Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNotice of Motion dated 22nd January 2025 (Mombasa ELC, suit by Plaint dated 9/12/2024)· [2026] KEELC 2248 (KLR)

Milly Glass Works Limited v Kenya Railways Corporation (Environment and Land Case E105 of 2024) [2026] KEELC 2248 (KLR)

Environment and Land Court
23 April 2026
JOJ.O. Olola
1,496 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
Kenya Railways Corporation, the Defendant, by Notice of Motion dated 22nd January 2025 sought dismissal of Milly Glass Works Limited's suit as res judicata to Mombasa ELC Case No. 135 of 2012 and the Court of Appeal decision in Civil Appeal No. E083 of 2022, and alternatively summary judgment on its counterclaim for Kshs 62,293,000/= plus interest. The Plaintiff opposed, arguing that Order 36 of the Civil Procedure Rules does not apply to counterclaims and that its Defence to the Counterclaim raises triable issues; it also filed Grounds of Opposition contending that the res judicata prayer had already been determined when the court dismissed a Preliminary Objection on 4th July 2025. The court agreed that the res judicata question could not be re-opened by application, noting the Defendant had appealed that ruling. On summary judgment, the court held that Order 36 Rule 1 applies only where the defendant has appeared but not filed a defence; here a Defence to the Counterclaim had been filed. Applying Job Kilach v Nation Media Group, the court found the Defence raised a bona fide triable issue as to whether Kshs 62,293,000/= was the correct rent due for 2012 to 2022, a matter requiring a full hearing. The Motion was dismissed with costs to the Plaintiff/Respondent.

Key legal issues

#
01

Res judicata on prayer 1 of the Motion

Holding

Prayer 1 was res judicata as the res judicata question had been determined in the ruling of 4th July 2025 dismissing the Preliminary Objection

Reasoning

The Defendant had first raised res judicata in a Notice of Preliminary Objection dated 17th January 2025, which was dismissed in the ruling of 4th July 2025, and an appeal was lodged. The court held that having pronounced itself, the issue could not be re-raised by application. The court also noted it was not persuaded that the issues in ELC No. 135 of 2012 were the same as in this suit.

p. 3
02

Availability of summary judgment on the counterclaim

Holding

Summary judgment was not available because a Defence to the Counterclaim had been filed raising triable issues

Reasoning

Order 36 Rule 1 permits summary judgment only where the defendant has appeared but not filed a statement of defence. The Plaintiff had filed a Defence to the Counterclaim disputing the claimed rent arrears of Kshs 62,293,000/=. Whether that was the correct rent due for 2012 to 2022 could only be determined at a full hearing with evidence.

Legal principles established

#
  • An issue already pronounced upon by the court cannot be re-litigated through a subsequent interlocutory application
  • Summary judgment under Order 36 Rule 1 is available only where the defendant has appeared but not filed a statement of defence
  • Summary judgment cannot be granted where a defence raises a bona fide triable issue

Court orders

#
  1. 1.The Notice of Motion dated 22nd January 2025 is dismissed
  2. 2.Costs of the application awarded to the Plaintiff/Respondent

Authorities

#

Legislation

  • Civil Procedure RulesOrder 36 Rule 1

Cases cited (2)

  • Job Kilach v Nation Media Group Ltd & Others
    (2015) eKLR
  • Giciem Construction Company v Amalgamated Trade & Services
    LLR No 103 (CAK)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; Civil Procedure Rules, Order 36

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Milly Glass Works Limited v Kenya Railways Corporation (Environment and Land Case E105 of 2024) [2026] KEELC 2248 (KLR)", Case Analysis (2026). Notice of Motion dated 22nd January 2025 (Mombasa ELC, suit by Plaint dated 9/12/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2248/eng@2026-04-23

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