Milly Glass Works Limited v Kenya Railways Corporation & another
The bottom line
#Supreme Court strikes out appeal for lack of jurisdiction as it involved statutory, not constitutional, interpretation.
What this practically means
#Milly Glass Works won a case against Kenya Railways in the Environment and Land Court. When it tried to garnish Kenya Railways' bank account, the Court of Appeal blocked that, citing a law protecting Kenya Railways' assets. Milly Glass appealed to the Supreme Court, arguing the law violated the Constitution. The Supreme Court disagreed, saying the lower courts only applied the statute, not interpreted the Constitution. So the Supreme Court had no power to hear the appeal and struck it out.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal lies as of right under Article 163(4)(a) of the Constitution.
- 2.Whether the appeal is otherwise moot.
- 3.Whether the Court of Appeal erred in failing to declare section 88 of the KRC Act as unconstitutional or to read the section to conform to the Constitution.
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) of the Constitution to hear an appeal where the Court of Appeal's determination focused on the statutory application of section 88 of the KRC Act rather than its constitutional validity.
The Supreme Court lacks jurisdiction under Article 163(4)(a) because the appeal does not involve the interpretation or application of the Constitution. The lower courts' determinations were confined to the statutory application of section 88, not its constitutional validity.
The Court applied the test from Rutongot Farm Ltd v Kenya Forest Service & 3 others, examining what questions were in issue at the High Court and Court of Appeal. The ELC and Court of Appeal both focused on whether section 88 barred garnishee proceedings, not on whether the provision was constitutional. The appellant's argument that the Court of Appeal failed to apply a broad constitutional lens was an attempt to transform a statutory interpretation issue into a constitutional question. The Court distinguished the present case from Gichuru v Package Insurance Brokers Ltd, noting that here the constitutional validity of section 88 was not in issue before the lower courts.
Whether the appellant improperly invoked both limbs of the Supreme Court's jurisdiction under Article 163(4)(a) and (b) simultaneously.
The appellant did not improperly invoke both limbs. The appeal under Article 163(4)(a) was confined to the decision in Civil Appeal No E035 of 2023, while the pending application for leave under Article 163(4)(b) related to the separate decision in Civil Appeal No E083 of 2022.
The Court examined the appellant's procedural approach and found that the appellant had confined this appeal strictly to Article 163(4)(a). The pending application for certification before the Court of Appeal concerned a different portion of the same judgment. The Court cited Twaha v Abdalla & 2 others for the proposition that a litigant may file an appeal as of right on constitutional issues and separately seek leave for matters of general public importance, and it is then for the Supreme Court to decide whether to consolidate them.
Legal principles established
#- For an appeal as of right to the Supreme Court, the lower court's decision must be based on interpreting or applying the Constitution, not just mentioning it.
- A party cannot use both Article 163(4)(a) and (b) in the same appeal; they must choose one path or seek consolidation.
- Mere mention of constitutional principles in a judgment does not turn a statutory dispute into a constitutional one.
- The Supreme Court lacks jurisdiction if the core issue in the lower courts was statutory application, not constitutional validity.
- The constitutional question must be the central basis of the Court of Appeal's decision for an appeal as of right.
Court orders
#- 1.The Notice of Preliminary Objection dated 10th January 2025 and filed on 17th January 2025 be and is hereby allowed.
- 2.The Petition of Appeal dated 27th November 2024 and filed on 4th December 2024 be and is hereby struck out.
- 3.We hereby direct that the sum of Kshs 6,000 deposited as security for costs herein be refunded to the appellant.
- 4.The appellant shall bear the costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal at Mombasa
- Civil Appeal No E035 of 2023
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#A declaration that the Court of Appeal erred in finding that section 88 of the KRC Act provides a complete bar to execution against the 1st respondent.
The Court lacked jurisdiction to entertain the appeal as it did not involve the interpretation or application of the Constitution within the meaning of Article 163(4)(a).
A declaration that section 88 of the KRC Act violates the Constitution and is invalid.
The constitutional validity of section 88 was not in issue before the lower courts; the issue was its applicability in garnishee proceedings.
An order setting aside the judgment and decree of the Court of Appeal in so far as it allowed Civil Appeal No E035 of 2023.
The Court lacked jurisdiction to entertain the appeal.
Costs
The appellant shall bear the costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Since the present appeal fails to meet this constitutional threshold, we find that the Court lacks jurisdiction to entertain the appeal and the merits thereof. In the absence of jurisdiction, we can only down our tools and strike out the appeal, which we hereby do.
The mere mention of constitutional principles in a judgment does not, by itself, elevate the dispute to one of constitutional interpretation or application within the meaning of article 163(4)(a).
a party cannot concurrently rely on both limbs of jurisdiction within the same appeal, as such an approach would undermine the procedural hierarchy established under the Constitution.
for an issue to be appealable under article 163(4)(a) of the Constitution, the lower court's determination must have involved a substantive trajectory of constitutional interpretation or application.
Key timeline
#Practical implications
#Jurisdiction trap for constitutional appeals
When appealing to the Supreme Court under Article 163(4)(a), ensure the lower courts actually decided a constitutional issue, not just mentioned constitutional principles. If the core dispute is statutory interpretation, the Supreme Court will strike out. Consider seeking leave under Article 163(4)(b) for matters of general public importance instead. This case reinforces that mere invocation of constitutional language is insufficient.
Protection of state corporation assets
Businesses contracting with state corporations like Kenya Railways should be aware that statutory provisions may shield these entities from execution or garnishment. Section 88 of the KRC Act prevents attachment of KRC assets. When pursuing claims, consider alternative enforcement mechanisms or challenge the constitutionality of such provisions at the earliest stage, not on appeal.
Know your enforcement options against state agencies
If you win a case against a state corporation, you may not be able to seize their bank accounts or property if a statute protects them. This case shows that courts will apply the law as written. To challenge such protections, you must raise constitutional arguments at the trial court level, not wait until the Supreme Court.
Frequently asked questions
#Can I appeal to the Supreme Court of Kenya if my case involves constitutional issues?+
Only if the lower courts actually interpreted or applied the Constitution as the central basis of their decision. Merely mentioning constitutional principles is not enough. The Supreme Court will strike out appeals that are really about statutory interpretation.
What is section 88 of the Kenya Railways Corporation Act?+
Section 88 protects Kenya Railways Corporation's assets from execution or attachment, including garnishee proceedings. This means if you win a judgment against KRC, you cannot seize their property or bank accounts unless you successfully challenge the constitutionality of that section.
How do I challenge a statutory provision that limits my rights in Kenya?+
You must raise the constitutional challenge at the earliest opportunity in the trial court. If you wait until the Court of Appeal or Supreme Court, the higher courts may refuse to hear it, especially if the lower courts decided the case on statutory grounds without addressing the constitutional question.
What happens if I file an appeal under the wrong jurisdiction in Kenya's Supreme Court?+
The Supreme Court will strike out your appeal and order you to pay costs. In this case, the appellant also lost the security deposit. It is crucial to correctly identify whether your appeal is as of right under Article 163(4)(a) or requires leave under Article 163(4)(b).
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Milly Glass Works Limited v Kenya Railways Corporation & another[2025] KESC 72 (KLR)5 Dec 2025followed
Cite this brief
#Cite this brief
Caselaw, "Milly Glass Works Limited v Kenya Railways Corporation & another", Case Analysis (2025). Petition E041 of 2024. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/26/eng@2025-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.