https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6960

Okoiti & 2 others v Kenya Railways Corporation & 10 others (Constitutional Petition E843 of 2025) [2026] KEHC 6960 (KLR) (Constitutional and Human Rights) (15 May 2026) (Ruling) Neutral citation: [2026] KEHC 6960 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Constitutional Petition E843 of 2025 G Mutai, J May 15, 2026 Between Okiya Omtatah Okoiti 1st Petitioner Bernard Muchiri Muchere 2nd Petitioner Naomi Nyakerario Misati 3rd Petitioner and Kenya Railways Corporation 1st Respondent The Board of Directors, Kenya Railways Corporation 2nd Respondent The National Executive of the Republic of Kenya 3rd Respondent Principal Secretary, National Treasury 4th Respondent Principal Secretary, State Department For Transport 5th Respondent The Hon. Attorney General 6th Respondent The National Assembly 7th Respondent The Auditor General 8th Respondent China Roads And Bridges Corporation (CRBC) 9th Respondent The Apec Consortium Co. Ltd 10th Respondent Africa Star Railway Operation Company Limited (AFRISTAR) 11th Respondent Ruling Introduction 1.The Petitioners filed a Notice of Motion Application dated 24th April 2026, vide which they seek the following orders:-1.That the application be certified as urgent and be heard ex parte, and service thereof be dispensed with in the first instance;2.That pending the inter-partes hearing of this application and/or the petition, this Honourable Court be pleased to issue a conservatory order suspending the operation and implementation of the Miscellaneous Fees and Levies (Amendment) Act, 2026 (No. 6 of 2026) in its entirety;3.That pending the inter-partes hearing of this application and/or the petition, this Honourable Court be pleased to issue a conservatory order restraining the 1st to 6th Respondents, the proposed 12th Respondent, and any person acting under their authority from:a.collecting, disbursing, or utilizing any proceeds of the Railway Development Levy.b.leveraging, borrowing, or securing any funds against the Railway Development Levy Fund pursuant to section 8(4H) of the Act;c.taking any step to implement the Riruta-Ngong commuter railway project or any other project funded or to be funded from the Railway Development Levy Fund.4.That the Railway Development Levy Fund Board, the Proposed 12th Respondent, be joined to these proceedings as the 12th Respondent.5.That this Honourable Court be pleased to admit the Amended Petition dated 24th April 2026 as properly filed and served, and deem the same as the operative petition;6.That the Honourable Court be pleased to issue such further directions and orders as may be necessary to give effect to the foregoing orders and to serve the cause of justice; and7.That costs be in the cause. 2.The grounds upon which the application is brought are that the affidavit of Mr Samuel J. Njoroge, CBS, dated 18th April 2026, introduced a copy of the Miscellaneous Fees and Levies (Amendment) Act, 2026. The said Act was assented to on 13th March 2026 and came into force on 27th March 2026. They contended that the Railway Development Levy Fund Board was poised to leverage up to 90% of the Fund, estimated at Kes. 45 billion annually, to secure additional loans, creating contingent liabilities for the national government without any parliamentary appropriation or borrowing approval. They stated that the Act, as amended, did not cure, but rather multiplied constitutional ailments and reinforced the infractions. They further stated that the Miscellaneous Fees and Levies (Amendment) Act, 2026, violated Articles 206 (1) (a), 221 – 223, 211 and 220 (1), 209 (1) (c), 10, 118 and the doctrine of separation of powers. 3.The petitioners stated that joinder of the Railway Development Fund Board as a necessary party was necessary, as it was the entity through which the unconstitutional powers were to be exercised. They stated that joinder would enable the court to grant effective relief. The petitioners stated that the court has unfettered power and jurisdiction to make the orders sought, that the issuance of those orders would serve the ends of justice and equity, and the overarching purposes of constitutional integrity and the rule of law, and that the balance of convenience tilts in favour of the grant of the orders sought. Notice of Motion dated 31st March 2026 4.I have already set out the orders sought by the petitioners/applicants above. 5.The application is supported by the affidavit of Mr Okiya Omtatah Okoiti, sworn 24th April 2026, vide which he deposed to the averments. In my view, it would not be necessary to rehash his depositions, as they merely restate the grounds supporting the application. Responses by the Respondents 6.The 9th respondent objected to the application by a notice of preliminary objection dated 27th April 2026, in which it contended that the court lacked jurisdiction to hear and adjudicate upon the constitutionality and/or the circumstances under which the Miscellaneous Fees and Levies (Amendment) Act, 2026 was enacted within these proceedings. It also deprecated the procedure used by the petitioners, stating that the amended petition was filed without leave, which must first be obtained as required by the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, popularly called the Mutunga Rules, and that this constituted a gross abuse of the court process. It averred that the application was filed with the intention of obstructing the administration of justice and denying the respondents a fair hearing. 7.In the affidavit of Liu Jan, sworn on 4th May, it was stated that the Miscellaneous Fees and Levies (Amendment) Act, 2026, was a distinct piece of legislation whose constitutionality could not be questioned in these proceedings. The deponent reiterated that the petition was amended without leave, which rendered it defective. He stated that the application was incompetent because it sought to interfere with the National Assembly's legislative mandate. 8.The 9th respondent filed a Notice of Motion dated 4th May 2026, by which they sought to have the documents marked as exhibits BMM, BMM-5, and Exhibit–001, attached to the petitioners' supporting affidavit, expunged from the court record in their entirety, on the ground that they were allegedly obtained in defiance of Sections 79 and 80 of the Evidence Act. Reliance was placed on the decision of the Supreme Court in Kenya Railways Corporation v Okiya Omtatah Okoiti and 5 Others [2023] KESC 35 (KLR), in which it was held that unlawfully obtained documents were inadmissible in judicial proceedings. 9.The 11th respondent opposed the application by way of a replying affidavit sworn by Mo Kun. The affidavit in the main deprecated the filing of the amended petition without leave of court. 10.The 1st and 2nd respondents filed a replying affidavit sworn on 6th May 2026, sworn by Mr Gitari, vide which they too challenged the amended petition. The deponent argued that at the time the ruling was delivered, the petitioners were aware of the amendment, as evidenced by paragraph 96 of the ruling. They further condemned the petitioners' decision to wait for over 3 weeks before filing the application for amendment, as the Act was assented to on 13th March 2026 and came into operation on 27th March 2026. The deponent saw in the application a calculated move to delay the hearing and determination of the petition. 11.Mr Gitari contended that paragraph 3 of the notice of motion dated 14th April 2026 had far-reaching consequences, was filed belatedly after the Act came into operation. He stated that it would not be in the interest of justice to reopen pleadings. Further, he averred that the project was of great public importance with consequences for the country’s economic growth and stability. Lastly, he stated that it hadn’t been shown how the Miscellaneous Fees and Levies (Amendment) Act, 2026, was unconstitutional. 12.The 7th respondent filed the affidavit sworn by Jeremiah Ndombi, the Deputy Clerk of the National Assembly, in which he stated that the Miscellaneous Fees and Levies (Amendment) Act, 2026, was constitutional. He stated that this court could not declare the Miscellaneous Fees and Levies (Amendment) Act, 2026, unconstitutional, as it wasn’t challenged in the existing petition. Written and Oral Submissions of the Parties 13.The notice of motion dated 24th April 2026 was canvassed by way of written submissions. I will set out the submissions of the parties below: Written Oral Submissions of the Petitioners/Applicants 14.The 1st and 2nd petitioners contended that they were served with an affidavit from the 7th respondent, which attached the Miscellaneous Fees and Levies (Amendment) Act, 2026. The said Act amended Section 8 of the Miscellaneous Fees and Levies Act. It was contended that the amendment worsened the grievance. Further, they sought to amend the petition soon after the amended Act became available. It was contended that the amendment to the Act was unconstitutional because the amended petition didn’t introduce new issues. 15.The 1st petitioner submitted that it was necessary to include the Railway Development Fund Board as a party. He further submitted that the National Assembly rushed the amendment process, as there was no study to justify the new legislation and no consideration of less restrictive alternatives. It was argued that the test for amending pleadings had been met and that the conservatory orders sought should issue. 16.The 3rd petitioner filed written submissions dated 7th May 2026, together with a list and bundles of documents dated the same day. It was urged that the court's power to amend pleadings is conferred by Rule 18 of the Mutunga Rules. Counsel for the 3rd petitioner submitted that the proposed amendment was necessitated by the amended Act, which came into force on 27th March 2026. 17.Counsel submitted that the purpose of the amendment of the petition was to enable the court to determine the real issues in dispute, so that substantive justice could be rendered, and to avoid the multiplicity of suits. Counsel urged that amendments made before the hearing are allowed freely so long as they don’t cause injustice to the opposite party, and that the proposed amendment was intended to take into account the amendment to the law, so that the Court could determine the real issues in dispute between the parties to this petition. 18.It was contended that the amended petition was filed without undue delay and would not prejudice the respondents. Counsel relied on the court's decision in Institute of Social Accountability v Parliament of Kenya & Others [2021] eKLR. Counsel submitted that, under the Interpretation and General Provisions Act, a statutory provision included any amendment made to it. Written and Oral Submissions of the Respondents 19.The 1st and 2nd respondents relied on written submissions dated 6th May 2026 as well as a replying affidavit of even date. The said parties deprecated the amendment, stating that they were unclear about its scope. They contended that the prayers sought were premature and unfounded and that they sought to suspend a statutory framework passed by parliament. Counsel for the said parties urged that an Act of Parliament must be presumed constitutional and that the issuance of conservatory orders would violate the doctrine of separation of powers. They contended that parliament had the power to amend the law. 20.It was argued that prayer for conservatory orders was not anchored on the Constitution as it was and could not therefore issue. They further submitted that the amended petition was imprecise and breached the test in the case of Anarita Karimi Njeru v Republic [1979] KEHC 30 (KLR). 21.Counsel argued that the proposed amendment introduced a new cause of action and ought therefore to be disallowed as it went beyond the scope of the initial petition. 22.The 7th Respondent conceded that parties could amend their pleadings at any stage. However, it contended that, given the circumstances of this matter, it would not be just to allow the amendment, as the delay in filing the motion had not been explained. Counsel argued that the issue had been within the knowledge of the parties since February 2026, even before the Act was passed. 23.Counsel further submitted that the amended Act deleted Section 8 (3) of the Act, and as such, the Railway Development Levy Fund could be used to fund the construction of the Meter Gauge Railway. 24.They submitted that if the amendment was allowed, then the conservatory orders should be discharged as they were based on a different set of facts. Counsel contended that the Institute for Social Accountability case was inapplicable. 25.The 9th Respondent submitted that the application was an omnibus one and that it sought diametrically opposed orders under different legal regimes. Counsel argued that it would be unconstitutional to allow an omnibus application and urged that the same be struck out. 26.They too contended that the amended petition introduced a new cause of action. They stated that the petitioners ought to have filed a new petition. They saw in the amendment an abuse of the court process. Counsel therefore prayed that the application be disallowed. 27.The Respondents further argued that what the amended petition sought to do was to delay the conclusion of the petition. Response for the Petitioners 28.In their responses, the petitioners urged that the separation of powers was violated. Further, the Amended petition was clear and accorded with the precedent of the Anarita Karimi Njeru case. The 1st petitioner submitted that in Constitutional matters, the court could even be moved by the way of a letter. They denied that there had been a delay in filing the amended petition. 29.They denied that there was before the court an omnibus application. In their view, broad applications are allowed under the Constitution. 30.The petitioners submitted that where an Act had been amended, after a petition was filed to challenge it, the petition could be amended so that the real issues in dispute could be determined by the Court. Analysis and Determination 31.I have considered the Notice of Motion dated 24th April 2026, the responses thereto, as well as the written and oral submissions of the parties. In my view, the issues I am called upon to determine are:i.Whether the Amended Petition dated 24th April 2026 should be deemed as having been validly filed; andii.Whether the conservatory orders sought should issue. 32.I have perused the Court Tracking System Portal. I note that on 24th April 2026, the petitioners filed what they say is the Amended Petition. The said document was filed without first obtaining the leave of the court. The Respondents aver that the said action of filing an Amended Petition and thereafter seeking the court’s validation rendered the Amended Petition fatally defective and called for it to be struck out. 33.Rule 18 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice & Procedure Rules, 2013 (popularly called the Mutunga Rules) states that:“A party that wishes to amend its pleadings at any stage of the proceedings may do so with leave of the court.” 34.My understanding of the above Rule is that a party who desires to amend its petition must first obtain leave before doing so. It would appear to me that in the context of this Rule, the word “may” has the meaning of “shall” and the party desiring to amend its pleadings must first obtain leave. In my view, filing amended pleadings without first obtaining leave is presumptuous. It invites this court to validate the petitioners' actions and rubber-stamp what they have done. In my view, this is impermissible. 35.Whereas it is true that rules of procedure are the handmaidens of justice, and not their mistresses, rules exist to ensure that parties involved in litigation know the nature of the cases they face so that they can adequately respond to them, and also so that they can present their evidence for the court to render just determinations. In that regard, they are lynchpins of the right to fair trial under Article 50 of the Constitution of Kenya, 2010. 36.The importance of complying with the Rules, including timelines and the requirement to obtain leave where leave is required, has been emphasized in a long line of decisions of the courts of record. The Supreme Court, while dealing with a Notice of Appeal filed out of time in the case of Salat v IEBC & 7 Others [2014] KESC 12 (KLR), stated as follows:“53.By filing an appeal out of time before seeking an extension of time, and subsequently seeking the court to extend time and recognize such an appeal, is tantamount to moving the court to remedy an illegality. This, the court cannot do.54.To file an appeal out of time and seek the court to extend time is presumptive and inappropriate. No appeal can be filed out of time without leave of the court. Such a filling renders the ‘document’ so filed a nullity and of no legal consequence…” 37.My view is that the Supreme Court’s decision on the merits of an appeal filed out of time and without leave applies mutatis mutandis to an amendment filed in the Constitutional and Human Rights Court without leave of the court. The need for leave in these circumstances cannot be gainsaid. Mwamuye, J, set strict timelines within which the petition ought to be determined. At this point, any amendments, if allowed, would delay the hearing of the petition on the merits. 38.That should be dispositive of this matter. I will, however, look at the merit of the application. 39.The court recognises that parties have a right to amend their pleadings at any stage of the proceedings so that the court may deal with the real issues in controversy. Courts allow amendments liberally to prevent injustice, provided that the amendments do not introduce new causes of action or are intended to defeat accrued defences, such as the defence of limitation. 40.In the Mulla Code of Civil Procedure, 18th Edition, Volume 2, Pages 1751 -1752, it is stated that:“On the basis of different judgments, it is settled that the following principles should be kept in mind when dealing with the applications of amendment of pleadings….i.All amendments should be allowed which are necessary for the determination of the real controversies in the suit.ii.The proposed amendments should not alter and be a substitute for the cause of action on the basis of which the original suit was raised…” 41.In the case of Joseph Ochieng & 2 others Trading as Aquiline Agencies v First National Bank of Chicago [1995] KECA 31 (KLR), the Court of Appeal distilled the applicable principles where an amendment is sought as being thata.The power of the Court to allow amendment is intended to determine the substantive merits of the case;b.The amendment should be timeously applied for;c.The power to amend can be exercised by the court at any stage of the proceedings;d.That, as a general rule, however, in the amendment, if sought to be made, should be allowed, if made in good faith, provided costs can compensate the direct side.e.the plaintiff will not be allowed to reframe his case or his claim if, by an amendment of the plaint, the defendant would be deprived of his right to rely on the limitation of actions, subject, however, to the power of the court to still allow an amendment notwithstanding the expiry of the current period of limitation. 42.In the case of James Ochieng’ Oduol t/a Ochieng Oduol & Co. Advocates v Richard Kuloba [2008] KECA 53 (KLR), the Court of Appeal held that:“The facts which were introduced in the amended plaint were not new. The respondent was aware of them all along but failed to plead them in the plaint. The amendment appears to have been allowed in effect to aid a negligent pleader. The provisions of Order VIA rule 5(1) of the Civil Procedure Rules are not intended to aid a negligent pleader, more so where its effect will be to defeat an accrued defence.” 43.Turning to the matter before me, it is my view that the amendment introduces a new cause of action which changes the substance of that petition before the court. The issues raised in the Amended Petition, if they are allowed, cannot be canvassed in the present petition. The original petition did not challenge the manner in which the Miscellaneous Fees and Levies Act was passed. The Amended Petition widens the scope of the Petition and, in essence, creates what may appear to be a different Petition. Allowing the Amended Petition would require this court to extend the timeline within which the petition is to be heard and determined beyond the 90-day period that Mwamuye, J., in his wisdom, directed. 44.I have considered the decision in the case of Institute of Social Accountability v Parliament of Kenya & Others [2021] eKLR. In my view, the holding in that case is distinguishable from this one. 45.In the circumstances, I decline to allow the prayer for admission of the amended petition. Accordingly, the prayers for conservatory orders cannot be issued. The said prayers are premised on an amended petition, which has been declined. 46.The orders that therefore commend themselves to me, thus, are that the Notice of Motion dated 24th April, 2026, is dismissed. 47.This being a public interest matter, each party shall bear its own costs. 48.It is so ordered. DATED AND DELIVERED IN NAIROBI, THIS 15TH DAY OF MAY 2026.GREGORY MUTAIJUDGEIn the presence of:Ms Mugi, holding brief for Mr Kamau Muturi and Mr Chacha Odera, SC, for the 1st & 2nd Respondents/Applicants;Mr Bernard Muchere (pro se litigant - 2nd Petitioner);Ms Ekesa, for the 1st Petitioner;Ms Kibe, holding brief for Ms Mbiro, for the 11th Respondent;Ms Obure, holding brief for Mr Kanjama, SC, for the 3rd Petitioner/Respondent, and 1st Interested Party;Mr Agwara, for the 9th Respondent;Mr Mbarak, for the 7th Respondent;Mr Mbarak, holding brief for Mr Thande Kuria, for the 3rd, 4th, 5th & 6th Respondents; andMs Lwambia – Court Assistant.Constitutional Petition No. E843 of 2025 – Ruling Page 1 of 10 Mutai, J