later the developer applied for a fresh certificate of compliance which was issued by the interested party on 6/5/2026. That it had advised the Plaintiff to refer its complaint on the alleged professional misconduct by the defendant to BORAQs .
18. In a rejoinder by the Plaintiff, a further affidavit was sworn on 19/7/2026. It was averred that the letter of withdrawal of professional responsibility was a protective and professionally responsible measure taken in discharge of its statutory duty of care after the developer had irregularly suspended it from the project contrary to Clause 2.6.2 of the contract .
19. That the withdrawal was neither an assignment of the copyright works or licence for continued reproduction or no objection by the Plaintiff. That the Defendant accepted his appointment within 24 hours of the Plaintiff’s withdrawal. He did so without communicating with the Plaintiff. That the Defendant’s Architectural Consultancy Agreement was executed on 6/7/2026 way after he had already taken over the project works and acted as a consultant thereto. He did so with knowledge of the Plaintiff’s subsisting professional and proprietary interest in the project.
20. The infringement of the copyright was re-emphasized. That the re-designing of the pool amongst others amounted to violation of the Plaintiff’s moral rights of paternity and integrity under section 32 of the Copyright Act (“ the Act ”). The Plaintiff insisted that it was an independent contractor and therefore retained the ownership of copyright works on the design and drawings of the project. It denied the contention that this suit was a re-litigation of the issues.
21. The parties filed their respective submissions dated 19th and 20th July, 2026, respectively which the Court has considered. Learned Counsel made oral highlights on these submissions on 22/7/2026.
22. Mr. Akama for the Plaintiff submitted that the developer was not enjoined because the contract between the Plaintiff and the developer had an arbitral clause. That By-law No. 45 of the Architects and Quantity Surveyors By-laws, 1959 and the Architects Code of Professional Conduct prevents Architects registered in Kenya from supplanting the works of any Architect.
23. That there has to be notice to a previously engaged Architect before an oncoming Architect can take over the works. That the Defendant accepted nomination within 24 hours of the Plaintiff withdrawing its licence on 27/4/2026 without following the required procedure. That the copyright ownership in the works remained in the Plaintiff but the Defendant had supplanted the works and therefore infringed on the same. That in the premises, a prima facie case had been established.
24. On damages, Mr. Akama submitted that Architects were not permitted to advertise their services. Such advertisement is only on project boards for ongoing projects. That the project was at 85% completion stage, which is the harvesting stage. That it is at this stage that the works are being noticed. The name appearing is that of the Defendant instead of the Plaintiff. That the moral rights accruing to it and protected under section 32 of the Copyright Act were being violated. That no inconvenience can be claimed by the Defendant as he did not have any accrued legal rights. He urged the application be allowed.
25. Ms. Miima appeared for the Defendant. She submitted that Clause 11 of the Professional of the Code of Conduct for Architects and Surveyors by BORAQs gave a subjective test. It was for the Defendant to satisfy himself that there were no outstanding obligations between the Plaintiff and the developer. That no letter of objection is required.
26. She further submitted that the Defendant’s name appearing on the site Board did not amount to representation. It only reflected his current role as the supervising consultant. That the contract between the Plaintiff and the developer did not exclude section 32 of the Copyright Act .
27. She relied on section 35(1) of the Copyright Act for the proposition that no injunction should issue to bar completion of a building. That the orders will affect a 3rd party, the developer, who was not a party to the proceedings. That according to the timelines given, the construction should be completed by September, 2026.
28. That there was no infringement as the works were being used for the same project they were meant for. The case of Zelewski vs Cicelo Builders Dev. Inc III PLLC, The US Court of Appeals , second circuit was cited in support of that proposition. Further, the case of Donald Muhonda Andolo -vs- Pinnacle Developers Ltd & 3 Others (2018) KEHC 7148 eKLR was cited for the proposition that prima facie case is established where serious issues on ownership or establishment of copyright is involved.
29. In conclusion, it was submitted that the Defendant was under a contractual duty to deliver his services by September, 2026 and therefore the balance of convenience tilted in favour of declining the orders sought.
30. The Court has carefully considered the rival contestations and submissions. This is an application for interlocutory injunction. The applicable principles were set out in the case of Giella -vs- Cassman Brown 1973 EA 358 . These are that; an applicant must establish a prima facie case with a probability of success, that an injunction will not ordinarily be granted unless damages will not be sufficient compensation and that in the event the Court is in doubt, it will determine the matter on a balance of convenience.
31. Prima facie has been defined to be a case where on the material before Court, a tribunal properly directing its mind will conclude that a right of the applicant has been infringed which would require a rebuttal by the opposite party. ( See Mrao Ltd -vs- First American Bank of Kenya ltd & 2 Others 2003 KLR ).
32. On Prima facie case, has the Plaintiff established any of its rights that have been breached that require a rebuttal by the Defendant? The Plaintiff’s case is that the Defendant has committed gross professional misconduct and infringed on its copyright works. The Defendant has denied any wrongdoing.
33. On professional misconduct, Clause 11 of the Code of Professional Conduct for Architects and Surveyors provides that: -
“ 1) No architect or quantity surveyor shall attempt to supplant another architect or quantity surveyor.
2) An architect or quantity surveyor may take over an ongoing project from another architect or quantity surveyor provided he has notified the previously employed architect or quantity surveyor and the Board.
3) An architect or quantity surveyor that proceeds to take over an ongoing project shall satisfy himself that there are no outstanding obligations between the client and the previously employed architect quantity surveyor, before proceeding to undertake such works.
4) The project takeover shall be effected through the Boards project registration portal. ”
34. From the foregoing, it is clear beyond peradventure that no architect in Kenya is permitted to take over an ongoing project before notifying the previously employed architect and the BORAQS . There is also a requirement that the incoming architect should ascertain if there are any outstanding obligations between the previously retained architect and the client. Further, such take over has to be effected in the BORAQS portal.
35. In the present case, the Plaintiff withdrew its licence on 27/4/2026. It is alleged and not denied that 24hrs later, the Defendant had accepted his nomination as architect for the project. He immediately took up the designs, drawings and other works for the project reviewed them, stamped them and gave site instructions as early as immediately after 6/5/2026 when the 1st interested party gave the certificate of compliance to the developer.
36. There was no evidence that on being nominated by the developer, the Defendant notified both the Plaintiff and the Board of his taking over the project. He only gave such notice on 9/7/2026, way after having taken over the works and executed the same for well over 2 months.
37. Th Defendants’ contention was that he had ascertained from the developer that there were no outstanding obligations owed to the Plaintiff. A simple answer to that is that, as a professional, the Defendant is bound by the BORAQS Code of Professional Conduc t.
38. Even if the Defendant had sought such information from his appointor/the developer, he was duty bound to notify the Plaintiff and the Board of his taking over the works. Had he done so, probably the Plaintiff would have informed him of the serious irregularity of suspension of the Plaintiff’s services by WhatsApp and contrary to the said contract.
39. The Court’s view I that, the requirement for notification to a previously employed architect and BORAQS is to avoid scenarios where mischievous developers enjoy and or consume professional services of architects and with a view to avoid his/its obligation, suspend or terminate the services of the architect and let the professional holding the short end of the stick. The notice will enable the outgoing architect take such steps that are necessary to protect his/its interests.
40. Further, it is meant to ensure that the incoming architect is made aware by the outgoing architect on whether or not there are any obligations pending between the architect and the client. It is the sober and professional way of doing things.
41. The taking over is supposed to be effected through the Board’s project registration portal. This is to enable the Board know and monitor the on goings in the profession and industry and be able to exercise its oversight over the profession. In the present case, it would seem that still this was not done as the Plaintiff alleged, and it was not denied, that at the Board’s registration portal, the Plaintiff still remained as the project’s architect.
42. Accordingly, I am satisfied that a serious infraction of misconduct has been established on a prima facie basis.
43. On copyright ownership, this was seriously contested. There is no dispute that the works for the project were conceived, drawn and perfected by the Plaintiff. The Plaintiff contended that it was an independent contractor in its engagement with the developer providing contract services. It was not an employee of the developer.
44. That in the premises, the ownership of copyright in the project works remained with it and were neither assigned nor surrendered to either the developer or the Defendant. That the Architects By-laws provide that the ownership of copyright on works by Architects remain with an architect unless there is a contract to the contrary. That no such contract to the contrary had been produced.
45. On his part, the Defendant denied that he had infringed any copyright works. He contended that the works were uploaded to NCA portal by the developer who had those designs and drawings. That in any event, the Plaintiff having been commissioned by the developer, the developer held the ownership of the copyright works under section 31 of the Act.
46. No doubt the works in this case were conceived, designed and produced by the Plaintiff. Under the relevant provisions of the Copyright Act, Cap 13 0 , the Plaintiff was the owner of the copyright of those works.
47. The Plaintiff contended that it had not assigned them to the developer. Looking at the Contract for Consultancy Services between the Plaintiff and the developer dated 7/7/2023, the Plaintiff retained independence in the execution of the services it had been contracted to offer. On the authority of Market Investigations Ltd -vs- Minister of Social Security (1969) 2QB 173 , that was a contract for services and not a contract of service.
48. The Defendant contended that under section 31 of the Act, the developer having commissioned the works, the ownership of the copyright works rested in the developer and there was therefore no infringement.
49. My reading of section 31 of the Act is that the same refers to a contract of service and not a contract for service. In the former, the relationship is that of an employer and employee with the payment of wages as a consideration. However, in a contract for service, it is a relationship between a client and an independent contractor who provides specific services. In the latter case, the independent contractor is not an employee of the employer, he provides services for a fee.
50. The professional work of Architects is governed by the Architects and Surveyors Act, Cap 525 of the Laws of Kenya . Under the Act, the Architects and Quantity Surveyors By-laws were enacted vide Legal Notice 420 of 1959 (as amended). Architects are remunerated under By- laws 38 thereof which provides: -
“Subject to the provisions of the Act and of these By-laws, the Conditions of Engagement and the Scale of Professional Charges shall be those contained in the Fourth Schedule to these By-laws …”
51. Clause A.4 of the Conditions of the Conditions of Engagement and Scale of Professional Charges for Architects provides: -
“ Copyright in all drawings and in the work executed from them will remain the property of the architect unless a specific contract is entered into for the sale of such a copyright and except for drawings and work for the Government of the Republic of Kenya as provided for in section 6 of the Copyright Act (Cap 130) .”
52. In the present case, there was no evidence that there was any agreement that had been entered into for the sale of the copyright on the works. Accordingly, on the material before Court, I am satisfied that the ownership of the copyright remained with the Plaintiff and had not been assigned under section 33 of the Act.
53. As to whether there had been an infringement, it was not disputed that upon being nominated, the Defendant reviewed the works, re-stamped them and handed them over to the developer who uploaded them to the 1st interested party’s portal for the suspension of the project to be uplifted on 6/5/2026. There was adjustment to the swimming pool amongst other adjustments. Although the work were used for the same project for which they had been prepared, the Plaintiff had not consented to the variations and adjustments.
54. For the foregoing reasons, I am satisfied that the Plaintiff has established a prima facie case with a probability of success.
55. What of irreparable loss. The Court is satisfied that the loss to be suffered by the use of the Plaintiff’s works without its authority is unquantifiable. The Defendant will enjoy the reputation of being the architect of the project as advertised in the site board, him being the supervising consultant. More so, at the harvesting stage of the project, all the credit for the works will go to the Defendant as it is his name that is prominently engrossed on the site board, to the detriment of the Plaintiff. I am satisfied that the second principle in the Giella -vs- Cassman Brown Case has been met.
56. Before considering the 3rd and last principle on the balance of convenience, I propose here to determine the prayers sought in the motion. Prayers Nos. 2 and 3 seek to restrain the defendant or his agents and servants from: -
“a) … reproducing, adapting, modifying, submitting to any regulatory authority, displaying or in any manner exploiting the Plaintiff’s copyright works ... holding himself out, whether or not the project site board, or on the NCA OPRS, … as the architect, author designer, or architect on record of the development on LR NO. KISUMU/DAGO/5400 ...
b) … Within 48 hours … remove his name and BORAQS Registration No. A2207 from the project site Board at the development site on LR NO. KISUMU/DAGO/5400 ...”
57. The net effect of these orders are to not only paralyze the project but will ultimately lead to the suspension or revocation of the Compliance Certificate by the 1st Interested Party for the lack of specialized personnel on site. That will ultimately affect the developer whom the Court had not had an opportunity to hear. One of the cardinal principles of natural justice is expressed as audi alteram partem, hear the other side.
58. The view I take is that, if the orders sought are granted as prayed, the Court would have condemned the developer without having heard it. The orders, although directed at the Defendant, will have the effect of affecting the developer directly. Withdrawal of the works and/or removal of the name of the Architect Consultant from the site board will definitely lead to suspension of the works by the interested party. This is very clear from its replying affidavit.
59. Mr. Akama submitted that the developer was not enjoined in these proceedings because the contract between the Plaintiff and the developer contained an arbitral clause. That may have been the case but its exclusion from these proceedings turns fatal on the injunction application.
60. Nothing prevented the Plaintiff from enjoining the developer, as the one to be principally affected by prayer Nos. 2 and 3 of the Motion, for purposes of seeking an injunction pending reference to arbitration under section 7 of the Arbitration Act. That section provides: -
“It is not incompatible with an arbitration agreement for a party to request from the High Court, before, or during arbitral proceedings, an interim measure of protection and for the High Court to grant the measure.”
61. If the developer was here and had been heard and not controverted the Plaintiff’s case, nothing would have been easier than to issue the orders sought since the chain of events in this case were commenced by it vide its WhatsApp message of 25/4/2026 suspending the Plaintiff from the works. The orders could have been issued pending reference to arbitration as against the developer but pending the hearing of the suit as against the Defendant in this case.
62. Since however, the developer was not enjoined in these proceedings, and since prayer Nos. 2 and 3 would directly impact on it, I decline to grant the same.
63. The foregoing goes hand in hand with the fact that the balance of convenience tilts in letting the developer continue with its project which is said to be time bound.
64. Further, section 35(7) of the Act provides: -
“No injunction shall be issued in proceedings for infringement of any right protected under this Act which requires a completed or partly built building to be demolished or prevents the completion of a partly built building.
65. In the present case, apart from the fact that the developer has not been heard, it is said that the project is about over 90% completion, having been 85% in April, 2026 and expected to be completed in September, 2026. It will be unjust to ground and stop that project at this stage. The balance of convenience tilts in favour of leaving the same to be completed and the Plaintiff to pursue the developer as had been indicated through arbitration.
66. What of prayer No. 4? That prayer is directed against the Defendant only. It will not affect any innocent 3rd party. The balance of convenience on it tilts in preserving the evidence pending the trial of the case.
67. Accordingly, for the foregoing reasons, the application dated 7/7/2026 is partially successful as follows: -
a) Prayer Nos. 2 and 3 of the Motion are declined.
b) Prayer No. 4 is allowed as prayed pending the trial.
c) Costs shall abide the outcome of the suit.
It is so ordered.
2. By a Contract in writing made on 7/7/2023 (“the said contract”) between Wema Magharibi Ltd (“the developer”) and the Plaintiff, the developer engaged the Plaintiff to provide architectural design, documentation and construction supervision services over the proposed construction of residential apartments on LR NO. KSM/DAGO/5400 (“the project”).
3. Pursuant thereto, the Plaintiff designed and produced the architectural works for the project including concept drawings, site plans, technical specifications amongst others (“the works”).
4. On 25/4/2026, the developer suspended the Plaintiff from the project and appointed the Defendant as the architect for the project. The Plaintiff did not consent to the said appointment. As at that time, the project had been substantially executed.
5. Aggrieved by the said turn of events, the Plaintiff lodged a plaint dated 7/7/2026 wherein it made various claims against the Defendant. Together with the plaint, it took out a Motion of Notice of even date seeking various injunctive orders. The same was taken out under sections 26, 32, 34, and 35 of the Copyright Act, Sections 1A, 1B, and 3A of the Civil Procedure Act, and Order 40 Rules, 1, 2, and 3 of the Civil Procedure Rules .
6. It sought, inter-alia, orders to restrain the Defendant from reproducing or using the Plaintiff’s works, holding himself out on the project board or elsewhere as the designer of the works, to remove his name from the project board, altering or deleting any data relating to the said works, whether in his possession or otherwise.
7. The basis for the Motion were set out in its body and the supporting affidavit of Paul Ochieng Onyango sworn on 7/7/2026. These were that; the Plaintiff was the author and statutory owner of the works for the project on LR No. Kisumu/DAGO/5400 .
8. That the Defendant, as a registered Architect BORAQS A2207 , had without the consent or knowledge of the Plaintiff adopted, res-stamped, reproduced and submitted the said works to the 1st Interested Party under his name and caused himself to be identified as the projects Architect on the site and regulatory records. That in failing to seek the Plaintiff’s consent, the Defendant had breached BORAQS Code of Conduct and established Profession Norms for the Architects.
9. That since the Architects and Quantity Surveyors Act, CAP 525 prohibits conventional advertising by Architects, the sole lawful mechanism through which to seek market visibility for Architects is through project site board and professional attribution on regulatory records. That the continued occupation of that attribution to the Defendant deprives the Plaintiff’s legally protected commercial interest in the works. That the Plaintiff will suffer irreparable loss unless the orders sought are granted.
10. It further contended that its copyright works had been infringed by the Defendant. That his holding himself out as the architect on record for the project amounted to passing off thereby causing ongoing and irreversible harm to the Plaintiff. That the harm to the Plaintiff was continuous.
11. The defendant opposed the application vide his replying affidavit sworn on 16/7/2026. He averred that on 28/4/2026, he was approached by the developer to take over as the lead Architect of the project after the Plaintiff had withdrawn from the project. That he was informed that there were no pending disputes between the contractor and the Plaintiff. He therefore formalized his engagement with the contractor.
12. He denied the existence of any regulation that requires a letter of no objection or consent for an incoming Architect before assuming professional responsibility for a project. He had however, as a matter of courtesy informed the Plaintiff on 9/7/2026 of having assumed responsibility over the project.
13. He denied re-submitting the architectural drawings prepared by the Plaintiff as the same were uploaded by the developer in accordance with the National Construction Authority ’ s ( NCA ) requirements. That because of the requirement that the name of the Architect responsible for the supervision of a project be displayed in a site board, the Plaintiff’s name could not be displayed having withdrawn from the project. That consequently having been appointed as the projects Architect, his name was put on the site Board. He denied having made any representation that he was the sole Architect for the project.
14. That he believed that the architectural drawings relied on by the Plaintiff were prepared pursuant to a professional engagement with the contractor for which the Plaintiff had been paid for the use of the project. That he further believed, on advice, that where works are created pursuant to a commission, copyright is deemed to vest in the commissioning party unless it is expressly otherwise agreed. That that was not the case here. That he was aware of complaints to NCA and BORAQS by the Plaintiff.
15. He denied knowingly appropriating, misusing or infringing on the copyright of the Plaintiff. According to him, he was acting on instructions of the developer and in accordance with the instructions given thereby. That the developer was a proper party to these proceedings for proper determination of this matter. That there was no independent wrongful act on his part capable of sustaining injunctive orders against him. That the complaints arise from the Plaintiff’s engagement with the developer before he was appointed to the project. That having voluntarily withdrew from the project, the Plaintiff could not seek to prevent the developer from continuing with the works.
16. That the issues raised touched on substantial dispute on copyright ownership, professional responsibility and contractual obligations which can only be determined at a full trial. That no prima facie case had been established nor irreparable loss. He urged that the application be dismissed.
17. The 1st Interested party filed a replying affidavit sworn by Arch. Stephen Mwilu on 16/7/2026. He explained the statutory requirements within which the interested party operates as relates projects/constructions. That on receipt of the Plaintiff’s letter of withdrawal of professional responsibility dated 27/4/2026, the interested party suspended the works at the project. That later the developer applied for a fresh certificate of compliance which was issued by the interested party on 6/5/2026. That it had advised the Plaintiff to refer its complaint on the alleged professional misconduct by the defendant to BORAQs .
18. In a rejoinder by the Plaintiff, a further affidavit was sworn on 19/7/2026. It was averred that the letter of withdrawal of professional responsibility was a protective and professionally responsible measure taken in discharge of its statutory duty of care after the developer had irregularly suspended it from the project contrary to Clause 2.6.2 of the contract .
19. That the withdrawal was neither an assignment of the copyright works or licence for continued reproduction or no objection by the Plaintiff. That the Defendant accepted his appointment within 24 hours of the Plaintiff’s withdrawal. He did so without communicating with the Plaintiff. That the Defendant’s Architectural Consultancy Agreement was executed on 6/7/2026 way after he had already taken over the project works and acted as a consultant thereto. He did so with knowledge of the Plaintiff’s subsisting professional and proprietary interest in the project.
20. The infringement of the copyright was re-emphasized. That the re-designing of the pool amongst others amounted to violation of the Plaintiff’s moral rights of paternity and integrity under section 32 of the Copyright Act (“ the Act ”). The Plaintiff insisted that it was an independent contractor and therefore retained the ownership of copyright works on the design and drawings of the project. It denied the contention that this suit was a re-litigation of the issues.
21. The parties filed their respective submissions dated 19th and 20th July, 2026, respectively which the Court has considered. Learned Counsel made oral highlights on these submissions on 22/7/2026.
22. Mr. Akama for the Plaintiff submitted that the developer was not enjoined because the contract between the Plaintiff and the developer had an arbitral clause. That By-law No. 45 of the Architects and Quantity Surveyors By-laws, 1959 and the Architects Code of Professional Conduct prevents Architects registered in Kenya from supplanting the works of any Architect.
23. That there has to be notice to a previously engaged Architect before an oncoming Architect can take over the works. That the Defendant accepted nomination within 24 hours of the Plaintiff withdrawing its licence on 27/4/2026 without following the required procedure. That the copyright ownership in the works remained in the Plaintiff but the Defendant had supplanted the works and therefore infringed on the same. That in the premises, a prima facie case had been established.
24. On damages, Mr. Akama submitted that Architects were not permitted to advertise their services. Such advertisement is only on project boards for ongoing projects. That the project was at 85% completion stage, which is the harvesting stage. That it is at this stage that the works are being noticed. The name appearing is that of the Defendant instead of the Plaintiff. That the moral rights accruing to it and protected under section 32 of the Copyright Act were being violated. That no inconvenience can be claimed by the Defendant as he did not have any accrued legal rights. He urged the application be allowed.
25. Ms. Miima appeared for the Defendant. She submitted that Clause 11 of the Professional of the Code of Conduct for Architects and Surveyors by BORAQs gave a subjective test. It was for the Defendant to satisfy himself that there were no outstanding obligations between the Plaintiff and the developer. That no letter of objection is required.
26. She further submitted that the Defendant’s name appearing on the site Board did not amount to representation. It only reflected his current role as the supervising consultant. That the contract between the Plaintiff and the developer did not exclude section 32 of the Copyright Act .
27. She relied on section 35(1) of the Copyright Act for the proposition that no injunction should issue to bar completion of a building. That the orders will affect a 3rd party, the developer, who was not a party to the proceedings. That according to the timelines given, the construction should be completed by September, 2026.
28. That there was no infringement as the works were being used for the same project they were meant for. The case of Zelewski vs Cicelo Builders Dev. Inc III PLLC, The US Court of Appeals , second circuit was cited in support of that proposition. Further, the case of Donald Muhonda Andolo -vs- Pinnacle Developers Ltd & 3 Others (2018) KEHC 7148 eKLR was cited for the proposition that prima facie case is established where serious issues on ownership or establishment of copyright is involved.
29. In conclusion, it was submitted that the Defendant was under a contractual duty to deliver his services by September, 2026 and therefore the balance of convenience tilted in favour of declining the orders sought.
30. The Court has carefully considered the rival contestations and submissions. This is an application for interlocutory injunction. The applicable principles were set out in the case of Giella -vs- Cassman Brown 1973 EA 358 . These are that; an applicant must establish a prima facie case with a probability of success, that an injunction will not ordinarily be granted unless damages will not be sufficient compensation and that in the event the Court is in doubt, it will determine the matter on a balance of convenience.
31. Prima facie has been defined to be a case where on the material before Court, a tribunal properly directing its mind will conclude that a right of the applicant has been infringed which would require a rebuttal by the opposite party. ( See Mrao Ltd -vs- First American Bank of Kenya ltd & 2 Others 2003 KLR ).
32. On Prima facie case, has the Plaintiff established any of its rights that have been breached that require a rebuttal by the Defendant? The Plaintiff’s case is that the Defendant has committed gross professional misconduct and infringed on its copyright works. The Defendant has denied any wrongdoing.
33. On professional misconduct, Clause 11 of the Code of Professional Conduct for Architects and Surveyors provides that: -
“ 1) No architect or quantity surveyor shall attempt to supplant another architect or quantity surveyor.
2) An architect or quantity surveyor may take over an ongoing project from another architect or quantity surveyor provided he has notified the previously employed architect or quantity surveyor and the Board.
3) An architect or quantity surveyor that proceeds to take over an ongoing project shall satisfy himself that there are no outstanding obligations between the client and the previously employed architect quantity surveyor, before proceeding to undertake such works.
4) The project takeover shall be effected through the Boards project registration portal. ”
34. From the foregoing, it is clear beyond peradventure that no architect in Kenya is permitted to take over an ongoing project before notifying the previously employed architect and the BORAQS . There is also a requirement that the incoming architect should ascertain if there are any outstanding obligations between the previously retained architect and the client. Further, such take over has to be effected in the BORAQS portal.
35. In the present case, the Plaintiff withdrew its licence on 27/4/2026. It is alleged and not denied that 24hrs later, the Defendant had accepted his nomination as architect for the project. He immediately took up the designs, drawings and other works for the project reviewed them, stamped them and gave site instructions as early as immediately after 6/5/2026 when the 1st interested party gave the certificate of compliance to the developer.
36. There was no evidence that on being nominated by the developer, the Defendant notified both the Plaintiff and the Board of his taking over the project. He only gave such notice on 9/7/2026, way after having taken over the works and executed the same for well over 2 months.
37. Th Defendants’ contention was that he had ascertained from the developer that there were no outstanding obligations owed to the Plaintiff. A simple answer to that is that, as a professional, the Defendant is bound by the BORAQS Code of Professional Conduc t.
38. Even if the Defendant had sought such information from his appointor/the developer, he was duty bound to notify the Plaintiff and the Board of his taking over the works. Had he done so, probably the Plaintiff would have informed him of the serious irregularity of suspension of the Plaintiff’s services by WhatsApp and contrary to the said contract.
39. The Court’s view I that, the requirement for notification to a previously employed architect and BORAQS is to avoid scenarios where mischievous developers enjoy and or consume professional services of architects and with a view to avoid his/its obligation, suspend or terminate the services of the architect and let the professional holding the short end of the stick. The notice will enable the outgoing architect take such steps that are necessary to protect his/its interests.
40. Further, it is meant to ensure that the incoming architect is made aware by the outgoing architect on whether or not there are any obligations pending between the architect and the client. It is the sober and professional way of doing things.
41. The taking over is supposed to be effected through the Board’s project registration portal. This is to enable the Board know and monitor the on goings in the profession and industry and be able to exercise its oversight over the profession. In the present case, it would seem that still this was not done as the Plaintiff alleged, and it was not denied, that at the Board’s registration portal, the Plaintiff still remained as the project’s architect.
42. Accordingly, I am satisfied that a serious infraction of misconduct has been established on a prima facie basis.
43. On copyright ownership, this was seriously contested. There is no dispute that the works for the project were conceived, drawn and perfected by the Plaintiff. The Plaintiff contended that it was an independent contractor in its engagement with the developer providing contract services. It was not an employee of the developer.
44. That in the premises, the ownership of copyright in the project works remained with it and were neither assigned nor surrendered to either the developer or the Defendant. That the Architects By-laws provide that the ownership of copyright on works by Architects remain with an architect unless there is a contract to the contrary. That no such contract to the contrary had been produced.
45. On his part, the Defendant denied that he had infringed any copyright works. He contended that the works were uploaded to NCA portal by the developer who had those designs and drawings. That in any event, the Plaintiff having been commissioned by the developer, the developer held the ownership of the copyright works under section 31 of the Act.
46. No doubt the works in this case were conceived, designed and produced by the Plaintiff. Under the relevant provisions of the Copyright Act, Cap 13 0 , the Plaintiff was the owner of the copyright of those works.
47. The Plaintiff contended that it had not assigned them to the developer. Looking at the Contract for Consultancy Services between the Plaintiff and the developer dated 7/7/2023, the Plaintiff retained independence in the execution of the services it had been contracted to offer. On the authority of Market Investigations Ltd -vs- Minister of Social Security (1969) 2QB 173 , that was a contract for services and not a contract of service.
48. The Defendant contended that under section 31 of the Act, the developer having commissioned the works, the ownership of the copyright works rested in the developer and there was therefore no infringement.
49. My reading of section 31 of the Act is that the same refers to a contract of service and not a contract for service. In the former, the relationship is that of an employer and employee with the payment of wages as a consideration. However, in a contract for service, it is a relationship between a client and an independent contractor who provides specific services. In the latter case, the independent contractor is not an employee of the employer, he provides services for a fee.
50. The professional work of Architects is governed by the Architects and Surveyors Act, Cap 525 of the Laws of Kenya . Under the Act, the Architects and Quantity Surveyors By-laws were enacted vide Legal Notice 420 of 1959 (as amended). Architects are remunerated under By- laws 38 thereof which provides: -
“Subject to the provisions of the Act and of these By-laws, the Conditions of Engagement and the Scale of Professional Charges shall be those contained in the Fourth Schedule to these By-laws …”
51. Clause A.4 of the Conditions of the Conditions of Engagement and Scale of Professional Charges for Architects provides: -
“ Copyright in all drawings and in the work executed from them will remain the property of the architect unless a specific contract is entered into for the sale of such a copyright and except for drawings and work for the Government of the Republic of Kenya as provided for in section 6 of the Copyright Act (Cap 130) .”
52. In the present case, there was no evidence that there was any agreement that had been entered into for the sale of the copyright on the works. Accordingly, on the material before Court, I am satisfied that the ownership of the copyright remained with the Plaintiff and had not been assigned under section 33 of the Act.
53. As to whether there had been an infringement, it was not disputed that upon being nominated, the Defendant reviewed the works, re-stamped them and handed them over to the developer who uploaded them to the 1st interested party’s portal for the suspension of the project to be uplifted on 6/5/2026. There was adjustment to the swimming pool amongst other adjustments. Although the work were used for the same project for which they had been prepared, the Plaintiff had not consented to the variations and adjustments.
54. For the foregoing reasons, I am satisfied that the Plaintiff has established a prima facie case with a probability of success.
55. What of irreparable loss. The Court is satisfied that the loss to be suffered by the use of the Plaintiff’s works without its authority is unquantifiable. The Defendant will enjoy the reputation of being the architect of the project as advertised in the site board, him being the supervising consultant. More so, at the harvesting stage of the project, all the credit for the works will go to the Defendant as it is his name that is prominently engrossed on the site board, to the detriment of the Plaintiff. I am satisfied that the second principle in the Giella -vs- Cassman Brown Case has been met.
56. Before considering the 3rd and last principle on the balance of convenience, I propose here to determine the prayers sought in the motion. Prayers Nos. 2 and 3 seek to restrain the defendant or his agents and servants from: -
“a) … reproducing, adapting, modifying, submitting to any regulatory authority, displaying or in any manner exploiting the Plaintiff’s copyright works ... holding himself out, whether or not the project site board, or on the NCA OPRS, … as the architect, author designer, or architect on record of the development on LR NO. KISUMU/DAGO/5400 ...
b) … Within 48 hours … remove his name and BORAQS Registration No. A2207 from the project site Board at the development site on LR NO. KISUMU/DAGO/5400 ...”
57. The net effect of these orders are to not only paralyze the project but will ultimately lead to the suspension or revocation of the Compliance Certificate by the 1st Interested Party for the lack of specialized personnel on site. That will ultimately affect the developer whom the Court had not had an opportunity to hear. One of the cardinal principles of natural justice is expressed as audi alteram partem, hear the other side.
58. The view I take is that, if the orders sought are granted as prayed, the Court would have condemned the developer without having heard it. The orders, although directed at the Defendant, will have the effect of affecting the developer directly. Withdrawal of the works and/or removal of the name of the Architect Consultant from the site board will definitely lead to suspension of the works by the interested party. This is very clear from its replying affidavit.
59. Mr. Akama submitted that the developer was not enjoined in these proceedings because the contract between the Plaintiff and the developer contained an arbitral clause. That may have been the case but its exclusion from these proceedings turns fatal on the injunction application.
60. Nothing prevented the Plaintiff from enjoining the developer, as the one to be principally affected by prayer Nos. 2 and 3 of the Motion, for purposes of seeking an injunction pending reference to arbitration under section 7 of the Arbitration Act. That section provides: -
“It is not incompatible with an arbitration agreement for a party to request from the High Court, before, or during arbitral proceedings, an interim measure of protection and for the High Court to grant the measure.”
61. If the developer was here and had been heard and not controverted the Plaintiff’s case, nothing would have been easier than to issue the orders sought since the chain of events in this case were commenced by it vide its WhatsApp message of 25/4/2026 suspending the Plaintiff from the works. The orders could have been issued pending reference to arbitration as against the developer but pending the hearing of the suit as against the Defendant in this case.
62. Since however, the developer was not enjoined in these proceedings, and since prayer Nos. 2 and 3 would directly impact on it, I decline to grant the same.
63. The foregoing goes hand in hand with the fact that the balance of convenience tilts in letting the developer continue with its project which is said to be time bound.
64. Further, section 35(7) of the Act provides: -
“No injunction shall be issued in proceedings for infringement of any right protected under this Act which requires a completed or partly built building to be demolished or prevents the completion of a partly built building.
65. In the present case, apart from the fact that the developer has not been heard, it is said that the project is about over 90% completion, having been 85% in April, 2026 and expected to be completed in September, 2026. It will be unjust to ground and stop that project at this stage. The balance of convenience tilts in favour of leaving the same to be completed and the Plaintiff to pursue the developer as had been indicated through arbitration.
66. What of prayer No. 4? That prayer is directed against the Defendant only. It will not affect any innocent 3rd party. The balance of convenience on it tilts in preserving the evidence pending the trial of the case.
67. Accordingly, for the foregoing reasons, the application dated 7/7/2026 is partially successful as follows: -
a) Prayer Nos. 2 and 3 of the Motion are declined.
b) Prayer No. 4 is allowed as prayed pending the trial.
c) Costs shall abide the outcome of the suit.
It is so ordered.