https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9810

Kuria & 83 others v Director of Public Prosecutions & 6 others (Judicial Review E107 of 2026) [2026] KEHC 9810 (KLR) (Judicial Review) (3 July 2026) (Judgment) Neutral citation: [2026] KEHC 9810 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E107 of 2026 WM Musyoka, J July 3, 2026 Between Jacinta Nyambura Kuria & 83 others & 83 others & 83 others Applicant and The Director of Public Prosecutions 1st Respondent The Hon Attorney General 2nd Respondent The Inspector General of Police 3rd Respondent Philip Jamuhuri Mainga 4th Respondent Kenya Railways Corporation 5th Respondent Public Procurement Regulation Authority 6th Respondent and Kenya Human Rights Commission Interested Party Judgment 1.The Originating Motion herein, dated 8th April 2026, seeks 6 principal orders, being a declaration that the failure, by the 1st respondent to investigate or prefer charges of manslaughter against the 4th and 5th respondents, over the Maai-Mahiu flash floods of 28th April 2024, violated the right to fair administrative action, and discriminated against the applicants and the victims; an order to compel the 1st and 3rd respondents to collect evidence from the applicants and other victims, and to prosecute the 4th and 5th respondents, or their officers, within 30 days; leave be given to the applicants, to initiate private prosecution, in the event the 1st and 3rd respondents fail to act within 30 days, of an order being given herein, for them to investigate the claims and to prosecute the 4th and 5th respondents; an order to compel the 2nd respondent to furnish and publish the report of the board of the 5th respondent, upon inquiry into the accidents that led to the Maai-Mahiu floods of 2020 and 2024; an order to compel the 4th, 5th and 6th respondents to supply certain information to the applicants; and an order for compensation, to the tune of Kshs. 500,000.00, to each of the 5 petitioner associations. There is also a claim for costs. 2.The grounds, upon which the originating motion is premised, are set out on the face of the application. It is averred that on 29th April 2024 flash floods swept off people and property in several villages within the Maai-Mahiu area of Naivasha, Nakuru; the floods arose from a burst of a railway tunnel, releasing accumulated flood waters into the villages below; the said tunnel ought to have been under 24-hour surveillance, given the frequency of heavy rainfall in the area, based on rules 234 and 235 of the General Rules of the Kenya Railways of 1984; the 4th and 5th respondents failed to avert the danger, by neglect and lack of duty of care; the negligence and breach of duty of care led to deaths, attributable to the 4th respondent, for which he should be held criminally liable, either for manslaughter, under section 202 of the Penal Code, Cap 63, Laws of Kenya, or the misdemeanours defined in sections 243 and 244 of the Penal Code; the respondents had failed to act, despite notices being issued to them; there was selective and discriminatory conduct, with respect to arrest and prosecution, when the Solai Dam Tragedy of 2018 is taken into account; reconstruction of the damaged infrastructure was undertaken, through an irregular and clandestine procurement, done in 2025, among others. 3.The factual background to the matter is set out in an affidavit of Mr. Bernard Kamau, sworn on 8th April 2026, which largely regurgitates the grounds on the face of the application. The principal importance of the affidavit is the documents that it places on record, by way of annextures. The first annexture is an affidavit, by an employee of the 5th respondent, detailing the circumstances surrounding the occurrence of the flash floods on 29th April 2024, which affidavit was filed in Naivasha ELC No. E001 of 2025. There is a bundle of 3 photographs, providing a pictorial of the loss and damage to the railway. There is a letter, dated 25th April 2025, from National Environmental Management Authority, acknowledging receipt of an environment impact assessment report. There is a copy of the General Rules of the Kenya Railways, 1984, christened the Locomotion Bible. There is a bundle of letters, from the Senior Chief of Maai-Mahiu Location, all dated 12th February 2025, with respect to those who died in the said flash floods. There is a ruling, of the Court of Appeal, in the matter of the Solai Dam Tragedy, in Nakuru Criminal Appeal (Application) No. 2 of 2020. There is also a bundle of correspondence between the Advocates for the applicants and the 2nd, 5th and 6th respondents, and the Commission on Administrative Justice... 4.The originating motion, together with a mention notice, was served on the 6 respondents and the interested party. An affidavit of service was filed, dated 30th April 2026. A copy of the face of the originating motion and of the mention notice, are attached, to evidence receipt of the papers by the parties who were served. 5.The parties served have filed responses, except for the interested party. 6.The 1st respondent filed grounds of opposition, dated 4th May 2026. Its grounds revolve around the application being premature, for no investigations file has been forwarded to it for consideration of prosecution; the 1st respondent not having a mandate to investigate; the 1st respondent being constitutionally mandated to independently review evidence and determine whether to proffer charges; and the doctrine of exhaustion being violated. 7.In addition to the grounds of opposition, the 1st respondent has also filed a replying affidavit, by Mr. Remyngtone Mwandawiro, sworn on 29th May 2026. It is averred that the letters, dated 11th November 2024 and 18th November 2024, written by the applicants, addressed to the 1st respondent, were not attached to the supporting affidavit. It is stated that the applicants did file a complaint with the 3rd respondent, who is the proper person or office constitutionally and statutorily mandated to receive complaints relating to criminal matters, and to investigate those complaints, and that the role of the 1st respondent is limited to review of investigation files, which kicks in only upon completion of investigations. It is further averred that charges can only be proffered upon there being sufficient evidence, with a realistic prospect of a conviction. It is argued that it would be contrary to public interest, and the interest of administration of justice, to institute criminal proceedings in the manner sought by the applicants, without review of the investigation file. 8.The 2nd respondent has also filed grounds of opposition, dated 4th May 2026, raising a single issue, that the application offends the mandatory provisions of section 9(2)(4) of the Fair Administrative Action Act, Cap 7C, Laws of Kenya. 9.The 3rd respondent has filed a replying affidavit, sworn on 12th June 2026, by No. 77258, Police Corporal Peter Orwa, an investigator, attached to the Directorate of Criminal Investigations, at Naivasha. He avers that their office was involved in investigating the matter, the same having been reported by the area Assistant Chief, at the Maai-Mahiu Police Station. A rescue operation was mounted, where 76 bodies were recovered. The police reached out to the National Environmental Management Authority office at Naivasha, the 5th respondent and the Disaster Management County Government of Nakuru, but these entities did not respond to the police enquiries, neither did The Water Resources Authority and the National Water Harvesting and Storage Authority. Officers from the Directorate of Criminal Investigations at Naivasha, nevertheless, visited the scene, took pictures and documented it generally. Bodies were identified, and statements recorded from family members, postmortems were conducted and the bodies released for burial. Investigations established that the floods were caused by rainwater, which had accumulated near the railway line, before sweeping downstream, wreaking havoc in the process. It is averred that the police service has not failed in its duty, disclosing that an inquest file was opened, being Public Inquest File No. 1 of 2024, which is undergoing final administrative processes, after which it shall be forwarded to the 1st respondent, for independent review, and further action. It is averred that a complaint against the police should have been processed under section 24 of the Independent Policing Oversight Authority Act, Cap. 86, Laws of Kenya, arguing that that process should have been exhausted, prior to judicial review proceedings being mounted. 10.3 documents are annexed to that affidavit, being a letter written by the Directorate of Criminal Investigations, Naivasha office, to the National Environmental Management Authority, Naivasha Sub-County Office, dated 6th June 2024; a letter written by the Directorate of Criminal Investigations, Naivasha office, to the 5th respondent, dated 7th June 2024, calling for various reports; and a letter addressed to the Nakuru County Government Disaster Management Authority, by the Directorate of Criminal Investigations, Naivasha office, dated 7th June 2024, calling for a report on the incident. 11.The 4th and 5th respondents have filed a replying affidavit, sworn on 15th June 2026, by Mr. Stanley Gitari, the Company Secretary and General Manager Legal Services of the 5th respondent. The flash floods are conceded, but liability is denied. It is averred that no evidence has been tabled, to demonstrate that any complaint had been lodged against the 1st and 3rd respondents to warrant any administrative action or intervention being sought. It is argued that the correspondence attached did not constitute complaints, requesting for investigations, or to evidence wrongdoing on the part of the respondents. It is asserted that no legal or factual basis has been established for authority to mount a private prosecution or to compel prosecution of the 4th and 5th respondents. It is asserted that the 4th and 5th respondents have no control over the conduct of investigations and the mounting of a prosecution by the 1st and 3rd respondents. It is averred that personal criminal liability cannot be attributed to the 4th respondent as the chief executive officer of the 5th respondent, and no specific acts of commission or omission, on the part of the 4th respondent, have been pointed out. 12.It is argued that the issues raised by the applicants are contested, and are not suitable for litigation and determination in judicial review proceedings, for they would require the presentation of oral evidence, which ought to be tested in open court. It is argued that a foundation has not been laid, for the mounting of a private prosecution. It is pointed out that there is a pending claim, in Naivasha HC Petition No. E003 of 2025, where compensation is being sought, and there could be abuse of process, in the filing and prosecution of these judicial review proceedings. On access to information, it is averred that that issue was before the Commission on Administrative Justice, and a determination was rendered, on 13th November 2025, directing disclosure, subject to the applicable statutory limitations. It is averred that the information sought was disclosed. The doctrines of exhaustion and constitutional avoidance are pleaded. 13.In addition to filing a replying affidavit, the 4th and 5th respondents have also filed a motion, dated 23rd May 2026, principally seeking the striking out or dismissal of the application, dated 8th April 2026. That application is founded on the affidavit of Mr. Gitari, the deponent of the replying affidavit, sworn on 15th June 2026. The facts deposed to and the grounds upon which the application is founded are a replica of the contents and substance of the affidavit of 15th June 2026. The affidavit of 15th June 2026 is a duplication of the application, dated 23rd May 2026, and its supporting affidavit. There was really no need for the 4th and 5th respondents to have filed the replying affidavit, for they could have simply relied on the averments made in the earlier filing. Alternatively, they ought to have withdrawn the application, before filing the replying affidavit. These multiple filings serve no purpose, other than crowding the court record with duplicitous documents. Be that as it may. 14.The 6th respondent has filed a replying affidavit, sworn by Mr. Peter K. Ndung’u, one of its officers, on 6th June 2026. It is averred that the 6th respondent is mandated, by the Public Procurement and Asset Disposal Act, Cap. 412C, Laws of Kenya, to conduct investigations and act on complaints, received on procurement and asset disposal proceedings. Receipt of a complaint from the applicants, vide a letter dated 7th May 2025, is acknowledged, which letter had sought investigations into the tendering process by the 5th respondent, for the reconstruction of the concrete and soil embankment tunnel bridge at Maai-Mahiu, after the flood disaster. It is averred that receipt of that letter was acknowledged, and that the 6th respondent engaged the 5th respondent over the matter. It is averred that the 5th respondent responded to the enquiries by the 6th respondent, from which the 6th respondent concluded that the 5th respondent had complied substantially with the tendering law and process. It is asserted that the 6th respondent had duly complied, by investigating the matter, and sharing the outcome of its investigations with the applicants. 15.Attached to that response are various documents. There is a copy of the letter the applicants wrote to the 6th respondent, dated 7th May 2025. There is a copy of a letter from the Commission on Administrative Justice, dated 9th June 2025, on a request for information, by the applicants, relating to the tendering process undertaken by the 5th respondent. There is the letter written by the 6th respondent, on 24th June 2025, acknowledging receipt of that by the applicants, dated 7th May 2025. There is a letter, dated 8th June 2025, by the 6th respondent, addressing the Commission on Administrative Justice, informing that it had received a complaint from the applicants, and that it had commenced investigations on it. There is a letter from the 5th respondent, dated 12th September 2025, to the 6th respondent, explaining about the tendering process that it had undertaken. There is a letter, dated 17th September 2025, to the 6th respondent, from the applicants, following up on their letter of 7th May 2025. There is another letter, of 3rd November 2025, from the applicants, to the 6th respondent, giving notice of an intention to sue. The other letter is dated 5th December 2025, from the 6th respondent, advising that the tendering process by the 5th respondent had complied with the law. There is also a letter of 28th August 2025, from the 6th respondent, to the 4th respondent, pointing out some non-compliances with the Public Procurement and Asset Disposal Act, by the 5th respondent, regarding the tendering process. There is a letter, dated 15th July 2025, from the 6th respondent, advising that the court had stopped the reconstruction process, and also giving a general background to the disaster. 16.There is a rejoinder by the applicants, by way of an affidavit by Mr. Kamau, the 84th applicant, sworn on 10th June 2026, in response to the grounds of opposition by the 1st and 2nd respondents, both of which are dated 4th May 2026. He avers that the applicants wrote to the 1st respondent, requesting him to carry out investigations and to prosecute the responsible officers of the 5th respondent. It is also averred that a similar letter was written to the 3rd respondent, requesting that investigations be carried out, into the criminal responsibility and liability of the 4th respondent and other responsible officers of the 5th respondent. Other letters were also allegedly addressed to the 4th, 5th and 6th respondents, requesting for procurement information, relating to the re-construction of the Dark Tunnel. It is averred that another letter was done to the Commission on Administrative Justice, with respect to failure of the 5th respondent, to supply relevant information, and the ombudsman subsequently issued a formal order, on 13th November 2025. It is averred that despite that, none of the respondents acted on the said letters, for there was no response to either of them. 17.It is averred that the 1st respondent has admitted, in its grounds of opposition, that no investigation file was ever forwarded to it, which is the very wrong that the applicants are complaining about, and for which they could not be held responsible for, for it is the failure of the 3rd respondent to complete investigations, and forward the file to the 1st respondent, that has instigated these proceedings. It is averred that all what the applicants seek is for the 1st respondents to receive the investigation file, review the evidence and make a decision. It is asserted that the applicants are not seeking to have the 1st respondent to proffer specific criminal charges, but rather to make a decision on the matter, one way or the other. It is averred that the 1st respondent has not filed any evidence, by way of an affidavit, with respect to the steps taken, towards investigations and prosecution, regarding the Maai-Mahiu Tragedy, and no explanations have been offered for not pressing for investigations to be carried out. 18.On the matter of exhaustion of other avenues for redress before court action, it is averred that after the respondents failed to act on the requests by the applicants, the Commission on Administrative Justice was approached, and it intervened, but to no avail. It is averred that there was no avenue after that, that could be pursued, save the court action. It is submitted that the application is not time-barred, under section 9(2) of the Fair Administrative Action Act, as the wrong complained of was not a single administrative act on a fixed identifiable date, for it is an ongoing and continuous failure by the respondents to perform their constitutional and statutory duties. It is further averred that there is no prescribed internal review procedure, under section 9(4) of the Fair Administrative Action Act, applicable to failure by the 1st and 3rd respondents to investigate mass murder. 19.Several documents are attached to that affidavit. There is a letter addressed to the 1st respondent, dated 11th November 2024, calling for the arrest of the 4th respondent, for breach of the common law duty of care, owed to the residents of the areas affected by that flood disaster in Maai-Mahiu, pointing out the various statutory provisions which are relevant in the circumstances, and reminding him about how his office had acted swiftly, when a similar disaster struck in Solai, Nakuru, in 2018. There is also a copy of the letter that the applicants wrote to the 6th respondent, on 7th May 2025, asking for information, and urging for conduct of investigations. There is a copy of the order, by the Commission on Administrative Justice, dated 13th November 2025, ordering the 4th respondent to facilitate the information that the applicants had sought, by their letter of 7th May 2025, and directing publication of information relating to reconstruction of bridges in the affected areas. There is a copy of another letter, dated 5th December 2025, from the 6th respondent, providing some information on the procurement process, relating to the reconstruction of the bridges, and explaining that the procurement process complied with the law. 20.There is a notice, in a letter, dated 18th November 2025, to sue, addressed to the 1st respondent. There is a copy of a letter, dated 17th September 2025, addressed to the 6th respondent, being a follow up to the letter of 7th May 2025, which was subsequently responded to vide the letter of 5th December 2025. There is another letter, dated 7th May 2025, addressed to the National Environment Management Authority and the Ethics and Anti-Corruption Commission, on public participation that had allegedly been conducted in the affected areas. There is another letter, dated 12th November 2025, being a notice to sue, addressed to the Principal Secretary, the National Treasury and Economic Planning. There is another notice of intention to sue, dated 18th November 2025, addressed to the 3rd respondent. There are also copies of affidavits, by the 84th applicant, sworn on 8th April 2026, and filed herein, and another, sworn by Eng. Shimrone Munga, on 28th April 2025, and filed in Naivasha ELC Petition No. E001 of 2025. The rest of the material are documents that are attached to the affidavit of Mr. Kamau, of 8th April 2026, filed herein. 21.Mr. Kamau has sworn another affidavit, on 10th June 2026, in reply to the application by the 4th and 5th respondents, dated 23rd May 2026, which seeks the dismissal and setting aside of the instant proceedings. The said affidavit responds to the issues raised in that application, on jurisdiction under Article 157(10) of the Constitution and separation of powers; res judicata and the Environment and Land Court judgement in ELCPET/E001/2025; sub judice and Naivasha ELC Constitutional Petition No. E003/2025 and Nakuru HC E025/2024; access to information; the doctrine of exhaustion; collateral attack on determinations of competent courts; factual issues unsuitable for judicial review and lack of coherent constitutional basis; frivolity, vexation and abuse of process; and lack of merit, fatal defects and lack of reasonable cause. 22.He has attached to that affidavit documents to show that he had sought information on the matter from the relevant entities, and the Commission on Administrative Justice had ordered facilitation of that access to information. There is also a copy of the judgement delivered in Naivasha ELC ELCPET/E001/2025. 23.The parties have filed written submissions, to canvass the originating motion. 24.I have not come across written submissions by the applicant. 25.The written submissions, by the 1st respondent, are dated 12th May 2026. They address 3 issues, around the doctrines of ripeness and exhaustion; the extent of merit review in judicial review proceedings; and whether the threshold for grant of the orders set has been met. Section 88 of the Criminal Procedure Code, Cap 75, Laws of Kenya; section 9(2) of the Fair Administrative Action Act; Legal-Aid South Africa Mzoxolo Magidiwana and President of the Supreme Court of Kenya & another [2016]; Pauline Raget Adhiambo Agot vs. Director of Public Prosecutions & 3 others [2010] Petition No. 446 of 2015; John Florence Maritime Services Limited & another vs. Cabinet Secretary Transport and Infrastructure & 3 others [2021] KESC 39 (KLR); Suchan Investments Limited vs. Ministry of National Heritage and Culture & 3 others [2016] eKLR; Saisi & 7 others vs. Director of Public Prosecutions & 2 others [2023] KESC 6 (KLR); Dr. Alfred N. Mutua vs. The Ethics and Anti-Corruption Commission & others Misc. Application No. 31 of 2016; Makokha vs. Netia & another [2023] KEHC 22452 (KLR) and Republic Through Agot vs. Norman & 18 others [2024] KEHC 8797 (KLR) are cited. 26.The 2nd and 3rd respondents submit on only 1 issue, in their written submissions, dated 15th June 2026, relating to whether the application offends the doctrine of exhaustion. Section 9(4) of the Fair Administrative Action Act, and the decisions in Speaker of the National Assembly vs. Karume [1992] KLR 21, Geoffrey Muthinja Kabiru & 2 others vs. Samuel Munga Henry & 1756 others, In the Matter of Mui Coal Basin Local Community and Marimba Investments vs. Director General of the National Transport and Safety Authority & 2 others [2018] eKLR are cited. 27.The submissions, by the 4th and 5th respondents, are dated 15th June 2026. The 4th and 5th respondents identify 5 issues for determination, around whether the 1st and 3rd respondents can be complied by way of judicial review, to investigate and institute criminal proceedings; whether basis has been established, for attributing personal criminal liability on the 4th respondent; whether the prayer for leave to mount a private prosecution is premature; whether the prayer for access to information is properly before the court; and whether the prayer for aggravated damages and the proceedings are generally barred by the doctrines of res judicata, sub judice and abuse of court process. 28.Praxidis Namoni Saisi & 7 others vs. Director of Public Prosecutions & 2 others [2023] KESC 6 (KLR); Dande & 3 others vs. Inspector General, National Police service & 5 others [2023] KESC 40 (KLR); Speaker of the National Assembly vs. Karume [1992] KLR 21; Okiya Omtata Okoiti vs. Communications Commission of Kenya & others; Floriculture International Limited & others vs. Attorney General Civil Appeal No. 114 of 1997 and Independent Electoral & Boundaries Commission & 5 others vs. Maina Kiai, are cited. 29.The 6th respondent has also filed written submissions, dated 16th June 2025. It addresses 3 issues, around the 6th respondent having discharged its statutory mandate under the Public Procurement and Asset Disposal Act, whether violation of the rights of the applicants by the 6th respondent has been demonstrated, and whether the orders sought could be made. It cites only 1 decision, Annarita Karimi Njeru vs. Republic [1979] KLR 154 [1979] eKLR. 30.These proceedings arise from the Maai-Mahiu floods, after the water washed through a blocked tunnel, and rushed downstream, and in the process damaged property and caused deaths. The pleadings are not clear on the number of the dead. I have, however, seen letters from the Senior Chief of Maii-Mahiu Location, relating to deaths of 55 individuals. The police mention that 76 bodies were recovered. These proceedings seek to have accountability for the said deaths, by the 4th and 5th respondents, who had control of the railway facilities, from which the flood waters came. The application targets the 1st, 2nd and 3rd respondents, the State entities and offices that ought to have sought that accountability from the 4th and 5th respondents, by way of criminal prosecution, on the basis that the deadly flooding arose from criminal negligence and breach of duty of care, on the part of the 5th respondent, who owned the property from which the waters flowed, and the 4th respondent, who was the Chief Executive Officer of the 5th respondent at the material time. 31.The complaint is that, despite the loss of so many lives, in that incident, in circumstances that were preventable, if those in charge of the property or asset, from which the waters emerged, had taken appropriate steps, to prevent accumulation of water on the embankment or its breach by the water, the tragedy would have been averted, yet no one has been called upon to account, by way of criminal proceedings being initiated, against those who should be criminally responsible for that loss. It is argued that the 3rd respondent ought to have conducted investigations into the incident, to collect evidence, with a view to assess whether there was any element of criminality, on the part of those who were in control of the assets where the waters came from, that is to say the 4th and 5th respondents. It is also argued that the 1st respondent ought to have prosecuted the 4th and 5th respondents, upon investigations being completed. 32.The applicants make reference to the Solai Dam Disaster of 2018, where water breached an irrigation dam, after heavy rains, swept downstream, and killed people and destroyed property in its wake. Following that 2018 incident, the 1st and 3rd respondents moved with alacrity, investigated the incident, apprehended the owners and managers of the property in question, and prosecuted them, in Naivasha MCCRC No. 977 of 2018 Republic vs. Perry Mansukh Kansagara & 8 others. A copy of a ruling of the Court of Appeal, in Perry Mansukh Kansagara & 3 others vs. Director of Public Prosecutions [2021] KECA 941 (KLR), which arose from that prosecution, is attached. The applicants argue that the State has been selective and discriminative, in the manner that it has handled the Maai-Mahiu incident, when contrasted with what happened after the Solai Dam incident. 33.The 3rd respondent has, through its investigating officer, confirmed that the incident was reported to the police, a rescue operation was mounted, investigations were conducted, an inquest file was opened, and the inquest is ongoing, in Public Inquest File No. 1 of 2024, after which the file shall be forwarded to the 1st respondent, for review and further action. The 3rd respondent indicates that the police reached out to various State entities, seeking information to enrich the investigations, but received no cooperation. The State entities in question, which did not cooperate with the police, in its investigations, are identified as the Naivasha National Environmental Management Authority office, the 5th respondent, the Disaster Management office within the County Government of Nakuru, the Water Resources Authority and the National Water Harvesting and Storage Authority. 34.The 1st respondent has reacted to the matter by raising 3 principal technical arguments. The first is that it is not its mandate to conduct investigations into such incidents, and that it would only get involved after the investigation file has been forwarded to it, by the 3rd respondent. The second is that the matter is res judicata and sub judice. The third argument is that the applicants have not exhausted other avenues for redress, hence the doctrines of ripeness and exhaustion should apply to defeat the application. 35.For the purposes of these proceedings, the principal respondents are really the 1st and 3rd respondents. The 2nd respondent is named as such in her capacity as the universal Advocate for the State. The 4th, 5th and 6th respondents are peripheral parties, who ideally, should have been named as interested parties. The principal complaint is about the failure by the 1st respondent to initiate criminal proceedings against the 4th and 5th respondents. 36.It would appear, from the affidavit filed on behalf of the 3rd respondent, that the police did, indeed, carry out some investigations, which formed the basis for commencement of inquest proceedings. There is frustration expressed, that some State agencies and entities, with information that would have aided the investigations, frustrated the process, by failing to cooperate. Among those State actors is the 5th respondent. 37.However, although the 3rd respondent alleges that inquest proceedings were initiated, in Public Inquest File No. 1 of 2024, no concrete evidence or proof has been placed on record. An inquest file is opened by the court, based on some filing from the 1st or 3rd respondent, a pleading of some sort. No such pleading has been filed. A copy of the proceedings, recorded by the court seized of the inquest, would have sufficed. There is no evidence, therefore, that any such inquest was initiated, and is ongoing. It would appear that the 3rd respondent expects the court to go by the word from the mouth of the investigating officer. 38.Inquests are provided for under sections 385 and 386 of the Criminal Procedure Code. At section 386, they are initiated at the instance of the police, without involvement of the 1st respondent, upon the police receiving information that a person has committed suicide, has been killed by another or by an accident, has died under circumstances raising a reasonable suspicion that some other person has committed an offence, or is missing and believed to be dead. The involvement of the 1st respondent is required only with respect to the case where a person is said to be missing and believed to be dead. Section 386 is a unique provision, given that the inquest proceedings would be conducted in court, and with the phasing out of police prosecutors, the same would require involvement of the 1st respondent, for criminal proceedings, where evidence has to be recorded, would require that the process be guided by a prosecutor. That then being the case, if, indeed, an inquest is underway, in Public Inquest File No. 1 of 2024, there ought to be involvement of the 1st respondent, which would undermine the argument, by the 1st respondent, that he has no role at all in the matter. 39.The 1st respondent has sought to distance himself from criminal investigations, yet the Constitution, under Article 157, expressly vests him with jurisdiction over investigations, and thereby debunking and weakening the argument that he has no role in investigations, and that investigations are the sole preserve of the police, under the 3rd respondent. The 2nd, 3rd, 4th and 5th respondents have aligned to that argument, which, I hold, has no constitutional foundation. 40.Article 157(4) of the Constitution provides:“The Director of Public Prosecutions shall have power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction.” 41.The subject of these proceedings involved the death of 76 human beings, going by the information availed by the 3rd respondent. It was a matter of national importance, of a kind that would attract and capture media attention for days. It would be the sort of matter that should attract the attention of the 1st respondent, to require invocation of the power vested in him under Article 157(4) of the Constitution, to direct the 3rd respondent, in national and public interest, to look into the incident, by way of investigations, to establish if there was any element of criminality involved, with a view to get account from those responsible. It would be the sort of thing where the 1st respondent would not require to be moved by anyone, and where he would not have to wait for the investigations file to be placed before him. To feign ignorance of the instant case, and show scant interest in it, where 76 Kenyans lost their lives, and massive destruction was wrought over several villages, would be a serious dereliction of duty on the part of the 1st respondent. The 1st respondent should have moved, under Article 157(4) and gotten the police to act, instead of waiting for the police to move him, after completing investigations. 42.I have perused the decision in Perry Mansukh Kansagara & 3 others vs. Director of Public Prosecutions [2021] KECA 941 (KLR), on the Solai Dam incident, which has been placed before me, and it has led me to 5 other reported decisions, all of which arose from the said incident, and the prosecution that the 1st and 3rd respondents mounted in Naivasha MCCRC No. 977 of 2018. The other 5 are Director of Public Prosecutions vs. Perry Mansukh Kansagara & 8 others [2018] KEHC 2690 (KLR), Director of Public Prosecutions vs. Perry Mansukh Kansagara & 8 others [2018] KEHC 9293 (KLR), Director of Public Prosecutions vs. Perry Mansukh Kansagara & 8 others [2019] KEHC 8752 (KLR), Director of Public Prosecutions vs. Perry Mansukh Kansagara & 8 others [2020] KEHC 6532 (KLR) and Director of Public Prosecutions vs. Perry Mansukh Kansagara & 8 others [2021] KEHC 4091 (KLR). 43.What emerges, from these decisions, is that that incident led to 48 known deaths. The 3rd respondent conducted investigations, but did not initiate an inquest into the deaths, instead he forwarded the investigations record to the 1st respondent, who then decided that 9 individuals be charged with various offences, leading to Naivasha MCCRC No. 977 of 2018. 44.The circumstances of the 2 incidents, the Solai Dam and the Maai-Mahiu are similar. In the Solai incident, there was heavy rain, which caused flooding, culminating in the water in the dam overflowing, and rushing downstream, causing death and damage. The 1st and 3rd respondents acted quickly, and had individuals, including the owners and managers of the dam, and some State officers, arrested and charged in court over the incident. The police did not open an inquest, it conducted investigations, forwarded its file to the 1st respondent, who then mounted a prosecution. Yet, the Maai-Mahiu incident, although similar, has been treated differently. There was, similarly, heavy rain, water accumulated at a railway embankment, where a tunnel had been blocked, the water forced its way through, and there was a flood, where people died and property was damaged. The police conducted investigations, and did not forward its file to the 1st respondent, but chose to initiate an inquest instead. To date, the 1st respondent has never shown interest in the matter, despite loss of lives, of up to 76 persons, and has not been moved to invoke Article 157(4) of the Constitution. The contrasting reactions to 2 similar incidents can only suggest discrimination and selective treatment. 45.The only difference, between the Solai Dam incident and the Maai-Mahiu tragedy, is that the Solai Dam was privately owned, while the railway is a property of the State, owned and managed through the 5th respondent. It would seem that the 1st and 3rd respondents had no hesitation in moving swiftly in the Solai Dam case, ostensibly as it involved private property, and therefore, largely non-State actors. It was about the State moving in to get accountability from private entities and private persons. In the Maai-Mahiu incident, the accountability would be required of the State and of State actors. The 1st respondent seemingly looked away, when the Maai-Mahiu incident happened, apparently to avoid calling the State, and the State actors involved, to account for the 76 deaths and the damage, either to protect the State or the State actors, at the expense of the ordinary Kenyans who lost their lives, and whose property and livelihoods were destroyed. 46.The second argument, advanced by the 1st respondent, is that the instant application is res judicata and sub judice. These issues are raised with respect to Nakuru HC No. E025/2024, Naivasha ELCPET/E001/2025 and Naivasha ELCPET/E003/2025. Yet, the 1st respondent has not placed on record any evidence, by way of pleadings or determinations, to demonstrate that these causes were in fact filed, and were either determined, for res judicata to arise, or are still pending, for the argument about sub judice to be raised. It is not enough to allege, in an affidavit, that these causes were filed, or are pending, there would be need to provide evidence. Existence of suits or cases in court is evidenced by either pleadings or determinations in those matters. As it is, I have no material upon which I can find and hold that the instant application is res judicata or sub judice. 47.It is the applicants, who have placed some material, on Naivasha ELCPET/E001/2025, on record, by way of a judgement, delivered on 30th April 2026, which demonstrates that that cause indeed existed. That matter was determined, hence it cannot be said to present an issue related to sub judice, but it can support a case for res judicata. Can it be said, based on the judgement of 30th April 2026, that a determination, in the instant application, could raise the spectre of res judicata? I do not think so. I say so because Naivasha ELCPET/E001/2025 was filed at the Environment and Land Court. It turned on issues that had nothing to do with criminal liability and responsibility, in respect of which the Environment and Land Court has no jurisdiction, but on environment and land. 48.Although Naivasha ELCPET/E001/2025 did not turn on criminal liability and responsibility, some of the issues addressed in it are of relevance to what is now before me, and could be a pointer to whether a prosecution should have been mounted, over the issues raised in the instant application. The issues raised revolved around the tort of negligence. Torts are civil wrongs, and some of them often overlap with criminal wrongs. 49.The court summarised the claim, by the petitioners in that case, who are also the applicants herein, as follows:“ 82.The Petitioners’ claim comprises a Constitutional Petition and a Tortious Claim arising from the catastrophic flash floods in Mai Mahiu in April 2024. They argue that the tragedy was not merely a natural disaster but a state-created risk resulting from the Respondents’ failure to maintain critical infrastructure. 83.They argue that the disaster stemmed from a blocked railway tunnel, known locally as the “Dark Tower,” near the Old Kijabe Town when the 1st and 2nd Respondents (Kenya Railways) failed to monitor the tunnel around the clock or clear drainage systems, despite receiving early warnings and experiencing a similar incident in 2020. They noted that although there was heavy rain, it was the man-made blockage and the subsequent failure of the 183-meter-long concrete tunnel that turned the rain into a deadly force. 84.The Petitioners base their argument on the “Foreseeability Test,” asserting that the Respondents are legally accountable because they were aware of the drainage problems and the weather forecast. They differentiate between an Act of God, an unavoidable event and Human Negligence, which involves failing to maintain a man-made structure, and they assign responsibility to the latter. 85.That the Respondents’ callous disregard for safety led to violations of several fundamental rights under the Constitution, including the Right to Life under Article 26, in which they lost loved ones due to a preventable infrastructure failure; the Right to Property under Article 40, in which there was arbitrary destruction of homes, livestock, and business; Socio-Economic Rights under Article 43, when the Respondents left the victims destitute by failing to fulfil promises of resettlement; and lastly, their Environmental Rights under Article 42 and 70, when the Respondents decided to rebuild the same “outdated” soil embankments without proper safeguards or modern technology.” 50.The court, in Naivasha ELCPET/E001/2025, finally concluded as follows:“ 128.A summary of the court’s finding is that the Respondents’ failure in their constitutional and statutory obligations is established by the nexus between the physical blockage and the subsequent regulatory inaction. 129.The State’s obligation is to protect life under Article 26 of the Constitution includes a duty to mitigate foreseeable hazards. The Water Resources Authority (WRA) and the National Disaster Management Authority (NDMA) failed to act on the Kenya Meteorological Department’s 2023/2024 El Nino warnings. Secondly, by allowing debris (trees, stones, and mud) to accumulate in the railway tunnel, the 1st Respondent (Kenya Railways) created a “man-made dam.” The failure to patrol and clear this tunnel constitutes a breach of the statutory duty of maintenance, which directly led to loss of lives. 130.The Respondents failed to prevent an arbitrary deprivation of property under Article 40 of the Constitution, where the railway embankment being an artificial structure, changed natural flow of water and when it burst, it was not an “Act of God” but a structural failure of State-managed property, which led to the destruction of private property.” 51.In the end, one of the final orders made, in Naivasha ELCPET/E001/2025, was:“A declaration that the Respondents failed in their constitutional and statutory obligations to protect life, property and the environment under Articles 26, 42 and 70 of the Constitution.” 52.The findings, holdings and orders, in Naivasha ELCPET/E001/2025, although the case was about the environment, have a bearing on the issued raised here. The court found and held that the 5th respondent and the State in general had failed its people, with respect to not maintaining the embankment, leading to the loss in question. The 5th respondent and the State were found and held to be liable for that loss, on account of negligence and breach of duty of care. That, no doubt, called for the State, inclusive of the 1st and 3rd respondents, to take steps to call those responsible to accountability, inclusive of addressing any emerging criminal liability and responsibility. 53.The attitude, which emerges, from the filings by the 1st respondent, is unwillingness to discharge its constitutional and statutory duty, to prosecute those who were criminally responsible for the failures that the court identified in Naivasha ELCPET/E001/2025. 54.The other issue is the doctrines of exhaustion and ripeness. These doctrines apply largely in constitutional and civil litigation in the public law arena. They hardly ever apply in criminal matters. Once a complaint is made, regarding criminal activity, the 1st and 3rd respondents are expected to move quickly to investigate and prosecute, to ensure that lawbreakers are brought to justice. There are limited alternative dispute resolution mechanisms where crime is concerned, which citizens with complaints must first resort to, before reporting to the police, for investigations to be done, and before the 1st respondent mounts a prosecution. 55.An issue has been raised about reporting to the Independent Police Oversight Authority, with the argument that this was a case where a report ought to have been made to that entity. I disagree. The Independent Police Oversight Authority principally looks into police misconduct, where the police seek to shield themselves from liability, in cases in which they have some personal or institutional interest, such as where a police officer is required to investigate conduct of another police officer. In this case, there was no such interest. 56.Therefore, with respect to the 1st respondent, there are no valid or justifiable excuses or reasons for the 1st respondent failing to intervene in this case, where more than 70 people lost lives, in circumstances where the court, in Naivasha ELCPET/E001/2025, found and held that the State “failed in” its “constitutional and statutory obligations to protect life, property and the environment under Articles 26, 42 and 70 of the Constitution.” 57.Where the 1st respondent fails to prosecute, after a complaint is filed with the police, and after the matter is brought to its attention, the courts would be at liberty to allow the complainant to initiate a private prosecution. I have seen the letter, dated 18th November 2025, addressed to the 1st respondent, by the applicants, and which the 1st respondent received on 19th November 2025, reminding the 1st respondent of its duty to perform its constitutional and statutory obligations, with respect to prosecution of the persons and entities criminally liable and responsible for the Maai-Mahiu tragedy of 29th April 2024, where over 70 lives were lost, and overseeing investigations into that incident. That letter notifies the 1st respondent of the intention to move to court, in the event no steps are taken, by him, within 21 days. I deliver this judgement today, 3rd July 2026, and the 1st respondent is yet to direct investigations into the incident, with a view to prosecute those criminally liable and responsible for its occurrence. 58.The principal orders are sought against the 1st and 3rd respondents, but there is also a prayer directed at the 2nd respondent, as custodian of public interest, to furnish the applicants with the report of the board, of the 5th respondent, on the enquiry, it conducted, into the incident that led to the floods in Maai-Mahiu in 2020 and 2024, and the measures taken or to be taken, to prevent future occurrences, and in respect of the compensation to be paid to the victims. 59.The 2nd respondent is, constitutionally, the universal legal adviser to the State, and the ultimate guardian of public interest. I have noted, from the material filed herein, that the 4th and 5th respondents were furnished with notices, by the applicants and the Commission on Administrative Justice, to furnish the applicants with information, relating to the issues raised in prayer 4 of the originating motion, with respect to the report the subject-matter of that prayer. The 4th and 5th respondents have resisted or ignored those requests. The 5th respondent is a public entity, funded and run on public funds. It should be accountable to the public, based on the constitutional norm and value of transparency. The public is entitled to information on what went wrong on 29th April 2024, and on the measures being taken or planned by the 5th respondent to prevent future occurrences, as well as its plans to compensate those who suffered loss and damage. The 5th respondent is not a private entity, and the report, which has the information on the said issues, is not private property. 60.There is a prayer about the tendering process for the reconstruction and repair works on the railway tracks that were swept away in the floods. I note, from the material filed herein, that that issue was comprehensively addressed by the Commission on Administrative Justice and the 6th respondent. I am not persuaded that I should address it in this judgement. Litigation around public procurement is subject to stringent timelines, and no legal action can be feasible, in July 2026, with respect to public procurement processes undertaken in 2024/2025. 61.There is the prayer for compensation, payable to 5 petitioner associations. I do not quite understand what this prayer is about, because these proceedings were not initiated by way of a petition, and, therefore, there are no petitioners. It was initiated by way of an application, by applicants. None of the 84 applicants is an association. 62.In the end, I am persuaded that the application herein, dated 8th April 2026, for the orders sought, is adequately substantiated or established, and I find and hold that the threshold, for grant of the prayers sought, has been met. I hereby allow the same, in terms of prayers 1, 2, 3 and 4. In the event of default, by the 1st and 3rd respondents, to comply with the orders under prayer 2, the applicants shall move the Magistrate’s Court, appropriately, to initiate the private prosecution, the subject of prayer 3. The Originating Motion herein, dated 8th April 2026, is disposed of in those terms. Each party shall bear its own costs. Orders accordingly. DELIVERED VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 3RD DAY OF JULY 2026.W MUSYOKAJUDGEMr. Abdirahman, Court Assistant.AdvocatesMr. Ndegwa, instructed by SNW & Company, Advocates for the applicant.Mr. Mwandawiro, instructed by the Director of Public Prosecutions, for the 1st respondent.Ms. Gathenya, instructed by the Attorney General, for the 2nd and 3rd respondents.Mr. Muturi, instructed by GK Muturi & Company, Advocates for the 4th and 5th respondents.Ms. Korir, Advocate for the 6th respondent.