Milly Glass Works Limited v Kenya Railways Corporation (Environment & Land Case E105 of 2024) [2025] KEELC 5069 (KLR)
The bottom line
#A Kenyan court blocked Kenya Railways from seizing Milly Glass Works' property over disputed rent, and threw out the State firm's defence papers because its own lawyer improperly swore them.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata and/or sub judice
The Preliminary Objection fails because the present dispute arises from the Defendant's fresh demand letter of 28th November 2024 and the Defendant's own pleadings and verifying affidavit contradict the plea of res judicata.
The court traced the prior litigation over the rent review but held the present claim was precipitated by a new demand of Kshs 62,293,000/= not previously adjudicated. The Defendant's Defence and Counterclaim demanded the same sum, and its Verifying Affidavit averred there were no previous proceedings over the same subject matter, making the res judicata plea untenable. The objection was accordingly dismissed.
Validity of the Replying Affidavit commissioned before the Defendant's own advocate
The Replying Affidavit is fatally defective and struck; the application proceeds as unopposed.
Section 4 of the Oaths and Statutory Declarations Act prohibits a commissioner for oaths from acting in a matter in which he is advocate for any party or interested. Wamuti Ndegwa, who commissioned the affidavit, practises under Ndegwa Sitonik & Karina Advocates, the firm acting for the Defendant. Relying on Caltex Oil and Lesrima Simeon Saimanga, the court held such an affidavit is not an affidavit in law and is struck out.
Whether a temporary injunction should issue against distress for rent
A temporary injunction is granted in terms of alternative prayer 4, tied to the pending Supreme Court Petition and certification.
With the Defendant's affidavit struck out, the application stood effectively unopposed. The court found that the exact rent payable depends on pending appellate decisions on the legality of the rent review, so the Plaintiff established a prima facie case with probability of success, justifying injunctive relief against distress pending the outcome of the appeal process.
Legal principles established
#- An advocate acting for a party in a matter cannot administer an oath or commission an affidavit for use in that matter; the bar is absolute and breach goes to the root of the affidavit
- An affidavit commissioned in contravention of section 4 of the Oaths and Statutory Declarations Act is not an affidavit known in law and cannot be cured by Order 19 Rule 7
- Res judicata does not apply where the subject matter of the present dispute (a fresh demand for rent arrears by letter) is not the same as that previously determined
Court orders
#- 1.The Notice of Preliminary Objection dated by the Defendant is dismissed
- 2.The Notice of Motion dated 9th December 2024 is allowed in terms of alternative prayer No. 4
- 3.Costs of the application shall be in the cause
- Jurisdiction invoked
- Original jurisdiction under the Environment and Land Court Act over disputes relating to a lease of land parcel Mombasa/Block XLVIII/134 (specific enabling provision not cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Milly Glass Works Limited v Kenya Railways Corporation (Environment & Land Case E105 of 2024) [2025] KEELC 5069 (KLR)", Case Analysis (2025). Mombasa ELC (suit number not stated in judgment); Notice of Motion dated 9th December 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5069/eng@2025-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.