https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3081

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) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3081 (KLR) Republic of Kenya In the Environment and Land Court at Meru Environment and Land Case 34 of 2018 JO Mboya, J May 21, 2026 Between Rhoda S Kiilu [Suing Through Her Attorneys; George Kiilu; And Francis Kiilu) Plaintiff and Jiangxi Water and Hydropower Construction Kenya Limited Defendant and John Muthomi & Co Advocates Respondent Ruling 1.What is before me is the Notice of Motion Application dated 23rd March,2026; brought pursuant to the provisions of Section 1A,1B,3A and 34 of the Civil Procedure Act; Order 22; and Order 21 of the Civil Procedure Rules, 2010; and wherein the Applicants have sought various reliefs. The reliefs sought are:a.…………………………………………………………….Spent.b.That this Honourable court be pleased to issue execution orders to enforce the ruling delivered on 5th February, 2026.c.That the Honourable court be pleased to issue a decree for recovery of Kshs 50,000,000/- against the respondent.d.The Honourable court be pleased to issue warrants of attachment and sale against the movable and immovable assets of the respondent.e.The Honourable court be pleased to issue garnishee orders against: all known bank accounts of the respondent, & Any accounts operated by M/s John Muthomi & Co Advocates.f.The Officer Commanding Station (OCS) Meru police station does assist in enforcement.g.The cost of the Application should be provided for. 2.The subject Application is premised on various grounds. The grounds are: The court delivered a ruling on the 5th February, 2026; the ruling directed the Respondent to restitute/ refund the sum of Kshs. 50,000,000/= only to the court; the refund was time bound; the monies were to be refunded within 45 days; the Respondent has failed and neglected to comply; the failure by the Respondent is deliberate and intended to defeat the terms of the court order. 3.Additionally, it has been contended that the Respondent herein may not refund the money, and hence there is need for the court to grant the relief[s] sought. Moreover, it has been posited that there is no order of stay of execution to defeat the orders sought. 4.The subject application is supported by two [2] sets of affidavits. The first affidavit is the supporting affidavit sworn on the 30th March, 2026 and to which the deponent has annexed a copy of the ruling of the court. The 2nd affidavit is the supplementary affidavit sworn on the 28th April, 2026, wherein the deponent has highlighted various issues. Nevertheless, the contents of the twin Affidavits reiterate the grounds contained in the body of the application. 5.The Respondent has filed a replying affidavit sworn on 13th April, 2026; wherein the Respondent has raised a plethora of issues. The issues raised are: the Applicants are divested of the locus standi to mount the subject application; the monies in question do not belong to the applicant; the monies belong to the judiciary; the only person who can undertake/ levy execution is the deputy registrar or accounting officer of the court; and the subject application is misconceived. 6.In addition, it has been contended that there is only one decree in respect of the subject matter and that the decree in question is subject to an order of stay pending the hearing and determination of an appeal to the Court of Appeal. Further, and in any event, it has been posited that no decree has ever been extracted, sealed and served upon the respondent. Furthermore, it has been averred that in the absence of a decree, no execution can issue or be undertaken. 7.Flowing from the foregoing, the Respondent has invited the court to find and hold that the subject application is premature, misconceived and legally untenable. To this end, the court has been implored to dismiss the application with costs. 8.The application came up for directions, and whereupon the court directed that the application be canvassed and disposed of vide written submissions. In addition, the court also circumscribed the timelines for the filing and exchange of written submissions by the respective parties. 9.The Applicants filed written submissions dated 28th April, 2026, wherein the Applicants have raised and canvassed five [5] key issues. The issues are: The Applicants are seized of the requisite locus standi to mount the application; there does exist a lawful decree in respect of the matter; the Respondent had failed and neglected to comply with the terms of the ruling of the court; and the court has a duty/ obligation to enforce its orders. 10.As a result of the foregoing, the Applicants have contended that they have established and satisfied the threshold/ basis to warrant the issuance of the orders sought. To this end, the Applicants have implored the court to allow the application and decree the refund of the monies in question. 11.The Respondent herein was privy to and alive to the directions of the court. The Respondent did not file any written submissions. Nevertheless, when the matter came up for mention for purposes of confirming compliance, the Respondent intimated to the court that he would rely on the contents of the replying affidavit. For good measure, the Respondent posited that same was adopting and reiterating the contents of the replying affidavit. 12.Thereafter, the parties to the subject application conceded to the court making a ruling taking into account the supporting affidavit; the supplementary affidavit; the replying affidavit in opposition thereto and the submissions. 13.I have considered the application; the affidavit in support thereof; the affidavit in opposition thereto; and the submissions canvassed/highlighted by the applicants. I come to the conclusion that the determination of the subject matter turns on three [3] key issues. The issues are: Whether there does exist a lawful decree capable of being executed; whether this court can proceed to and issue a decree in favour of the applicant; and whether the prayer for garnishee nisi is legally tenable or otherwise. 14.Regarding the first issue, namely; whether there does exist a lawful decree capable of being executed, it is important and critical to point out that if and I say if, the Applicants are keen to undertake any execution, then same are obliged to establish that there is a valid and lawful decree in the eye[s] of the Law. 15.It is important to point out that a lawful and valid decree constitutes a prerequisite condition prior to and before levying execution. To this end, there is no gainsaying that the Applicants herein cannot approach the court for purposes of execution until and unless same can prove; and demonstrate the existence of a lawful decree. 16.I am aware that learned counsel for the Respondent has contended that no decree has since been issued over and in respect of the instant matter. It is common ground that a decree was indeed issued. Furthermore, the said decree is the subject of an appeal before the Court of Appeal. 17.Be that as it may, there is need to distinguish between the decree that was issued and which underpins the appeal on one hand and the current application. Notably, the current application is separate and distinct from the decree, which is the subject of appeal. Having pointed out the foregoing, I wish to now clarify that what the Applicants are pursuing relates to a ruling touching on and concerning the Ruling of this Court; and not a judgment. To this end, there is no gainsaying that no decree can issue out of the named Ruling. Suffice it to point out that the Ruling in question can only birth an Order; and not a decree. 18.Moreover, it is not lost on me that only one decree can issue and be executed for in a particular file. Nevertheless, I am aware that there are instances where the court of law can issue a partial [preliminary] decree and a final decree. 19.Be that as it may, the question that underpins the subject issue relates to whether a formal decree can issue; and is required for purposes of execution. Instructively, no such decree has ever been issued as pertains to and in respect of the sum of Kshs. 50,000,000/=only. 20.Further, and in addition, I wish to point out that no decree has ever been issued in favour of the Applicants herein. Consequently, and in the premises, I am not ready to find and hold that there does exist a lawful decree or otherwise, save for the decree underpinning the appeal and which Decree flows from the Judgment of the Court. 21.Section 2 of the Civil Procedure Act, Chapter 21, Laws of Kenya, defines what constitutes a Decree. The said section stipulates thus:“decree" means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final; it includes the striking out of a plaint and the determination of any question within section 34 or section 91, but does not include—(a)any adjudication from which an appeal lies as an appeal from an order; or(b)any order of dismissal for default: Provided that, for the purposes of appeal, "decree" includes judgment, and a judgment shall be appealable notwithstanding the fact that a formal decree in pursuance of such judgment may not have been drawn up or may not be capable of being drawn up; 22.Simply put, there is no gainsaying that the Ruling and the orders of the court which decreed [directed] the refund of the security money does not, by and of itself, constitute a decree. Moreover, it is not lost on me that one particular matter, the one beforehand not excepted, can only accrue a single decree and not otherwise. 23.Consequently, and in the premises, I am afraid that there is no decree which can underpin the execution or the intended execution in the manner sought by the applicants vide the subject Application. 24.Next is the question of whether this court can issue the decree based on the subject application, either in the manner sought or otherwise. To start with, a decree is a final expression of a judgment and effectively and effectually determines the rights and liabilities of the parties to the suit/ matter. Be that as it may, the Order[s] that the court issued in respect of the subject matter cannot constitute a decree. 25.Notwithstanding the foregoing, the Applicants have sought to invite the court to issue a formal decree for purposes of execution. Nevertheless, I wish to clarify that this court cannot engage itself with and thereafter proceed to [sic] issue a decree in respect of an application. 26.Sadly, a decree can only be issued and granted to the parties after the hearing and determination of the substantive suit. In respect of the subject matter, there is no gainsaying that the substantive suit was heard and determined. A decree does exist, and the same is the foundation of the appeal to the Court of Appeal. 27.Be that as it may, I wish to clarify that no decree can issue or be granted based on the subject application, either as sought or at all. Quite clearly, there can never be two [2] sets of decrees in respect of the same matter. 28.Nevertheless, I am alive to the issues raised in respect of the subject matter. In particular, there is no gainsaying that the court ordered and directed that the sum of Ksh 50,000,000 Only, be restored or restituted to the court. I am also alive to the fact that the Respondent herein has neither complied nor adhered to the terms of the ruling of the court. 29.However, I wish to clarify that the orders of the court which have since been breached and violated can only be enforced by way of contempt proceedings, where the Respondent has failed to comply. Suffice it to state that the provisions of section 29 of the Environment and Land Court act, 2011 are succinct and apt; and same were meant to address situation[s] where the Orders of the Court have not been complied with; or disregarded. 30.Without belaboring the point, I am afraid there is no basis upon which this court can be asked to issue the orders sought. On the contrary, the Applicants are at liberty to take note of the relevant provisions of the law; and thereafter to return to court, albeit where necessary. 31.Before concluding on the matter, there is one issue that has been raised by the respondent. The issue touches on and concerns the involvement of the police in the execution of civil matters. It is settled law that execution of court decrees, [if any], can only be undertaken by a licensed auctioneer and not otherwise. 32.Towards this end, I must point out that, [if and only if it] becomes necessary to levy execution or attachment then the Applicant[s] can only seek the intervention of the Auctioneers. Further and in addition, the police can only provide reasonable security, but not engage in the act of execution per se. 33.The position of the Law to this end was addressed in the case of Kamau Mucuha v Ripples Ltd [1993] KECA 82 (KLR). The Court of Appeal underscored the fact that the police ought not to be involved in civil process. The Court stated thus:……..,But it would, in any event, be unlawful to utilize the police in a civil action for the purpose of effecting or aiding private evictions or reinstatements. 34.Turning on to the third issue, namely; whether the prayer for garnishee nisi is legally tenable or otherwise, it is important to recall and reiterate that garnishee proceedings form a special cadre of execution proceedings. The only difference is that the garnishee proceedings are taken in an endeavor to attach the assets/monies belonging to the judgment debtor, but which are held or under the custody of a third party. The third party [Garnishee] may be a bank, a financial institution or such other body known to law. 35.Garnishee proceedings are regulated by the provisions of Order 23 of the Civil Procedure Rules, 2010. The provisions of Order 23 Rule 1 of the Civil Procedure Rules stipulate thus:1.Order for the attachment of debts [Order 23, rule 1](1)Acourt may, upon the ex parte application of a decree-holder, and either before or after an oral examination of the judgment-debtor, and upon affidavit by the decree-holder or his advocate, stating that a decree has been issued and that it is still unsatisfied and to what amount, and that another person is indebted to the judgment-debtor and is within the jurisdiction, order that all debts (other than the salary or allowance coming within the provisions of Order 22, rule 42 owing from such third person (hereinafter called the “garnishee”) to the judgment-debtor shall be attached to answer the decree together with the costs of the garnishee proceedings; and by the same or any subsequent order it may be ordered that the garnishee shall appear before the court to show cause why he should not pay to the decree- holder the debt due from him to the judgment-debtor or so much thereof as may be sufficient to satisfy the decree together with the costs aforesaid.(2)At least seven days before the day of hearing the order nisi shall be served on the garnishee, and, unless otherwise ordered, on the judgment-debtor.(3)Service on the judgment-debtor may be made either at the address for service if the judgment-debtor has appeared in the suit and given an address for service, or on his advocate if he has appeared by advocate, or if there has been no appearance then by leaving the order at his usual residence or place of business or in such manner as the court may direct. 36.It is instructive to point out that garnishee proceedings can only be taken out against a designated person, or body, which is said to be holding the assets/credits [if any] on behalf of the judgment debtor. In this case, it was incumbent upon the applicants to stipulates the details of the garnishee [if any] that is said to be holding the monies that are sought to be attached. 37.It is not lost on me that the subject application does not allude to or capture any garnishee, whether same be a bank or financial institution. In addition, it is apparent that no bank accounts [if any] have been disclosed at the foot of the application. 38.Simply put, the orders of garnishee nisi or otherwise have been sought against undisclosed garnishees and in respect of undisclosed accounts. The law on Garnishee requires specificity in terms of the identity of the Garnishee [Third Party holding the assets/ monies] and the details of [sic] the accounts to be attached. 39.Quite clearly, the purported garnishee proceedings [if at all the proceedings can be so described] have been taken at large. Surely, garnishee proceedings cannot be taken and no garnishee order can issue in vacuum. In addition, it is crystal clear that garnishee proceedings can only be taken to attach the monies/credits due and owing on behalf of a judgment debtor. However, in respect of the instant matter there is no gainsaying that the respondent is not a judgment debtor. There is no Judgment or decree due as against the Respondent. 40.Suffice it to state that the respondent was ordered to refund the sum of Kshs. 50,000,000/= only to the Deputy Registrar of this Court, but the said order does not constitute the respondent as a judgment debtor. Furthermore, the said order does not constitute a decree to warrant execution in the manner sought herein. 41.In a nutshell, I am afraid that the limb of the subject application that seeks issuance of a garnishee order is premature, misconceived and legally untenable. It behooves the applicants to return to the drawing board and to discern and to discern the appropriate mechanism for the realization of the orders of the court. Conclusion 42.The Respondent may not have complied with the orders of the court. However, the failure to comply does not pave the way for or found a basis for[sic] the issuance of a decree or the commencement of execution proceedings in the manner sought. 43.On the contrary, the failure by the Respondent to comply with the orders of the court constitutes disobedience of lawful court orders and paves the way for the commencement of contempt of court proceedings, albeit subject to the provisions of law. Moreover, the contempt proceedings, where appropriate, can be commenced at the instance of the deputy registrar or such other interested parties 44.Regarding costs, I wish to state that even though costs follow the event, the court still retains discretion. The discretion must be exercised on good ground[s] and well-established principles. The scope of the court's discretion as pertains to cost is stipulated under Section 27 of the Civil Procedure Act, Chapter 21, Laws of Kenya. 45.In respect of the subject matter, it is important to underscore that the Respondent has failed to restore/ restitute the monies that were illegally released to him. The conduct of the Respondent does not meet the threshold of equity. To this end, the Respondent herein cannot be dignified with an award of costs. 46.Further, and in any event, there is no gainsaying that it is the failure by the Respondent to comply with and adhere to the orders of the court on refund of the monies that precipitated the subject application. In this regard, an award of costs to the Respondent, if at all, shall be tantamount to rewarding contempt. 47.To my mind, such an endeavor will be antithetical to the rule of law. Final orders 48.Flowing from the foregoing, the final orders that commend themselves to me are:a.Notice of Motion Application dated 23. 3. 2026 be and is hereby declined.b.There shall be no orders as to cost. DATED, SIGNED AND DELIVERED AT MERU THIS 21ST DAY OF MAY, 2026OGUTTU MBOYA, FCIArb;CPM [MTI-EA]JUDGEIn the presence of-:C/A ZakayoMr. George Kiilu and Francis Kiilu – Applicants.Mr. John Muthomi – Advocate [the Respondent]N/A for the Defendant