Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment (Notice of Motion dated 3rd January 2025)· [2025] KEELC 3290 (KLR)

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)

Environment and Land Court (court not expressly named in excerpt; single judge, OGUTTU MBOYA JUDGE)
20 March 2025
2,108 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

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

#
By a Notice of Motion dated 3rd January 2025, the Applicant, Kinyua M'mtoo Mbijiwe, sought recall of the decree extracted and sealed on 24th November 2023 on the ground that it was not drawn in accordance with the judgment delivered on 18th October 2023, contending that the decree omitted the judge's findings at paragraphs 99 and 151, particularly on jurisdiction, which he argued formed the ratio decidendi. The 1st Respondent opposed, asserting the decree was word for word the orders made by the judge; the 2nd and 3rd Respondents did not respond. The court framed two issues: its jurisdiction to recall or rescind a decree, and whether the extracted decree accorded with the judgment. On the first, it held, relying on Masinde Muliro University v Alfatech Contractors and Highway Furniture Mart v Permanent Secretary, Office of the President, that under Sections 3A and 99 of the Civil Procedure Act and Order 21 Rules 7 and 8 of the Civil Procedure Rules, a decree not conforming with the judgment may be recalled, reviewed or rescinded, though the court becomes functus officio where the decree conforms. On the second, it held that a decree embodies only the final dispositive orders, not the findings, so the decree, matching the dispositive orders at paragraphs 152 and 153, accorded with the judgment. The application was dismissed as misconceived and an abuse of process, with costs of KES 10,000 awarded to the 1st Respondent.

Key legal issues

#
01

Jurisdiction to recall a decree

Holding

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

Reasoning

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.

p. 3
02

Whether the extracted decree accorded with the judgment

Holding

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

Reasoning

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.

p. 4

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. 1.The Application dated 3rd January 2025 be and is hereby dismissed
  2. 2.Costs of the Application be and are hereby awarded to the 1st Respondent only
  3. 3.Costs in terms clause [ii] are hereby assessed in the sum of kes.10,000/= only

Authorities

#

Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 99
  • Civil Procedure Rules 2010Order 21 Rule 7
  • Civil Procedure Rules 2010Order 21 Rule 8

Cases cited (2)

  • Masinde Muliro University of Science and Technology v Alfatech Contractors Limited; Kenya Commercial Bank Limited & National Bank of Kenya Limited (Garnishee)
    (Civil Suit 237 of 2014) [2021] KEHC 9668 (KLR)
  • Highway Furniture Mart Limited v Permanent Secretary Office of The President & another
    [2006] eKLR
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.