Water & Sewerage Services Trustees (MEWASS) & 2 others v M'Mbijiwe (Acting as the Legal Representative of the Estate of the Hon Kabeere M'Mbijiwe) (Environment and Land Appeal 28, 30 & 31 of 2012 (Consolidated)) [2025] KEELC 3290 (KLR)
The bottom line
#The Environment and Land Court dismissed a bid to recall a decree, confirming that decrees need only contain the court's final orders, not its findings.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to recall a decree
The court has statutory and inherent jurisdiction to recall a decree not in consonance with the judgment, but only upon satisfaction of a variance between the decree and the judgment
The decree must be drawn from the judgment. Sections 3A and 99 of the Civil Procedure Act and Order 21 Rules 7 and 8 of the Civil Procedure Rules regulate extraction and correction of decrees. The court endorsed Masinde Muliro University v Alfatech Contractors and Highway Furniture Mart, holding the superior court has jurisdiction to set aside a decree that is a nullity for non-conformity, though it becomes functus officio where the decree conforms with the judgment.
Whether the extracted decree accorded with the judgment
The decree of 24th November 2023 accorded with the judgment because it reflected word for word the final dispositive orders; findings of the judge need not appear in the decree
A decree captures only the final and dispositive orders, not the findings, observations or conclusions which are deployed in formulating those orders. The Applicant's contention that the findings on jurisdiction at paragraphs 99 and 151 of the judgment had to be included was a misconception of the law. The dispositive orders appear at paragraphs 152 and 153, and the decree matched them.
Legal principles established
#- A decree must conform to and be drawn from the judgment; a decree not conforming may be recalled, reviewed or rescinded under Sections 3A and 99 of the Civil Procedure Act
- A decree embodies only the final and dispositive orders of the court, not the findings, observations or conclusions
- Before a decree is submitted for sealing, its draft must be served on the adverse party to enable approval of its terms
Court orders
#- 1.The Application dated 3rd January 2025 be and is hereby dismissed
- 2.Costs of the Application be and are hereby awarded to the 1st Respondent only
- 3.Costs in terms clause [ii] are hereby assessed in the sum of kes.10,000/= only
- Jurisdiction invoked
- Sections 3A and 99 of the Civil Procedure Act (Chapter 21, Laws of Kenya) and Order 21 Rules 7 and 8 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Water & Sewerage Services Trustees (MEWASS) & 2 others v M'Mbijiwe (Acting as the Legal Representative of the Estate of the Hon Kabeere M'Mbijiwe) (Environment and Land Appeal 28, 30 & 31 of 2012 (Consolidated)) [2025] KEELC 3290 (KLR)", Case Analysis (2025). Not stated in judgment (Notice of Motion dated 3rd January 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3290/eng@2025-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.