https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11433

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **HCCHRPET NO E843 OF 2025** **OKIYA OMTATAH OKOITI………………………………….……….1ST PETITIONER** **BERNARD MUCHIRI MUCHERE……………………………..……....2ND PETITIONER** **NAOMI NYAKERARIO MISATI…………..………………..………...3RD PETITIONER** **VERSUS** **KENYA RAILWAYS CORPORATION (KRC……………………………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 HONOURABLE ATTORNEY GENERAL.………………..............6TH RESPONDENT** **THE NATIONAL ASSEMBLY.………………….............................7TH RESPONDENT** **THE AUDITOR GENERAL.……………………………………….....8TH RESPONDENT** **CHINA ROAD AND BRIDGE CORPORATION (CRBC).…...................9TH RESPONDENT** **THE APEC CONSORTIUM CO. LTD.…………………...................10TH RESPONDENT** **AFRICA STAR RAILWAY OPERATION** **COMPANY LTD (AFRISTAR)……………………………………….11TH RESPONDENT** **AND** **KAREN LANGATA DISTRICT ASSOCIATION – (KLDA)………1ST INTERESTED PARTY** **KATIBA INSTITUTE…………………………………………2ND INTERESTED PARTY** **LAW SOCIETY OF KENYA (LSK)……………………………3RD INTERESTED PARTY** **JUDGMENT** # Background and Factual Context # Origin of the Petition 1. Constitutional Petition No. E843 of 2025 was filed on 19th December 2025. It was brought in the public interest pursuant to Articles 2(1)(2) and (4), 3(1), 4(2), 10(1),19(1&2), 20, 21, 22, 23, 24, 35, 40, 42, 23,24,35,40,42,47, 48, 50(1), 73(1),2(c), 129, 153, 165 (3), 159, 160(1), 162(2)(b), 165(3), 201, 201,204,206, 206 (2) (3), 209(1), 220, 221, 221,222, 223, 226, 223,226,227(1)(2), 232, 249, 249,258(1), and 259(1) of the Constitution of Kenya, 2010. The Petition was filed by Mr Okiya Omtatah Okoiti, together with Bernard Muchiri Muchere and Naomi Nyakerario Misati. The Karen Langata District Association (KLDA), represented by its chairman, Samora Sikalieh, subsequently joined as the 1st Interested Party in the public interest and on behalf of approximately 32,000 residents of the Karen area. Katiba Institute and the Law Society of Kenya were also joined as the 2nd and 3rd Interested Parties, respectively. ## The Subject Matter — The Riruta – Ngong Commuter Metre Gauge Railway Project 1. The Petition concerns the Riruta–Ngong Commuter Metre Gauge Railway Project (hereinafter "the Project"), a 12.5-kilometre metre-gauge commuter railway line linking Riruta, Karen, Bulbul, and Ngong across Nairobi and Kajiado Counties. The Project was publicly commissioned by President William Ruto on 15th December 2023. 2. The contract was awarded to the 9th Respondent, China Road and Bridge Corporation (CRBC), as the contractor, and to the 10th Respondent, APEC Consortium Co. Ltd, as the supervisor, both reportedly through direct procurement. Construction commenced immediately upon commissioning in December 2023. 3. The Project forms part of a broader Kes 2.824 trillion railway project pipeline, approved by the National Executive for implementation by the 1st Respondent, Kenya Railways Corporation (KRC). According to KRC's audited financial statements, the Project's cost is estimated at Kes 11,505,806,368, funded by the Railway Development Levy Fund (RDLF). ## Reliefs Sought 1. The Petitioners seek the following reliefs from the Court: 2. ***A declaration that the RDLF and its enabling legislation are unconstitutional, null, and void ab initio;*** 3. ***A declaration that the approval, commissioning, financing, and/or implementation of the Riruta–Ngong Project are unconstitutional, unlawful, and null and void ab initio;*** 4. ***Prohibitory orders restraining further construction or disbursements of funds for the Project;*** 5. ***An order restraining the National Treasury from releasing any funds for the broader Kes 2.824 trillion project pipeline without parliamentary appropriation;*** 6. ***An order directing the Auditor General to conduct a special forensic audit of the RDLF and KRC's finances, with findings submitted to the DPP and Parliament;*** 7. ***An order directing the National Treasury to wind up the RDLF and remit any remaining balances to the Consolidated Fund;*** 8. ***Costs of the proceedings.*** **Issues Raised in the Petition** ## Unconstitutionality of the RDLF and unlawful diversion of its funds 1. The Petitioners challenge the constitutional validity of Section 8 of the Miscellaneous Fees and Levies Act No. 29 of 2016 (Revised 2023) and of the Railway Development Levy Fund (RDLF) established thereunder. The RDLF was created by Section 6 of the Finance Act No. 38 of 2013, exclusively "for the construction of a standard gauge railway network in order to facilitate the transportation of goods." This was later extended by the Tax Laws (Amendment) Act No. 2 of 2020 to include the "operation" of the SGR. 2. The Petitioners argue that the RDLF, by collecting a statutory levy from importers and keeping the fund outside the Consolidated Fund, violates Article 206(1)(a) of the Constitution, which requires all public money to be paid into the Consolidated Fund unless there is a reasonable justification for a separate account. 3. The Petitioners further allege that approximately Kes 211 billion has been diverted from the RDLF for purposes outside its statutory mandate, including Kes 33.5 billion loaned to the Petroleum Development Levy Fund, Kes 37.4 billion budgeted for the already-completed Mombasa–Nairobi SGR, and now Kes 11,505,806,368 applied to a metre-gauge commuter railway. These purposes were never contemplated by the RDLF's enabling legislation. The Petitioners aver that the RDLF is unconstitutional, null, and void ab initio to the extent it was established contrary to Articles 206(1) and 209(1)(c) of the Constitution. ## Whether the 2026 Amendment Act cures past violations 1. The Petitioners acknowledged that the Miscellaneous Fees and Levies (Amendment) Act, 2026, assented to on 13th March 2026 and commenced on 27th March 2026, expanded the scope of the RDLF to encompass broader railway infrastructure projects. However, they argued: ***(a) The Amendment Act has no retrospective effect and therefore cannot validate expenditure incurred before 27th March 2026;*** ***(b) All impugned actions, including the contract award (September 2022), commissioning (December 2023), and construction commencement (December 2023), as well as all expenditures in 2024 and 2025 — predate the Amendment Act;*** ***(c) The Amendment Act is itself unconstitutional for violating Articles 206(1)(a), 211, 221–223, and 10 of the Constitution; and*** ***(d) Even if valid, the Act creates an entirely new governance architecture and the Respondents would need to undertake a fresh procurement process under it.*** ## Absence of parliamentary appropriation and violation of public finance rules 1. The Petitioners alleged that the Project was approved, funded, and implemented in flagrant breach of the constitutional public finance framework. 2. The Petitioners contended that the 7th Respondent (National Assembly) admitted in its pleadings that there was no budgetary allocation for the Riruta–Ngong Project in Financial Year 2023/2024, despite construction being actively underway. It was averred that continued construction violated Articles 206, 220, 221, 222, and 223 of the Constitution, which vest exclusive authority over public expenditure in Parliament and prohibit expenditure outside approved estimates. 3. The Petitioners further argue that the National Executive's approval of a Kes 2.824 trillion project pipeline for KRC, which has accumulated losses of Kes 197 billion and negative equity of Kes 72 billion, without a financing plan violates Article 201(d) on prudent and responsible use of public resources and intergenerational equity. ## Unconstitutional single-sourcing of contractors (Articles 227 and PPADA) 1. The Petitioners alleged that CRBC (9th Respondent) and APEC Consortium (10th Respondent) were procured through direct single-source procurement without open competitive tendering, in violation of Article 227 of the Constitution and Section 137(1) and (3) of the Public Procurement and Asset Disposal Act (PPADA). Section 137(1) and (3) requires procuring entities to publicize contracts. According to the Petitioners, this was never done in respect of the APEC Consortium contract. 2. The Respondents relied on Section 103(2)(d) of PPADA, which permits single-sourcing for standardization and compatibility with existing assets. The Petitioners challenged this justification on the basis that the Riruta–Ngong Project is a metre-gauge commuter line while the SGR is a standard-gauge railway with entirely different technologies, track widths, signalling systems, and operational parameters. 3. They further averred that there is no standardization between them. Further, the Section 103(2)(d) conditions (limited scale relative to the original procurement, reasonable price, and no suitable alternative) were not satisfied, and no mandatory documentation for direct procurement under Section 104 of PPADA was produced. ## Failure to conduct mandatory pre-feasibility and feasibility studies for the project 1. The Petitioners argued that the Project, classified as a Mega Project with a cost exceeding Kes 5 billion, was commissioned and constructed without the mandatory pre-feasibility and feasibility studies required under the Public Finance Management (Public Investment Management) Regulations, 2022 (PIM Regulations). Regulation 20(4) requires that such a study assess, at a minimum: market and demand; technical and engineering feasibility; environmental impacts; human resource capacity; financial and economic viability; social impact; and risk analysis. 2. They stated that in February 2025, over 14 months after commissioning, KRC advertised for consultancy services to undertake a feasibility study for the Nairobi Commuter Rail Network, explicitly excluding Line 8 (the Riruta–Ngong corridor) from the scope. This, the Petitioners argued, demonstrated that no feasibility study was ever undertaken in respect of the Project. They further stated that the Respondents' failure to produce any feasibility study despite the mandatory production order issued on 19th March 2026 reinforces this conclusion. ## Violation of the right to access information (Article 35) 1. The Petitioners and the KLDA made multiple specific written requests for project documents between June 2023 and April 2025, including letters dated 30th June 2023, 11th January 2024, 16th February 2024, 19th March 2024, 25th March 2024, 2nd May 2024, and 30th April 2025. 2. These requests were either unanswered or responded to with non-substantive generalities. When KLDA escalated to the Commission on Administrative Justice (CAJ) in June 2025, the CAJ's non-binding recommendation of 4th August 2025 merely advised re-submission of requests and did not compel disclosure. 3. The Court issued a mandatory production order on 19th March 2026 requiring production of eight categories of documents, feasibility studies, EPC contract, procurement records, parliamentary approvals, public participation records, Cabinet memoranda, financing instruments, and ESIA reports — within 30 days. As at the date of the hearing on 3rd June 2026, 75 days after the deadline, no documents had been produced. The Petitioners submitted that this constitutes a violation of Article 35 of the Constitution. ## Lack of meaningful and timely public participation 1. The Petitioners argued that the Project was commissioned and construction commenced before any genuine public participation took place, in breach of Articles 10, 201, and 232 of the Constitution. The KLDA attended only one meeting arranged by KRC on 12th April 2024, well after the project had been commissioned and construction had commenced. At that meeting, KRC had not yet conducted an Environmental and Social Impact Assessment (ESIA), and the NEMA environmental licence was not issued until 19th September 2024. 2. The Petitioners stated that public participation conducted retroactively, after irreversible decisions had been made, is constitutionally defective. KRC's letter of 19th October 2023 expressly assured stakeholders that engagement would occur during the design development stage and the ESIA and Resettlement Action Plan (RAP) processes, thereby creating legitimate expectations that were wholly frustrated. No alternative routes were identified, evaluated, or disclosed to the public as required under the PIM Regulations. ## Environmental violations (Articles 42, 69, and 70) 1. The Petitioners and KLDA challenged the Project's environmental compliance, arguing that construction commenced without the required ESIA and NEMA licence. The NEMA licence was issued on 19th September 2024, about nine months after construction began. 2. The ESIA public participation meetings were held between January and April 2024, after construction had commenced. The Petitioners further allege that the Project traverses the ecologically sensitive Karen area and encroaches on Ngong Forest, both areas with significant biodiversity and tree cover, without adequate mitigation measures or consideration of less destructive alternative routes. ## 1st Respondents (KRC's) Legal and Financial Incapacity 1. The Petitioners challenge the legal and financial capacity of KRC to undertake the Project and the broader Kes 2.824 trillion project pipeline. KRC's audited financial statements (Exhibit OOO-1, Part 2) show accumulated losses of Kes 197 billion, negative equity of Kes 72 billion, and work-in-progress of approximately Kes 136 billion, six times KRC's own-source revenue of Kes 21 billion. 2. The Petitioners argued that authorizing a technically insolvent entity with negative equity to implement a multi-trillion infrastructure portfolio, without a credible financing plan, violates Sections 8, 9, 11, 11A, 12, and 13(2)(a)(3)(4) of the Kenya Railways Corporation Act (Cap 397), Sections 11 and 12 of the State Corporations Act, and Article 201(d) of the Constitution. # Petitioners Submissions; 1. The Petitioners appeared in person and filed written and oral submissions. The 2nd Petitioner also filed Rebuttal Submissions on 1st June 2026 in reply to the Written Submissions of the 1st, 2nd, and 9th Respondents. The Petitioners' submissions advanced the following arguments: ### Admissibility of Evidence 1. The Petitioners submitted that the Respondents' objections to their exhibits (OOO-1, BMM, BMM-5) as uncertified under Sections 79–81 of the Evidence Act were legally flawed on five grounds: (i) The Respondents themselves relied on uncertified documents in their own Replying Affidavits and could not approbate and reprobate; (ii) The 1st to 8th Respondents as custodians of the public documents had waived the objection by not raising it, and the 9th Respondent, a private contractor, had no standing to assert evidentiary objections on behalf of state organs; (iii) The Supreme Court decision in **Kenya Railways Corporation v Okiya Omtatah [2023] KESC 35 (KLR)** was distinguishable, as it concerned clandestinely obtained internal correspondence whereas the Petitioners' documents were Auditor-General reports tabled in Parliament (that are public documents under Article 229(7)), Appropriation Acts, KRC's audited financial statements, and Gazette Notices; (iv) Article 35(3) imposes a positive duty on the State to publish important information having failed to do so, the Respondents could not hide behind certification technicalities; and (v) Under Article 50(4), evidence is excluded only if admission would render the trial unfair, and no such prejudice arose here. ### Res Judicata — No Identity of Issues 1. The Petitioners argued that the doctrine of res judicata does not bar the Petition. The 2023 Supreme Court SGR case concerned SGR Phase 1 procurement under a government-to-government arrangement and did not determine: the constitutionality of the RDLF under Article 206; the legality of financing a metre-gauge railway from the RDLF; the legality of the Riruta–Ngong procurement; KRC's approval of the Kes 2.824 trillion pipeline despite insolvency; or the constitutionality of the 2026 Amendment Act. The ELC Petition No. E028 of 2024 was confined to environmental and land-use matters under EMCA, and the ELC expressly declined jurisdiction over public finance, procurement, and parliamentary appropriation questions, directing those matters to the appropriate forum. There was accordingly no identity of subject matter. ### The 2026 Amendment Act Does Not Render the Petition Moot 1. The Petitioners advanced five arguments: (i) The Amendment Act has no retrospective effect; all impugned actions predate 27th March 2026; (ii) The Amendment Act is itself unconstitutional and violated Articles 206(1)(a), 211, 221–223, and 10; (iii) The core grievances remain the RDLF's exclusion from the Consolidated Fund, procurement irregularities, lack of public participation, KRC's insolvency, and the Ksh.211 billion diversion; (iv) The Respondents cannot simultaneously argue that the pre-2026 law authorised the project and that the 2026 Amendment Act was needed to authorize it; they cannot approbate and reprobate; and (v) Even if the Act were valid, the Respondents must procure the project afresh under the new governance architecture it establishes. ### Single-Sourcing — The Standardization Defence 1. The Petitioners faulted the "standardization" defence under Section 103(2)(d) of PPADA on three grounds: (i) The Riruta–Ngong Project is metre-gauge while the SGR is standard-gauge, entirely different and incompatible technologies with different track widths, signalling, and operations. The existing Nairobi CBD MGR network, to which the Riruta–Ngong line connects, was not built by CRBC. There is no technical standardization; (ii) Section 103(2)(d) imposes cumulative conditions limited to the size of procurement relative to the original, reasonable price, and unsuitability of alternatives — none of which was satisfied. SGR Phase 1 cost approximately Kes.500 billion; the Riruta–Ngong project is not "limited" by any measure; no price comparisons were produced; and dozens of competent global rail contractors existed; and (iii) CRBC is a private international EPC contractor, not a state corporation acting on behalf of a foreign government. The government-to-government exemption from procurement rules, which the Supreme Court upheld in the 2023 SGR case, does not apply here. ### Separation of Powers — Policy Versus Constitutional Compliance 1. The Petitioners submitted that the Petition did not seek to override policy choices but to enforce constitutional boundaries on the exercise of power. Relying on **Attorney General & 2 others v Ndii & 79 others [2022] KESC 8,** the Petitioners submitted that separation of powers does not immunize unconstitutional conduct from judicial review. The specific constitutional violations pleaded — exclusion of revenue from the Consolidated Fund without reasonable justification (Article 206); procurement without transparency or competition (Article 227); expenditure without parliamentary appropriation (Articles 206, 221–223); and absence of public participation (Articles 10, 35, 47) — are justiciable constitutional questions, not policy preferences. It was urged that the respondents' authorities on separation of powers (OUTA; Nottinghamshire County Council; SG v Secretary of State) concerned challenges to budgetary wisdom rather than constitutional process. ### Public Finance — KRC's Insolvency and the Ksh.2.824 Trillion Pipeline 1. The Petitioners placed before the Court documentary evidence showing that: KRC has accumulated losses of Kes.197 billion and negative equity of Kes.72 billion; the RDLF has been diverted from its mandate, including a Kes.33.5 billion loan to the Petroleum Development Levy Fund; the National Executive approved a Kes.2.824 trillion project pipeline for an insolvent entity without a financing plan; the National Assembly allocated zero funds to the Project in FY 2023/2024; KRC's work-in-progress of Kes.136 billion is six times its own-source revenue; and approximately Kes.5.2 billion was paid to CRBC as irregular contra entries and Kes.18.6 billion to Afristar as pre-operation costs from the RDLF. It was submitted that approving a multi-trillion project pipeline for an insolvent entity without a financing plan is irrational and violates Article 201(d). ### Public Participation — Retroactive and Constitutionally Defective 1. The Petitioners argued that the ELC case determined public participation only for environmental licensing under EMCA, not for the policy decision to fund the Project from the RDLF, the procurement decision, or the budgetary allocation. Relying on Mui Coal Basin Local Community v PS Ministry of Energy [2015] eKLR, the Petitioners submitted that public participation must occur before irreversible decisions are taken. ESIA public participation meetings were held only between January and April 2024, well after commissioning and construction had begun. ### The Fait Accompli Defence 1. The Petitioners rejected the 9th Respondent's proportionality argument based on 40% completion as a classic fait accompli defence: "we have already done the illegal act, so you cannot stop us." It was urged that accepting the said defence would produce an absurd constitutional principle: the further an unconstitutional project progresses, the less accountable it becomes, effectively enabling any public body to evade constitutional scrutiny by rapid implementation. Relying on All Pay (South Africa), the Petitioners noted that the South African Constitutional Court declared the contract invalid even at an advanced stage, merely suspending the declaration to allow fresh procurement. They urged that the 9th Respondent had not provided evidence that verified the 40% completion figure even after the Court issued mandatory production orders. ### Non-Compliance with the Production Order — Adverse Inferences 1. The Petitioners submitted that the 1st and 2nd Respondents' refusal to comply with the Court's mandatory production order of 19th March 2026, 75 days after the deadline, with no documents produced, no application for an extension, and no explanation entitled the Court, under Section 112 of the Evidence Act, to draw the strongest adverse inferences, including that no proper feasibility study exists; that the procurement was irregular; that no parliamentary appropriation was obtained; that the financing arrangements are unlawful; and that the contract with CRBC is irregular. ### Key Constitutional and Public Law Doctrines 1. The Petitioners submitted that a convergence of constitutional and public law doctrines supported the grant of the reliefs sought: illegality (all acts are void ab initio for lack of lawful authority); derivative unconstitutionality (all actions flowing from the unconstitutional RDLF are likewise unconstitutional); legitimate expectation (taxpayers expected the levy to fund only SGR construction); public trust (RDLF monies are held in trust for the people of Kenya, and their diversion breaches fiduciary obligations); restitution and unjust enrichment (CRBC, APEC, and Afristar received billions under irregular contracts and must make restitution); and *res ipsa loquitur* (the facts speak for themselves). # Responses and Submissions Filed by the Respondents and the Interested Parties ## 1st and 2nd Respondents - Kenya Railways Corporation (KRC) and the Board of Directors 1. The 1st and 2nd Respondents filed a replying affidavit dated 27th January 2026 and written submissions dated 29th May 2026 and further written submissions dated 8th June 2026 in opposition to the Petition and Oral amendment of the Petition. The Replying Affidavit and Submissions state as follows: ### Procedural Objection — Challenge to section 8(4H) not properly before the Court 1. The 1st and 2nd Respondents raised a threshold procedural objection against the 1st Petitioner's attempt in oral submissions to invite the Court to pronounce on the constitutionality of Section 8(4H) of the Miscellaneous Fees and Levies (Amendment) Act, 2026. By a Ruling of 15th May 2026, the Court dismissed the Petitioners' Notice of Motion dated 24th April 2026 seeking leave to file an Amended Petition introducing that challenge. Accordingly, the challenge to the 2026 Amendment Act formed no part of the initial pleadings, and the Court could not adjudicate a cause of action not properly before it. The Respondents cited the Supreme Court's decision in **Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR** for the proposition that a party is bound by its pleadings. ### Constitutionality of Section 8(4H) (in the Alternative) 1. The 1st and 2nd Respondents submitted that Section 8(4H) does not violate Articles 201, 211, or 220(1) of the Constitution. Parliament had, through legislation, validly authorized the RDLF Board to leverage up to 90% of the fund within prescribed limits. The impugned leveraging mechanism was authorized within the constitutional framework and was subject to parliamentary oversight through the broader RDLF governance structure. ### Validity of the 2026 Amendment Act — Legislative Process Was Constitutionally Regular 1. The 1st and 2nd Respondents submitted that the 2026 Amendment Act was validly enacted by the National Assembly alone, without requiring Senate concurrence. As a national fiscal measure regulating a national levy fund and railway infrastructure financing, it did not constitute a "Bill concerning county government" within the meaning of Article 110(1) of the Constitution. Relying on The Senate & 3 Others v Speaker of the National Assembly & 10 Others, Petition No. 19 (E027) of 2021 KESC 11 (KLR), they argued that the Senate concurrence process under Article 110(3) is triggered only when a question arises as to whether a Bill concerns county government. The Speaker of the National Assembly was constitutionally entitled to determine that the 2026 Amendment Act did not require Senate involvement, as it related solely to national fiscal and infrastructure matters within the Fourth Schedule. ### Presumption of Constitutionality of Statutes 1. The 1st and 2nd Respondents invoked the strong presumption that every Act of Parliament is constitutional until declared otherwise, placing the heavy burden of displacing that presumption on the Petitioners. They relied on **Institute of Social Accountability & another v National Assembly & 4 others [2015] eKLR**; **Kidero v Muthaura & 4 others (Petition 372 of 2017) [2023] KEHC 24447; Molline Traders Limited & another v Tourism Regulatory Authority & 4 others [2020] eKLR**; and **Kamau v Attorney General & 14 others (Constitutional Petition 244 of 2019) [2021] KEHC 450.** They submitted that the petitioners had failed to discharge this burden. 2. The 1st and 2nd Respondents urged the Court to: (i) decline to make any finding on the constitutionality of Section 8(4H), as the challenge was procedurally impermissible; (ii) in the alternative, hold that Section 8(4H) does not violate Articles 201, 211, or 220(1); and (iii) hold that the 2026 Amendment Act was validly enacted by the National Assembly without requiring Senate concurrence. They characterized the Petitioners' claim for special damages as an afterthought devoid of evidentiary foundation, and urged the Court to dismiss the Petition with costs. ## 4th, 5th, 6th Respondents; ## Lawful Sovereign Financial Mobilization and Parliamentary Oversight 1. The 4th, 5th, and 6th Respondents filed joint skeletal submissions dated 9th June 2026, asserting that the Petitioners fundamentally misunderstand the constitutional division of labour in resource mobilization. Their position rests on three arguments: 2. The National Government borrowed funds from the Exim Bank to finance the capital development of the national railway infrastructure network — a legitimate exercise of sovereign borrowing within the Executive's constitutional mandate. 3. The 4th Respondent (National Treasury) is the primary Ministry constitutionally and statutorily responsible for mobilizing financial resources for structured repayment of those loans and for allocating them toward active public utility. The Treasury was acting within its core mandate. 4. The entire credit mobilization and loan repayment matrix was fully sanctioned by the 7th Respondent (National Assembly). Sovereign debt commitments were explicitly vetted and approved by the legislature through statutory channels, completely neutralizing the Petitioners' claims of unvetted or irregular debt exposure. 5. They contended that the judiciary lacks the institutional capacity or constitutional mandate to manage public debt, supervise external credit facilities, or micromanage treasury repayment timelines. When the National Treasury acts under parliamentary authorization to secure and repay infrastructure financing, its decisions constitute high-level economic policy and warrant judicial deference. **Lawfulness of Direct Procurement of CRBC and APEC Consortium** 1. In response to submissions that CRBC and APEC Consortium were unconstitutionally single-sourced without open competitive tendering, which alleged action was violative of Article 227 of the Constitution and Sections 103(2)(d) and 137(1) and (3) of the Public Procurement and Asset Disposal Act (PPADA) and that the standardization defence was inapplicable because the Riruta–Ngong Project is metre-gauge while the SGR is standard-gauge, fundamentally incompatible technologies, the Attorney General submitted that the project was lawful. 2. The 4th, 5th and 6th Respondents submitted that the procurement strictly complied with Section 103(2)(d) of PPADA, which permits direct procurement for reasons of technical standardization or compatibility with existing infrastructure. Their justification rested on three arguments: 3. CRBC was the principal contractor for SGR Phase 1 (Mombasa–Nairobi) and Phase 2A (Nairobi–Naivasha). Its engagement for the Riruta–Ngong Project continues an existing contractual and operational relationship. 4. APEC Consortium served as the Client Engineer that designed, reviewed, and supervised construction for Kenya Railways across all SGR phases. Its engagement as Project Supervisor draws on institutional knowledge of the railway network's engineering standards. 5. The Riruta–Ngong Project functions as a last-mile commuter connection aggregating passenger traffic for the main SGR terminals. Using the existing engineering teams was an objective operational necessity to ensure seamless grid compatibility across the national rail network. 6. They relied on the Court’s decision in **High Court of Kenya, Public Procurement Administrative Review Board & another v Republic & 2 others ex-parte China Road & Bridge Corporation**: Open competitive tendering is not an inflexible rule where a contractor possesses singular, proprietary technical layout continuity of an ongoing transport corridor network. Direct procurement under the standardization exemption is legally valid and safeguards public funds from fragmentation risks. **Financial Transparency and the Auditor General's Audit Reports** 1. The 4th, 5th and 6th Respondents submitted that successive statutory audits by the Auditor General confirm effective, legal, and regularized financial management of the RDLF. Their position by audit year is: 2. FY ended 30th June 2021 (Exhibit MD-6): Standard Qualified Opinion on routine foreign exchange rate translation matters only. No adverse findings, no financial diversion findings. 3. FY ended 30th June 2022 (Exhibit MD-7): Standard Qualified Opinion confirming clear accounting transparency with zero structural illegality findings. 4. FY ended 30th June 2023 (Exhibit MD-8): Standard Qualified Opinion certifying regular, lawful use of public resources with no adverse finding. 5. FY ended 30th June 2024 (Exhibits MD-9 and MD-10): Disclaimer of Opinion — characterised by the Respondents as arising from administrative timeline backlogs and minor delays in submitting physical files, which were later fully presented in the subsequent audit cycle. * 1. The Respondents' central argument is that at no point has the Auditor General issued an Adverse Opinion against the RDLF, stripping the Petitioners' case of its foundational claims of financial impropriety. 6. They relied on the decision of the court in **Speaker of the Senate & another v Speaker of the National Assembly & 7 others [2013] eKLR** wherein the court held that constitutional bodies must be allowed to exercise their technical oversight mandates. Where the Auditor General has continuously audited an economic framework and declined to find structural diversion of funds, courts should not substitute those determinations with unsubstantiated external allegations. ## Compliance with the Public Investment Management Framework 1. The Respondents submit that the Project is backed by an approved pre-feasibility study and PIMIS approval. Their specific submissions are: 2. The Ministry of Roads and Transport is guided by the Integrated National Transport Policy, specifically page 54, Sections 138(c), (d), and (e), mandating mass rapid transport links within the Nairobi Metropolitan Region. The Project falls squarely within this policy framework. 3. The Project is backed by an approved pre-feasibility study for the integrated railway link to the SGR — comprising the Riruta–Ngong line, Ngong–Kiserian, and Kiserian–Ongata Rongai — approved via a National Treasury letter dated 10th July 2024 (Ref: TNT/PIM/PROJ/7 Vol.III (81)). 4. The National Treasury formally approved the Project concept note within the Public Investment Management Information System (PIMIS) in strict compliance with the PFM Regulations, 2022. 1. They relied on the decision in **Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others eKLR (Supreme Court)** wherein court held thatStatutory language must be read purposively to prevent commercial or operational absurdities. There is a clear operational nexus between the SGR and the Riruta–Ngong metre-gauge feeder line. Disconnecting a last-mile connectivity project from SGR operational targets directly undermines the legislative intent behind the RDLF's establishment. ## Public Interest and the Balance of Convenience 1. The 4th, 5th and 6th Respondents submitted that an overriding public interest in the completion of the Project outweighs the Petitioners' procedural complaints. Their specific submissions are: 2. The Project serves the exclusive public benefit of residents in Riruta, Ngong, Kiserian, and Ongata Rongai. 3. Phase 1 construction works commenced on 23rd January 2024 and stood at 39.18% completion as of 30th December 2025. 4. Stalling the Project would trigger immense public inconvenience, waste taxpayer revenue already deployed, and disrupt carbon reduction and traffic decongestion programs. 1. They relied on the decision of the Court of Appeal in **Kenya Airport Authority v Mitu-Bell Welfare Society & 2 others [2016] eKLR** wherein the court held that ongoing public infrastructure developments will not be frozen where the balance of convenience demonstrates that halting the works causes greater detriment to the public interest than allowing completion. 2. The Attorney General argued that the court should consider the amended legal framework in the Miscellaneous Fees and Levies (Amendment) Act, 2026, which now expressly permits the use of the RDLF for broader railway infrastructure projects including metre-gauge lines. The Attorney General contended that the Project was implemented within a constitutional and statutory framework, and that the 2026 Amendment Act validated and prospectively regularized the RDLF's use for commuter railway projects. The Attorney General supported KRC's application to lift the conservatory orders, submitting that Parliament's legislative response demonstrated that the government's approach was within constitutional bounds. ## The 7th Respondent - The National Assembly 1. The National Assembly's position was primarily that the 2026 Amendment Act enacted by Parliament demonstrated that Parliament had addressed the legal concerns raised, expanding the RDLF's mandate to encompass broader railway infrastructure. It joined KRC and the Attorney General in arguing that the conservatory orders should be lifted and the Project allowed to resume, citing the massive financial loss from the suspension and the Ksh.4 billion already spent. Notably, the National Assembly's response admitted that there had been zero allocation for the Riruta–Ngong Project in the Financial Year 2023/2024 estimates of development expenditure. ## The 9th Respondent - China Road and Bridge Corporation (CRBC) 1. CRBC was represented by Prof. Albert Mumma & Company Advocates. It filed written submissions and a Replying Affidavit in opposition to the Petition, urging the Court to dismiss the Petition with costs. 2. CRBC submitted that decisions on public fund allocation and the implementation of national infrastructure fall within the Executive and Parliament's purview, and that courts should not interfere with those policy decisions. It argued that many of the Petitioners' allegations were based on media reports and speculative assumptions about debt and future taxation, falling short of the evidentiary threshold for constitutional litigation. It maintained that it lawfully entered into a binding EPC contract with KRC and had already committed substantial resources, with the Project approximately 40% complete at the time of the hearing. 3. On procurement, CRBC asserted that Section 103(2)(d) of PPADA justified direct procurement on the basis of standardization and compatibility with existing railway infrastructure. It further argued that public participation and environmental approval issues had been conclusively determined by the Environment and Land Court in Petition No. E028 of 2024 (Sikalieh v KRC) and were therefore res judicata. It warned that halting the Project at 40% completion would leave incomplete structures, create safety and environmental hazards, and cause massive economic loss and job losses. It was submitted that public interest lay in completing the railway. ## The 10th Respondent - The APEC Consortium 1. APEC Consortium adopted a position broadly supportive of the 1st Respondent, arguing that it was lawfully engaged as the project supervisor and had committed significant resources to the Project. APEC aligned with the position that the procurement was done within the law and that halting the Project at its advanced stage would cause irreversible contractual and financial harm. # 1st Interested Party — Karen Langata District Association (KLDA) 1. The KLDA filed a Replying Affidavit sworn by its Chairman, Samora Sikalieh, in support of the Petition. KLDA represents approximately 32,000 residents of the Karen area spread across approximately 14,000 acres, and is a directly project-affected stakeholder as the railway corridor traverses the Karen area. 2. KLDA stated that from the outset, upon learning of the Project, it sought to engage the 1st Respondent and understand the scope, financial implications, and technical details of the Project. It made formal written requests between June 2023 and April 2025 for critical project documents. KRC's response of 19th October 2023 assured KLDA that stakeholders would be consulted and that ESIA and RAP studies would commence in November 2023. Those assurances were never fulfilled. 3. KLDA documented significant financing inconsistencies in the Project's stated costs and funding sources across official government records: the Auditor-General's Report on KRC for FY ending 30th June 2023 indicated a project cost of Kes 11,505,806,368 from the RDLF; Development Expenditure Estimates showed phased allocations totalling approximately Kes 5 billion; and the Senate Hansard of 16th July 2025 recorded construction costs of Kes 8.26 billion and land acquisition costs of Kes 2.8 billion. These contradictions, the KLDA submitted, demonstrated deliberate non-disclosure of the Project's true financial commitment. 4. KLDA confirmed that KRC's February 2025 advertisement for a comprehensive consultancy for the Nairobi Commuter Rail Network feasibility study conspicuously omitted Line 8 — the Riruta–Ngong corridor — from its scope. The 1st Petitioner informed KRC of this omission, but no explanation was provided. KLDA submitted that this demonstrated that no feasibility study was ever conducted for the Project. 5. KLDA attested that KRC procured CRBC and APEC Consortium through direct procurement without open competitive tendering or any disclosed justification. KLDA proposed three viable alternative transport solutions that the Respondents had failed to consider: utilising the existing SGR terminus at Kangawa in VET Farm to avoid duplication; a commuter line from Riruta through VET Farm along government land to minimise compulsory acquisition; and dualling of Ngong Road, which would address congestion with significantly lower cost and land impact. 6. KLDA confirmed that the Project was commissioned in December 2023 and construction commenced immediately, with the first and only meeting arranged by KRC occurring on 12th April 2024 — after all key decisions were irreversibly made. KLDA characterized this as retroactive rubber-stamping rather than genuine participation. KLDA further confirmed that through its correspondence, it was never provided with any pre-feasibility or feasibility study, procurement documents, budgetary proposals, parliamentary approvals, or engineering designs, despite repeated requests between 2023 and 2025. **Analysis and Determination** 1. I have considered the Petition, the responses thereto as well as the submissions of the parties. I will first distil the issues for determination and thereafter undertake analysis of the facts and the applicable law. On the basis of the findings I make, the Court will issue the final orders. **Issues for determination** 1. What then are the issues in this Petition? Issues are points of dispute or disagreement between the parties to the legal proceedings that the court must determine in order to reach a just determination of a matter. In my view, these are: 2. **Whether the use of the Railway Development Levy Fund (RDLF) to finance the Riruta–Ngong Commuter Metre Gauge Railway Project was lawful and constitutional under the statutory framework in force before 27th March 2026;** 3. **Whether the Miscellaneous Fees and Levies (Amendment) Act, 2026 operates retrospectively to cure constitutional violations arising from the use of the RDLF for the Project before its commencement date;** 4. **Whether the commencement of construction and expenditure of public funds on the Project without specific parliamentary appropriation in Financial Year 2023/2024 violated Articles 206, 220, 221, 222, and 223 of the Constitution;** 5. **Whether the direct procurement of CRBC (9th Respondent) as contractor and APEC Consortium (10th Respondent) as supervisor without open competitive tendering violated Article 227 of the Constitution and the applicable provisions of the Public Procurement and Asset Disposal Act, 2015;** 6. **Whether the Project was implemented without the mandatory pre-feasibility and feasibility studies required by the Public Finance Management (Public Investment Management) Regulations, 2022;** 7. **Whether the Respondents violated the Petitioners' and KLDA's right to access information under Article 35 of the Constitution;** 8. **Whether the public participation conducted was constitutionally adequate under Articles 10, 201, and 232;** 9. **Whether the present Petition is barred by the doctrine of res judicata by virtue of the Supreme Court's judgment in Kenya Railways Corporation & 2 Others v Okiya Omtatah Okoiti & 3 Others [2023] KESC 38 or the ELC judgment in Samora Sikalieh v Kenya Railways Corporation & Others [2025] KEELC 4927;** 10. **What adverse inferences, if any, the Court should draw from the 1st and 2nd Respondents' failure to comply with the production order of 19th March 2026;** 11. **What reliefs are appropriate in the circumstances.** **I will look at each of these issues in turn.** **Whether the present Petition is barred by the doctrine of res judicata by virtue of the Supreme Court's judgment in Kenya Railways Corporation & 2 Others v Okiya Omtatah Okoiti & 3 Others [2023] KESC 38 or the ELC judgment in Samora Sikalieh v Kenya Railways Corporation & Others [2025] KEELC 4927** 1. This issue goes to the competence of this Court to entertain the Petition. The Respondents raised two judgments as potential bars**: the Supreme Court's judgment in Kenya Railways Corporation & 2 Others v Okiya Omtatah Okoiti & 3 Others, Petition Nos. 13 & 18 (E019) of 2020 (Consolidated) [2023] KESC 38 (KLR) (16th June 2023) ("the 2023 SGR case"), and the Environment and Land Court's judgment in Samora Sikalieh v Kenya Railways Corporation & Others, ELC Petition No. E028 of 2024 [2025] KEELC 4927 ("the ELC case").** 2. Section 7 of the Civil Procedure Act, Cap. 21 provides for the doctrine of *res judicata*. The Supreme Court in **John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others, Petition No. 17 of 2015 [2021] KESC eKLR** comprehensively restated the elements of this doctrine as: 3. *the matter must have been directly and substantially in issue in the former suit;* 4. *between the same parties or their privies;* 5. *litigating under the same title;* 6. *heard and finally determined; and* 7. *by a court competent to try the subsequent suit.* All five elements must be present at the same time for the doctrine to apply. 1. To determine whether the matter is res judicata, it is important that each of the cases is outlined. The 2023 SGR case was on the procurement of SGR Phase 1 (Mombasa–Nairobi) under a government-to-government arrangement concluded in 2012 under the repealed Public Procurement and Disposal Act, 2005. That case is different from the present Petition because it did not determine the constitutionality of the RDLF under Article 206 of the Constitution; the legality of using the RDLF to finance the construction of metre-gauge commuter railway; the parliamentary appropriation requirements for the Riruta–Ngong Project; the legality of the 2026 Amendment Act; KRC's current, alleged insolvency and the Ksh.2.824 trillion expenditure of public funds; or the procurement of CRBC for a metre-gauge project. There is no similarity of subject matter between the 2023 SGR case and the present Petition. 2. The ELC case, on the other hand, was on compliance with the Environmental Management and Coordination Act (EMCA), specifically whether proper Environmental and Social Impact Assessment processes and NEMA licensing were conducted. ***At paragraph 107 of its judgment, the ELC expressly stated that it lacked jurisdiction to determine constitutional public finance, parliamentary appropriation, procurement under Article 227, access to information, and feasibility study issues, and directed those matters to the appropriate forum.*** A court that expressly declined jurisdiction and directed matters elsewhere cannot be said to have heard and finally determined those matters. The ELC judgment, properly read, is an express acknowledgement that this Court is the appropriate forum. 3. In **Okiya Omtatah Okoiti & Another v Attorney General & 6 Others, Petition No. 593 of 2013 [2014] eKLR,** Justice Lenaola held that whereas res judicata principles have generally been applied liberally in civil suits, the doctrine must be applied sparingly in rights-based constitutional litigation, and the right of access to courts for constitutional violations should not be readily restricted. I find and hold that the doctrine of res judicata does not bar this Petition. The objection on this ground is dismissed. **Whether the use of the Railway Development Levy Fund (RDLF) to finance the Riruta–Ngong Commuter Metre Gauge Railway Project was lawful and constitutional under the statutory framework in force before 27th March 2026.** 1. The RDLF was established by Section 6 of the Finance Act No. 38 of 2013, which inserted Section 127A into the Customs and Excise Act (Cap. 472) imposing a Railway Development Levy of 1.5% on the customs value of all imported goods, with the proceeds to be applied "for the construction of a standard gauge railway network in order to facilitate the transportation of goods." The Tax Laws (Amendment) Act No. 2 of 2020 extended the permissible use to include the "operation" of the Standard Gauge Railway. 2. This legislative history was confirmed by all three levels of the court in the SGR litigation. In the **High Court in Petition No. 58 of 2014 [2014] eKLR,** the Court found that Parliament had sanctioned the RDLF for SGR construction. The Court of Appeal in **Civil Appeal Nos. 13 & 10 of 2015 [2020] KECA 589** confirmed the SGR-specific purpose of the Fund. **The Supreme Court in [2023] KESC 38** reaffirmed that Parliament had played its role through the Finance Act, 2013, "establishing the railway levy for the SGR." Each of these decisions understood and applied the RDLF as an SGR-specific fund. 3. The Riruta–Ngong Project is a metre-gauge commuter railway. It is not a Standard Gauge Railway or any component thereof. The two systems use different rolling stock, different signalling infrastructure, different operational parameters, and are physically incompatible. The Project does not constitute "construction or operation of the Standard Gauge Railway network" under any reasonable interpretation of that phrase. 4. Parliament expressly stipulated "Standard Gauge Railway" as the object of the RDLF. That expression, in its ordinary and natural meaning, excludes a metre-gauge commuter railway. Section 24(7) of the Public Finance Management Act, 2012 is mandatory: a public fund shall be applied only for the purpose for which it was established. Any diversion of RDLF funds to the Riruta–Ngong Project before the 2026 Amendment Act came into force was accordingly unlawful. 5. The 4th to 6th Respondents' submission on "purposive interpretation", grounded in the Supreme Court's guidance in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, is misplaced in the present matter. Purposive interpretation is a tool for giving effect to the evident legislative intent behind a statute, not for enlarging the scope of a restricted fund to cover expenditure Parliament never authorized. The operative question is not whether a metre-gauge feeder line serves commuters who might also use the SGR; it plainly does. The operative question is whether Parliament, when enacting the RDLF, intended its proceeds to finance metre-gauge commuter railways. It plainly did not. The significance of the 2026 Amendment Act is that it proves Parliament did NOT previously authorize such use: if such use were already within the Fund's mandate, no amendment would have been necessary. 1. RDLF's exclusion from the Consolidated Fund is permitted only if there is a reasonable justification under Article 206(1)(a) of the Constitution. The RDLF was justified by its SGR-specific mandate. When RDLF proceeds are applied to projects outside that mandate, the justification for the Fund's exclusion from the Consolidated Fund is not available for those proceeds, and their application to non-SGR purposes violates Article 206(1)(a). The Supreme Court's decision in **Speaker of the Senate & Another v Speaker of the National Assembly & 7 Others [2013] eKLR** stated that. ‘***Parliament must operate under the Constitution which is the supreme law, and constitutional requirements on public finance are not aspirational targets***.’ 2. In the circumstances I find and hold that the application of RDLF funds to the Riruta–Ngong Commuter Metre Gauge Railway Project prior to 27th March 2026 was unconstitutional, in violation of Articles 201(a) and (d) and 206(1) of the Constitution and Section 24(7) of the Public Finance Management Act. **Whether the Miscellaneous Fees and Levies (Amendment) Act, 2026 operates retrospectively to cure constitutional violations arising from the use of the RDLF for the Project before its commencement date.** 1. The Miscellaneous Fees and Levies (Amendment) Act, 2026 was assented to on 13th March 2026 and commenced on 27th March 2026. Whereas the 1st and 2nd Respondents and the Attorney General submitted that this Act cures any alleged illegality in the Project's financing, I do not accept this position. 2. The fundamental principle in Kenyan law is that statutes apply prospectively unless they expressly provide for retrospective operation. Laws passed by the National Assembly are applied prospectively unless the law expressly states otherwise. From the reading of the 2026 Amendment Act, the Act contains no express retrospective clause. No provision in the Act validates contracts entered into before its commencement, procurement conducted before its commencement, or expenditure incurred before its commencement. 3. In the present matter, the contract for the Project was awarded in September 2022; the Project was commissioned on 15th December 2023; construction commenced on 23rd January 2024; and all RDLF disbursements in Financial Years 2023/24 and 2024/25 were made before the Amendment Act came into force. An amendment that does not purport to operate retrospectively cannot, as a matter of law, validate acts that were unconstitutional when done. All the impugned acts occurred before 27th March 2026. 4. The Respondents cannot approbate and reprobate. If the pre-2026 legal framework lawfully authorised the Project (as the Respondents also claim in the alternative), then the 2026 Amendment Act is irrelevant. If the Amendment Act supplies the legal authority (as the Respondents appear to suggest), then authority did not exist when the Project was commissioned, contracted, and built. The Respondents cannot simultaneously rely on both positions. 5. In the circumstances I find and hold that the 2026 Amendment Act does not retrospectively cure the constitutional violations arising from the use of RDLF funds for the Riruta–Ngong Project prior to 27th March 2026. **Whether the commencement of construction and expenditure of public funds on the Project without specific parliamentary appropriation in Financial Year 2023/2024 violated Articles 206, 220, 221, 222, and 223 of the Constitution.** 1. The Constitution of Kenya, 2010 establishes a comprehensive framework for the appropriation of public funds. Article 220(2) requires that estimates of expenditure of money provided for in the national budget are prepared. Article 221(1) requires the Cabinet Secretary for Finance to submit annual estimates of revenue and expenditure to the National Assembly. Article 221(3) empowers the National Assembly to approve or amend the estimates. Article 222(1) provides that after the National Assembly has passed an Appropriation Act, expenditure may be withdrawn from the Consolidated Fund. Article 223(1) permits supplementary budgets in limited circumstances. Taken together, these provisions vest exclusive authority over public expenditure in Parliament. No amount of executive approval can substitute for parliamentary appropriation. 2. The 7th Respondent (National Assembly) admitted that there was no allocation for the Riruta–Ngong Project in the Estimates of Development Expenditure for Financial Year 2023/2024, even as construction was actively proceeding. This implies that public money was expended on this Project without Parliamentary approval. 3. The 4th to 6th Respondents' submission that general parliamentary sanction of the Exim Bank borrowing framework is sufficient does not answer this constitutional requirement. Parliamentary approval of a borrowing instrument or framework is separate from and does not substitute for the specific parliamentary appropriation of funds for a named project in the annual Estimates of Development Expenditure. **The Supreme Court made this clear in its Advisory Opinion in Reference No. 3 of 2019 [2020] eKLR**, stating that the National Treasury does not have discretion to apply public funds to expenditure items outside the approved parliamentary framework. The National Treasury acts as trustee of public resources under strict constitutional constraints, not as an autonomous distributor of funds. 4. I find and hold that the commencement of construction and the expenditure of public funds on the Riruta–Ngong Project in Financial Year 2023/2024 without parliamentary appropriation violated Articles 206(1), 220(2), 221, 222, and 223 of the Constitution. **Whether the direct procurement of CRBC (9th Respondent) as contractor and APEC Consortium (10th Respondent) as supervisor without open competitive tendering violated Article 227 of the Constitution and the applicable provisions of the Public Procurement and Asset Disposal Act, 2015.** 1. Article 227(1) of the Constitution provides: "When a State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective." The mode of public procurement has been given constitutional significance by the 2010 Constitution, as it was noted by the Court of Appeal in Civil Appeal Nos. 13 & 10 of 2015 [2020] KECA 589. 2. KRC, as a State corporation under the State Corporations Act, is a public entity for purposes of Article 227. The Public Procurement and Asset Disposal Act, 2015 (PPADA) is the implementing legislation. Section 103(2)(d) of PPADA permits direct procurement where works, services, or goods are required from a particular provider for reasons of standardization or compatibility with existing goods or services. 3. The Respondents' case for direct procurement of CRBC rests on the assertion that CRBC, as contractor for SGR Phases 1 and 2A, possesses unique technical expertise and that the Riruta–Ngong Project requires standardization and compatibility with existing SGR infrastructure. This position is incorrect for the following reasons. (i) There is no technical basis for standardization between the SGR (standard-gauge, 1,435mm) and the Riruta–Ngong Project (metre-gauge, 1,000mm). These are fundamentally different and physically incompatible railway systems. The fact that a passenger may use both systems on separate journeys does not create the engineering standardization that Section 103(2)(d) contemplates. Section 103(2)(d) is concerned with technical compatibility of goods, works, or services, not operational adjacency. The existing Nairobi CBD metre-gauge network, to which the Riruta–Ngong line is intended to connect, was not constructed by CRBC. ii) The scale condition was not met. SGR Phase 1 cost approximately Ksh.500 billion. Even the first phase of the Riruta–Ngong Project at Ksh.11.5 billion is not "limited" relative to the original contract in any commercially meaningful sense. The full project scope of Ksh.35.7 billion (three phases) is even less defensible as "limited." iii) The Respondents produced no evidence of price reasonableness — no market analysis, no comparative pricing, and no evidence that the contract price offered by CRBC was benchmarked against competitive alternatives. The 1st and 2nd Respondents' failure to produce the EPC contract despite the Court's production order is significant. This deprives the Court of the primary document that would demonstrate or refute compliance with Section 103(2)(d). iv) Fourth, I note that CRBC is, on its own admission, a private international EPC contractor, not a state corporation acting on behalf of a foreign government. The government-to-government exemption under Section 6(1) of the repealed PPDA, 2005, which the Supreme Court upheld in the 2023 SGR case, has no application in the present proceedings. That exemption applied specifically to procurement under bilateral agreements between state corporations of two countries. It does not apply to a private contractor engaged on a commercial EPC basis. (v) Fifth, Section 137(1) and (3) of PPADA requires procuring entities to publicize contracts. The Petitioners' uncontroverted evidence is that the APEC Consortium contract was never publicized as required. 1. The Court of Appeal's declaration in the 2020 SGR appeal that KRC violated Article 227(1) in procuring CRBC for the SGR project is directly instructive where the same procuring entity has again engaged the same private contractor without competitive tendering, this time for a technically different project with even less justification. 2. It is my considered view that the procurement of CRBC as contractor and APEC Consortium as supervisor for the Riruta–Ngong Project violated Article 227(1) of the Constitution and Sections 103(2)(d) and 137(1) and (3) of PPADA. **Whether the Respondents violated the Petitioners' and KLDA's right to access information under Article 35 of the Constitution.** 1. Article 35(1) of the Constitution of Kenya,2010 guarantees every citizen the right of access to information. Article 35(3) imposes a duty on the State to publish and publicize information affecting the nation. 2. KLDA made specific, written, formal requests for project documents between June 2023 and April 2025. The requests identified specific categories of information: feasibility studies, procurement records, financing instruments, ESIA reports, and route alignments and were directed to the correct authorities. KRC's response of 19th October 2023 acknowledged the requests but provided no documents. Subsequent letters were simply ignored. KLDA escalated to the Commission on Administrative Justice in June 2025; the CAJ's response of 4th August 2025 was non-binding and ineffective. This Court issued a mandatory order on 19th March 2026 for the production of the documents, which the 1st and 2nd Respondents have not complied with. 3. The High Court in **Khalifa & Another v Principal Secretary, Ministry of Transport & 4 Others, Constitutional Petition E032 of 2019 [2022] eKLR** established that where the State refuses to disclose information on infrastructure projects, refusal must have a genuine purpose and demonstrable effect of protecting legitimate interests, prescribed by law. The Respondents in the present case asserted no specific statutory exemption under Section 6 of the Access to Information Act, 2016. They simply did not respond or made half-hearted responses. No constitutional or legitimate basis for withholding the documents and/or information requested by KLDA was given. 4. I find and hold that the refusal of the 1st to 6th Respondents to disclose project information between 2023 and 2026, culminating in its non-compliance with the Court order on production of the documents, constitutes a violation of Article 35 of the Constitution, 2010. **Whether the public participation conducted was constitutionally adequate under Articles 10, 201, and 232.** 1. The constitutional requirements for public participation in decisions affecting the public are entrenched in Articles 10(2)(a), 201(a), and 232(1)(d) of the Constitution. The High Court in **Mui Coal Basin Local Community & 15 Others v Permanent Secretary Ministry of Energy & 17 Others [2015] eKLR is instructive. *The foundational authority on public participation in Kenya established the minimum constitutional standards: the agency must fashion a participation program appropriate to the subject matter; the program must include access to and dissemination of relevant information; it must be inclusive and diverse; the government must take all views received into consideration in good faith; and, most crucially, public participation must occur before irreversible decisions are taken.*** 2. The Supreme Court in **British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & Others [2019] eKLR** went further to state that public participation must be real and not illusory. It is not a cosmetic or public relations exercise. It is not a mere formality undertaken to fulfil a constitutional requirement on paper. The test is whether citizens had a genuine and effective opportunity to influence the decisions that affected them. 3. In this case, the contract for the Project was awarded in September 2022. The Project was publicly commissioned on 15th December 2023, and construction commenced on 23rd January 2024. The ESIA public participation meetings were held between January and April 2024 after commissioning and construction commencement. NEMA's environmental licence was not issued until 19th September 2024. KLDA's first meeting with KRC was on 12th April 2024, by which time the Project corridor had been decided, the contractor engaged, financing committed, and ground broken. No alternative routes were disclosed or evaluated for KLDA's consideration. 4. KRC's own letter of 19th October 2023 had promised that stakeholders would be consulted during the design development stage and that ESIA and RAP processes would commence in November 2023. This created a legitimate expectation of genuine pre-implementation engagement that was wholly frustrated. I am guided by the decision of the **Court of Appeal in Legal Advice Centre & 2 Others v County Government of Mombasa & 4 Others [2018] eKLR,** where, relying on the South African Constitutional Court in Matatiele Municipality v President of South Africa [2006] ZACC 12, it held that the more discrete and identifiable the affected community and the more intense the effect on their interests, the more robust the engagement obligation. The Project traverses the Karen area, a defined community with identifiable property and environmental interests. 5. The ELC's finding of adequate public participation in the ELC case determined adequacy only for EMCA environmental licensing purposes and only in respect of the ESIA process. That determination does not cover public participation in the policy decision to fund the Project from the RDLF, the procurement decision, the route determination, or the broader constitutional obligations under Articles 10 and 201. I find and hold that the public participation conducted was retroactive, inadequate, and constitutionally defective. ## Non-Compliance with Production Order and Admissibility of Evidence 1. By the Ruling of 19th March 2026, this Court issued a mandatory production order directing the 1st and 2nd Respondents to produce, within 30 days the **feasibility and pre-feasibility study reports; the complete EPC contract between KRC and CRBC; all procurement records including tender committee minutes, evaluation reports, and PPRA approvals; parliamentary approvals and appropriation acts; public participation records; Cabinet memoranda and approvals; financing instruments and loan agreements; and ESIA reports and NEMA licences.** These are precisely the documents that would demonstrate whether the Project was lawfully planned, procured, and financed. 2. The deadline of 18th April 2026 elapsed. As at the date of the hearing of the Petition, no documents had been produced. No application for extension was filed. The explanation given for the failure was inadequate and unconvincing. 3. Section 112 of the Evidence Act provides that in civil proceedings the court may draw adverse inferences from the failure of a party to produce evidence within that party's power to produce. The principle is well established: where a party has control of relevant evidence and willfully withholds it despite a court order, the Court is entitled to presume that the evidence, if produced, would have been adverse to that party. I apply this principle in full. I draw the following adverse inferences: that no compliant pre-feasibility or feasibility study was conducted for the Project before commissioning; that the procurement of CRBC and APEC Consortium was irregular; that no parliamentary appropriation was obtained for the project in Financial Year 2023/2024; that the EPC contract between KRC and CRBC contains provisions that the Respondents regard as inconsistent with their case; and that the financing arrangements are not documented. 4. These adverse inferences reinforce and are consistent with the documentary evidence produced by the Petitioners. They are not the sole basis of my findings, but they weigh heavily against the Respondents on each issue where documentary proof was required. **Whether the Petitioners’ Exhibits are admissible** 1. On the admissibility of the Petitioners’ Exhibits 000-1, BMM-5, the 9th Respondent challenged the admissibility of the Petitioners' Exhibits OOO-1, relying on the Supreme Court's decision in the 2023 SGR case to the effect that irregularly obtained internal documents are inadmissible. I do not agree with the 9th Respondent on the said issue. The Petitioners' exhibits consist of: the Auditor General's Reports on KRC tabled in Parliament and therefore public documents under Article 229(7) of the Constitution; Estimates of Development Expenditure and Appropriation Acts published in the Kenya Gazette; KRC's audited financial statements, being statutory public filings; and Gazette Notices, which are subject to judicial notice under Section 60 of the Evidence Act. These documents bear no resemblance to the clandestinely obtained internal confidential communications the Supreme Court excluded in the SGR case. ## Article 35(3) of the Constitution of Kenya, 2010 imposes a proactive, positive duty on the State to publish and publicize information affecting the nation. Having failed to fulfil that duty, the Respondents are ill-placed to challenge the admissibility of documents that were made available from official public sources. The evidentiary objections are dismissed. ## KRC's Insolvency and the Ksh.2.824 Trillion Pipeline ## Article 201(d) of the Constitution of Kenya, 2010requires that public money be used in a prudent and responsible way. KRC's audited financial statements placed before this Court disclose accumulated losses of Kes 197 billion, negative equity of Kes 72 billion, and current liabilities that vastly exceed current assets. The National Executive's approval of a Kes 2.824 trillion project pipeline for an entity in this financial state without a credible, publicly available financing plan is not a matter of policy discretion; it is a matter of constitutional compliance. ## However, given the findings I have already made, the Court will not undertake a further analysis of this particular issue, nor will I make specific findings thereon. ## Mootness of the Petition ## The Respondents urged this Court not to grant the reliefs sought on the basis that the Project is approximately 39–40% complete, Ksh.4 billion has been spent, and halting the Project would cause massive economic loss. ## The Supreme Court in the 2023 SGR case held that the completion of the entire SGR project, it being 100% complete and operational, did not render constitutional questions about the project moot because those questions raised matters of public importance. If the complete operationalization of a 480-kilometre railway did not moot constitutional questions, the 39% completion of a 12.5-kilometre line manifestly cannot do so. ## The 9th Respondent's reliance on the decision of All Pay Consolidated Investment Holdings (Pty) Ltd v CEO of the South African Social Security Agency [2014] ZACC 12 is double-edged: in that case, the Constitutional Court declared the procurement contract invalid notwithstanding advanced implementation. The Court suspended the declaration of invalidity only to allow for a lawful fresh procurement; it did not uphold the unconstitutional contract on proportionality grounds. That is precisely the approach this court is inclined to take. 1. Having found, for the reasons set out above, that: (i) the use of RDLF funds for the Project prior to 27th March 2026 was unconstitutional; (ii) the 2026 Amendment Act does not retrospectively validate past violations; (iii) the Project was implemented without parliamentary appropriation in FY 2023/2024; (iv) the procurement of CRBC and APEC Consortium violated Article 227 and PPADA; (v) the Project was implemented without mandatory feasibility studies; (vi) Article 35 was violated by sustained non-disclosure; and (vii) public participation was retroactive and constitutionally defective, this court is called upon to issue remedies that uphold the Constitution and public interest. 2. The Court recognises that approximately 40% of Phase 1 of the Project has been completed. Declaring the contracts void would risk leaving an abandoned and hazardous structure in a populated residential area, fail to remediate the constitutional violations, and cause significant waste of public resources already expended. 3. This Court will follow the All Pay decision and shall uphold the preservatory orders in place to enable the project to be implemented in a way that is compliant with the Constitution and the laws in place. 4. I therefore make the following declarations that: 1. **The use of Railway Development Levy Fund (RDLF) proceeds to finance the Riruta–Ngong Commuter Metre Gauge Railway Project prior to 27th March 2026 was unconstitutional, null and void, and in violation of Articles 201(a) and (d) and 206(1) of the Constitution of Kenya and Section 24(7) of the Public Finance Management Act;** 2. **The commencement of construction of the Project and the expenditure of RDLF and other public funds on the Project without parliamentary appropriation in the Estimates of Development Expenditure for Financial Year 2023/2024 was unconstitutional, and in violation of Articles 206(1), 220(2), 221, 222, and 223 of the Constitution;** 3. **The procurement of the 9th Respondent (China Road and Bridge Corporation) as contractor and the 10th Respondent (APEC Consortium Co. Ltd) as supervisor for the Riruta–Ngong Project by direct procurement, without open competitive tendering, was unconstitutional and unlawful, and in violation of Article 227(1) of the Constitution and Sections 103(2)(d) and 137(1) and (3) of the Public Procurement and Asset Disposal Act, 2015;** 4. **The Project was implemented in violation of the mandatory requirements of the Public Finance Management (Public Investment Management) Regulations, 2022, specifically the requirements for pre-feasibility and feasibility studies prior to approval, financing, and commencement of the Project;** 5. **The refusal by the 1st to 6th Respondents to provide information on the Project between 2023 and 2026, including the defiance of this Court's mandatory production order of 19th March 2026, constituted a violation of Article 35 of the Constitution;** 6. **The public participation conducted in relation to the Riruta–Ngong Project was retroactive, inadequate, and constitutionally defective and in violation of Articles 10(2)(a), 201(a), and 232(1)(d) of the Constitution of Kenya,2010;** 7. **The procurement contracts between KRC and CRBC and between KRC and APEC Consortium arising from Orders 2 and 3 above are INVALIDATED, to enable the 1st, 2nd, 3rd, 4th and 5th RESPONDENTS to regularize the Project through a fresh, constitutionally compliant process.** 8. **The 3rd, 4th and 5th Respondents (National Executive, National Treasury, PS Transport) shall within 90 days obtain parliamentary appropriation for the Project from the National Assembly in the Supplementary Estimates of Development Expenditure;** 9. **The 1st Respondent shall within 90 days commission and complete a full pre-feasibility and feasibility study for the Project in compliance with the PIM Regulations, 2022, with the study to be made publicly available in accordance with Article 35(3) of the Constitution of Kenya,2010;** 10. **The 1st Respondent shall within 90 days conduct a fresh, transparent, open competitive tender for the continuation of the Project works (or demonstrate to this Court's satisfaction that the invalidated contracts, having been subjected to full disclosure, competitive benchmarking, and parliamentary scrutiny, are justifiable within the constitutional framework), in compliance with Article 227 of the Constitution of Kenya,2010 and PPADA, 2015;** 11. **The 1st Respondent shall within 90 days conduct genuine, timely, and meaningful public participation with KLDA, Project Affected Persons, and all relevant stakeholders in the Karen, Ngong, and corridor communities, including disclosure of the feasibility study, route alignments, financing arrangements, and procurement records; and** 12. **The conservatory orders issued on 20th January 2026 shall remain in force until the 1st Respondent demonstrates to the satisfaction of the Court full compliance with orders 9, 10 and 11 above.** 5. Given that this Petition was brought in the public interest and raises constitutional questions of significant public importance, and taking into account the principle in **Trusted Society of Human Rights Alliance & 2 Others v Attorney General [2012] eKLR** that costs in public interest constitutional litigation follow different considerations, I order that each party bear its own costs. 6. It is so ordered. **Dated** and **signed at Nairobi this 17th day of July 2026.** **Gregory Mutai** **JUDGE** **In the presence of:** Ms **Obure,** holding brief for Mr **Kanjama, SC** for the **3rd Petitioner** and **1st Interested Party;** Mr **Bernard Muchiri Muchere, (2nd Petitioner) (*pro se* litigant);** Ms **Ekesa,** forMr **Okiya Omtatah Okoiti;** Prof **Muma, SC** with **Mr Kimathi** and **Mr Ochieng** for the **9th Respondent;** Mr **Kamau Muturi,** with **Ms Sandra Kavagi (**holding brief for **Chacha Odera, SC),** for the **1st** and **2nd Respondents;** Ms **Otieno,** holding brieffor Mr **Mbarak,** for the **7th Respondent;** Ms **Mbiro,** for the **11th Respondent;** Mr **Mwangi,** holding brieffor Ms **Laurel,** for the **10th Respondent;** Mr **Thande Kuria,** for the **3rd, 4th, 5th and 6th Respondents**; and Ms **Neema Lwambia – Court Assistant**.