Milly Glass Works Limited v Kenya Railways Corporation & another
The bottom line
#Supreme Court dismisses bid to appeal lease dispute, affirming private contract issues are not of general public importance.
What this practically means
#Mohamed Rashid, trading as Mombasa Glass Works, tried to take his lease dispute with Kenya Railways to the Supreme Court. He asked the Court of Appeal to certify the case as one of general public importance, but they refused. He then asked the Supreme Court to review that refusal. The Supreme Court agreed with the Court of Appeal. It said the case was just about a private lease agreement, not a matter affecting the whole public. The Court also said Rashid tried to raise a new issue at the last minute, which is not allowed. His application was dismissed and he must pay costs.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal properly declined to certify the proposed questions as matters of general public importance under Article 163(4)(b) of the Constitution.
- 2.Whether the applicant can introduce a new question (the third proposed question) at the review stage that was not part of the certification proceedings before the Court of Appeal.
Key legal issues
#Whether the Court of Appeal properly applied the threshold for certification of general public importance under Article 163(4)(b) of the Constitution.
The Court of Appeal properly applied the threshold; the proposed questions do not transcend the parties' private interests and are purely questions of fact.
The Supreme Court reviewed the Court of Appeal's decision and found that the applicant's proposed questions—concerning interpretation of a lease agreement and alleged breach of a court order—were purely factual and did not raise substantial points of law of general public importance. The Court emphasized that the dispute arose from a specific lease agreement and did not affect the public at large. The applicant failed to demonstrate any inconsistencies in Court of Appeal decisions or any broader public interest warranting Supreme Court intervention.
Whether the applicant can introduce a new question at the review stage that was not part of the certification proceedings before the Court of Appeal.
No, a party cannot introduce a new question at the review stage; the review is limited to the decision of the Court of Appeal on the questions presented to it.
The Supreme Court held that the review application under Article 163(4)(b) is not a fresh application but a review of the Court of Appeal's certification decision. Introducing a new question (the third proposed question regarding Section 88 of the KRC Act) that was not before the Court of Appeal is improper. Additionally, the applicant had previously attempted to raise the same issue under Article 163(4)(a) and failed, and cannot now seek a 'second bite at the cherry' through the certification route.
Legal principles established
#- A party cannot introduce a new question at the review stage of a certification application that was not part of the certification proceedings before the Court of Appeal.
- A party cannot, having failed under one appeal route to the Supreme Court, return to invoke the certification route as an alternative path.
- Mere apprehension of a potential miscarriage of justice cannot, of itself, constitute a basis for granting certification of a matter as one of general public importance.
- For a matter to be certified as of general public importance, the proposed questions must transcend the specific circumstances of the parties and affect the public at large.
- The Supreme Court's review of a certification decision is limited to the questions presented to the Court of Appeal.
Court orders
#- 1.The Originating Motion dated 3rd July 2025 and filed on 7th July 2025 be and is hereby dismissed.
- 2.The applicant shall bear the costs of the respondent.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal at Mombasa
- Msa Civil Application No. E131 of 2024
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution, Sections 15 & 15B of the Supreme Court Act CAP 9B, and Rule 33 of the Supreme Court Rules 2020
Relief refused
#Review of the Court of Appeal's decision declining leave to appeal to the Supreme Court
The proposed questions do not transcend the specific circumstances of the parties and are purely questions of fact; the applicant failed to meet the threshold for certification of general public importance.
Introduction of the third proposed question regarding Section 88 of the Kenya Railways Corporation Act
The third question was not part of the certification proceedings before the Court of Appeal and cannot be introduced at the review stage; also, the applicant had previously attempted to raise the same issue under Article 163(4)(a) and failed.
Costs
The applicant shall bear the costs of the respondent.
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.
The proposed questions that the applicant seeks to raise before this Court do not transcend the specific circumstances of the parties.
As this is a review and not a fresh application, it is improper to introduce a new question at this stage, and the Court cannot address such new issues as presented before us.
A party cannot, having failed under one route, return to invoke the other as an alternative path to this Court.
Mere apprehension of a potential miscarriage of justice cannot, of itself, constitute a basis for granting certification.
The Originating Motion dated 3rd July 2025 and filed on 7th July 2025 be and is hereby dismissed.
The applicant shall bear the costs of the respondent.
Key timeline
#Practical implications
#Strategic use of appeal routes
When seeking to appeal to the Supreme Court, choose your route carefully. If you fail under Article 163(4)(a) (appeal as of right), you cannot later try the certification route under Article 163(4)(b) for the same issue. Also, ensure all proposed questions are raised before the Court of Appeal; you cannot introduce new ones at the Supreme Court review stage. This saves time and costs.
Lease disputes and finality
This case underscores that lease interpretation disputes are often considered private contractual matters, not of general public importance. Businesses should not expect Supreme Court intervention unless the issue affects many parties or has broad legal implications. Focus on getting the best outcome in the lower courts.
Limited Supreme Court access
The Supreme Court is not a routine appeal court. For most individual disputes, especially those involving specific contracts or facts, the Court of Appeal is the final stop. Only cases with wide public impact qualify. If you lose at the Court of Appeal, your chances of Supreme Court review are very low unless you can show a major legal principle is at stake.
Frequently asked questions
#How do I appeal to the Supreme Court of Kenya?+
You can appeal as of right in certain cases (Article 163(4)(a)) or seek certification from the Court of Appeal that the matter is of general public importance (Article 163(4)(b)). If the Court of Appeal refuses certification, you can apply to the Supreme Court for review, but you cannot introduce new issues not raised before the Court of Appeal.
What is a matter of general public importance in Kenya?+
It is a legal issue that transcends the interests of the parties and affects the public at large. Purely factual disputes or private contract interpretations usually do not qualify. The Supreme Court has set a high threshold; mere apprehension of injustice is not enough.
Can I introduce new arguments at the Supreme Court review stage in Kenya?+
No. The Supreme Court has held that a review of a certification decision is not a fresh application. You cannot raise new questions that were not part of the certification proceedings before the Court of Appeal. All proposed questions must be presented to the Court of Appeal first.
What happens if I fail to appeal under Article 163(4)(a) in Kenya?+
You cannot then try to use the certification route under Article 163(4)(b) as a second chance for the same issue. The Supreme Court has barred this practice. You must choose the correct route initially and cannot switch after failure.
Cite this brief
#Cite this brief
Caselaw, "Milly Glass Works Limited v Kenya Railways Corporation & another", Case Analysis (2025). Civil Application Sup E020 of 2025. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/72/eng@2025-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.