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ELCDismissedNot stated in judgment· [2026] KEELC 3081 (KLR)

Kiilu [Suing through her Attorneys; George Kiilu; and Francis Kiilu) v Jiangxi Water and Hydropower Construction Kenya Limited & another (Environment and Land Case 34 of 2018) [2026] KEELC 3081 (KLR)

Environment and Land Court
21 May 2026
3,346 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to enforce a refund order because a ruling produces an order, not a decree—breached orders must be enforced through contempt, not execution.

What this practically means

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Executive summary

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The applicants moved the Environment and Land Court at Meru by Notice of Motion dated 23rd March 2026 seeking execution orders to enforce a ruling delivered on 5th February 2026, in which the respondent had been directed to refund Kshs 50,000,000 to the court within 45 days. The applicants sought a decree for recovery of the sum, warrants of attachment and sale, garnishee orders against undisclosed bank accounts including those of M/s John Muthomi & Co Advocates, and police assistance. The respondent opposed, contending the applicants lacked locus standi, the monies belonged to the judiciary, only the deputy registrar could levy execution, no decree had been extracted or served, and the existing decree was subject to stay pending appeal. The court framed three issues: whether a lawful decree capable of execution existed; whether it could issue a decree on the application; and whether the garnishee prayer was tenable. It held that the refund ruling could only birth an order, not a decree; that only one decree exists per matter, and the sole decree flows from the judgment and underpins the pending appeal; and that breached orders must be pursued through contempt proceedings under section 29 of the Environment and Land Court Act. Garnishee orders could not issue against undisclosed garnishees and accounts, and against a non-judgment-debtor. Following Kamau Mucuha v Ripples Ltd, the court held the police cannot be used in civil execution. The application was declined with no orders as to costs, the respondent's non-compliance disqualifying him from costs.

Key legal issues

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01

Whether a lawful decree existed capable of execution

Holding

No decree exists to underpin the intended execution; the ruling directing refund is an order, not a decree

Reasoning

Section 2 of the Civil Procedure Act defines a decree as the formal expression of an adjudication conclusively determining the rights of the parties. The ruling of 5th February 2026 directing the respondent to refund Kshs 50,000,000 to the court does not constitute a decree; it can only birth an order. The only decree on the file flows from the judgment and is the subject of the pending appeal to the Court of Appeal.

p. 4
02

Whether the court can issue a fresh decree on the application

Holding

No; a decree can only issue after hearing and determination of the substantive suit, and only one decree may exist per matter

Reasoning

The substantive suit was already heard and determined and a decree exists, underpinning the appeal. The court cannot engage itself to issue a decree in respect of an application; there can never be two sets of decrees in the same matter. Non-compliance with the refund order is a matter for contempt proceedings under section 29 of the Environment and Land Court Act, not for execution.

p. 4
03

Whether the prayer for garnishee nisi was legally tenable

Holding

The garnishee limb was premature, misconceived and legally untenable

Reasoning

Garnishee proceedings under Order 23 require a decree-holder attaching debts owed by a third party to a judgment debtor. The applicants did not identify any garnishee or disclose any bank accounts, and the respondent is not a judgment debtor since the refund order is not a decree. Garnishee proceedings cannot be taken at large or in vacuum.

p. 6

Legal principles established

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  • A ruling of the court can only birth an order, not a decree; a decree is the formal expression of an adjudication conclusively determining rights of the parties
  • There can never be two sets of decrees in respect of the same matter; a decree follows the hearing and determination of the substantive suit
  • Breach of a court order is enforceable only through contempt proceedings, not by execution absent a decree
  • Police may not be used in civil execution; execution is undertaken by licensed auctioneers, with police only providing reasonable security
  • Garnishee orders require specificity of the garnishee and the accounts; they cannot issue in vacuum against a non-judgment-debtor

Court orders

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  1. 1.Notice of Motion Application dated 23.3.2026 be and is hereby declined
  2. 2.There shall be no orders as to cost
Jurisdiction invoked
Sections 1A, 1B, 3A and 34 of the Civil Procedure Act; Order 22 and Order 21 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kiilu [Suing through her Attorneys; George Kiilu; and Francis Kiilu) v Jiangxi Water and Hydropower Construction Kenya Limited & another (Environment and Land Case 34 of 2018) [2026] KEELC 3081 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3081/eng@2026-05-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.