https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6992

Okoti & 2 others v Kenya Railways Corporation & 10 others (Constitutional Petition E843 of 2025) [2026] KEHC 6992 (KLR) (Constitutional and Human Rights) (15 May 2026) (Ruling) Neutral citation: [2026] KEHC 6992 (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 Okoti 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 Road And Bridges Corporation (CRBC) 9th Respondent The Apec Consortium Company Limited 10th Respondent Africa Star Railway Operation Company Limited (AFRISTAR) 11th Respondent Ruling Introduction 1.This court, per Mwamuye, J., delivered a ruling on 19th March 2026, vide which is found at paragraphs 130 and 131 as follows:-“130.From the analysis above, it is clear that the Petitioners/Applicants’ Notice of Motion Application dated 19/12/2026 must succeed on both limbs. For the avoidance of doubt, these orders on both limbs are purely facilitative, and/or preservatory and temporary. They do not determine the merits of the Petition, nor does the success of the Petitioners/Applicants’ Notice of Motion Application dated 19/12/2026 mean that the Petition of even date is predestined to succeed.131.The Respondents will have a full opportunity to defend the Project's constitutionality in the forum of interpartes hearing and determination of the substantive Petition. The impugned Project, merely halted temporarily, and for the short period of time it shall take to hear and determine the Petition, can resume if the Court ultimately upholds its legality.” 2.The court noted that where a significant public project or undertaking had been halted pending the hearing and determination of the substantive petition, it would be necessary for the petition to be heard and determined in an expedited manner. 3.With a view to the foregoing, the court went on to hold at paragraph 134 as follows:-“Therefore, after the delivery of this Ruling, the Court shall issue firm directions geared towards the expedited hearing and determination of this matter, and with a view to a judgment date on or before ninety days from the date of delivery of this Ruling.” 4.The court thus allowed the notice of motion dated 19th December 2025 in terms of prayers 2 (a), 2 (b) and 2 (c). It also confirmed the conservatory orders issued on 20th January 2026 and subsequently extended, up to the date of determination of the petition, unless otherwise discharged, vacated, varied, extended or confirmed permanently. Further, the 2nd, 3rd, 4th, 5th, and 6th respondents were ordered to produce, for inspection by the petitioners, and to file in court, certain enumerated documents within 30 days of the date of delivery of the ruling. 5.Lastly, the court held that, in the event of full or partial non-compliance with the order to produce documents, the court could, under section 112 of the Evidence Act, draw an adverse inference. 6.The ruling was delivered on 19th March 2026. As of the date of delivery of this ruling, more than 50 days (of the 90 days allotted by the court) have lapsed. The 90th day will be on 17th June 2026, 32 days or so from now. Notice of Motion dated 31st March 2026 7.Being aggrieved with the said decision, the 1st and 2nd respondents' counsel filed the notice of appeal dated 19th March 2026. On 31st March 2026, they filed a notice of motion of even date vide which they sought the following orders:-1.Spent;2.Spent;3.Pending the hearing and determination of the intended appeal, the honourable court be pleased to grant a stay of execution of the decision delivered on 19th March 2026 by Hon. Justice Bahati Mwamuye;4.That the honourable court do issue such other directions and or orders as the court may deem fit and expedient to grant; and5.That the costs of this application be provided for. 8.In the grounds in support of the motion, and also in the supporting affidavit, it was stated that the intended appeal is arguable and raises serious issues of law, including whether the judge properly applied the proper test for grant of conservatory orders; whether sufficient regard was given to the public interest in an ongoing public infrastructure project; whether the court failed to consider the 1st and 2nd Respondents’ Further Affidavit dated 13th March 2026; and whether the orders granted determined the substratum of the petition at an interlocutory stage. They averred that the contract was 40% complete at the time it was stopped and that the 1st and 2nd Respondents were exposed to substantial financial loss, demobilization of contracts, disruption of numerous contractual engagements, and exposure to contractual claims and penalties arising from the delay and suspension of works. 9.They further contended that by the time the intended appeal would be heard and determined, the contractual framework, financial arrangements, and the workforce structure underpinning the project would have been fundamentally altered, and the project may not be capable of being resumed on the same terms. 10.The 1st and 2nd respondents/applicants argued that the application was in the interest of justice, would not prejudice any party and that they had moved the court without undue delay. 11.The application was supported by the 7th, 9th and 11th Respondents. Responses by the Petitioners 12.The petitioners opposed the application by affidavits sworn by Okiya Omtatah Okoiti on 11th April 2026 and by Samora Sikalieh on 16th April 2026. In their responses, the deponents denied that the appeal would be rendered nugatory unless a stay were granted. It was stated that the threshold for granting a stay pending appeal had not been met. Written and Oral Submissions of the Parties 13.The application was canvassed before me on 30th April 2026. Written and Oral Submissions of the 1st and 2nd Respondents/Applicants 14.The written submissions of the 1st and 2nd respondents/applicants are dated 17th April 2026. They were filed together with a list and bundle of authorities. Counsel for the said parties urged that on 19th March 2026, Mwamuye J issued conservatory orders, by which he restrained the respondents from proceeding with the construction of the Ngong Riruta Railway Project pending the hearing of the Petition, and directed that certain documents be made available within 30 days. 15.It was contended that unless a stay was granted, the 1st and 2nd respondents would suffer substantial loss. Counsel averred that when the project was halted, 40% of the work had been completed. Continued suspension of work affects the contract's viability and prejudices employees. They contended that the appeal would be rendered nugatory, as by the time the work resumed, if the appeal were successful, the project would have deteriorated and be incapable of being restored. 16.They urged that the project was of great public interest and benefit. Further, it was submitted that conservatory orders were based on legislation that had since been amended. Regarding documents, it was contended that some had been supplied, while others were confidential. Written and Oral Submissions of the 7th Respondent 17.The Submissions of the 7th respondent are dated 20th April 2026. It was contended that the proposed appeal was arguable. Counsel urged that the Court's decision was based on repealed legislation. The new law was already in force, and it permitted the use of the Railway Development Levy Fund for the construction of the metre gauge railway line. It was urged that with the amendment, the substratum of the appeal had collapsed. For that reason, the 7th respondent prayed that stay orders be granted. Written and Oral Submissions of the 3rd to 6th Respondents 18.The Attorney General agreed with the applicants and prayed that the application be allowed as prayed. Written and Oral Submissions of the 9th Respondent 19.The 9th respondent, in its submissions, averred that the project was 40% complete when it was halted and that it commenced in 2023. Further, the petitioners were aware of this throughout. The project was valued at Kes.11 billion, of which Kes. 4 billion had been spent. It was urged that conservatory orders had left the workers in limbo, with their employment in jeopardy. Counsel contended that the project was intended to decongest Ngong Road and would help reduce traffic jams in Nairobi. 20.Counsel submitted that the Court did not consider the public interest. Further, conservatory orders put public funds that had already been spent in jeopardy. They too submitted that the appeal was arguable. Written and Oral Submissions of the 11th Respondent 21.Counsel for the 11th respondent also supported the application and urged that this Court be pleased to issue an order to stay the execution pending appeal. Written and Oral Submissions of the Petitioners/Respondents Written and Oral Submissions for the 1st & 2nd Petitioner/Respondents 22.The 1st & 2nd petitioners/respondents denied that the project was 40% complete. They contended that there was no evidence to support that claim. It was submitted that the petition was premised on a breach of Article 206 of the Constitution. They urged that the new legislation did not cure the constitutional breach but rather amplified it. 23.It was urged that no case had been made for the issuance of conservatory orders. In their view, the appeal was not arguable. The 1st and 2nd petitioners/respondents submitted that, if the application were allowed, the petition could be rendered nugatory, as the respondents could complete the project. It was denied that workers would be prejudiced. Written and Oral Submissions of the 3rd Petitioner/Respondent and the 1st Interested Party 24.The 3rd petitioner/respondent and the 1st interested party relied on written submissions dated 28th April 2026 and the list and bundle of documents. It was urged that a similar application was filed at the Court of Appeal and wasn’t allowed. The 3rd petitioner/respondent saw in the said conduct an abuse of the Court process. 25.It was urged that the application did not meet the threshold for the grant of conservatory orders under Order 42 Rule 6 of the Civil Procedure Rules. They contended that the argument that a substantial amount of money had been spent was raised before the Court. In Mwamuye J’s finding, no amount of spending could sanitize an illegality. 26.Counsel further submitted that the respondents hadn’t provided security for the due performance of the decree and that, for that reason, stay orders shouldn’t be issued. It was further contended that, notwithstanding the orders of the Court, construction had proceeded. Responses by the 1st and 2nd Respondents/Applicants 27.It was denied that the applicants had disobeyed Court orders. The applicants also denied that the Court had found constitutional violations in its ruling. It was reiterated that the appeal was arguable. Counsel submitted that Parliament wasn’t precluded from amending the law. Lastly, it was urged that the public interest favoured the issuance of conservatory orders. Analysis and Determination 28.I have considered the application, the responses hereto, as well as the written and oral submissions of the parties. The issue for my determination is whether the conservatory orders issued by Mwamuye, J, should be stayed. 29.To determine this question, my first port of call is Order 42 Rule 6 (2) of the Civil Procedure Rules, which provides that:“No order for stay of execution shall be made under sub-rule (1) unless:-a.The court is satisfied that a substantial loss may result to the applicant unless the order is made;b.The application has been made without unreasonable delay; andc.Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him as has been given by the applicant.” 30.An order staying execution of a ruling or a judgment is made by the court in exercise of judicial discretion. Like with all discretion, it is granted (or denied) judiciously, upon reason and not on whim or caprice, on the basis of the 3-point test set out in the Order 42 Rule 6. 31.What then is substantial loss? In the case of Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] KECA 94 (KLR), Platt, JA stated that:-“It is usually a good rule to see if order XLI rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms is the cornerstone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence, it is difficult to see why the respondents should be kept out of their money.” 32.Similarly, in RWW v EKW [2019] KEHC 6523 (KLR), it was held that:“8.The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.” 33.In the case of James Wangalwa & Another V Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) the Court was“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.”The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.” 34.From these decisions, it is clear that substantial loss is the kind of loss that may render the appeal nugatory, possibly denying the successful appellant the fruits of a successful appeal. 35.I have anxiously considered the application, the responses thereto and the ruling of my brother. I note that the orders that he issued were preservatory in nature. In addition, he issued orders for the production of documents within 30 days, which period has already passed. Noting the importance of the matter, the learned Judge cautioned himself that his decision was made on a prima facie basis and did not mean that the court had made final findings. Lastly, he stated categorically that the judgment would have to be delivered within 90 days of 19th March 2026, i.e., by 17th June 2026. 36.Taking the foregoing into account, I am unable to accept the respondents/applicants' assertion that they will suffer substantial loss unless a stay of execution is granted. The work has been put on hold pending a determination of the project's constitutionality. It can resume if the project is found to be in consonance with the Constitution. In my view, the interests of justice will be better served by the conclusion of this case without undue delay, as contemplated by his lordship. 37.Although it has been argued that unless a stay is granted, the nature of the contract would be affected and that the employees would be prejudiced, I am not persuaded that that is the case. The project has been on hold for 2 months, and another month to conclude this case is unlikely to be catastrophic for them. 38.I agree with the 1st and 2nd respondents/applicants' contention that the time they took to file the application was not inordinate. In my view, they acted with sufficient diligence. The delay, if one was so persuaded, was neither prolonged nor inexcusable (Ivita v Kyumbu [1984] KLR 441). 39.The 1st and 2nd respondents/applicants have expressed a willingness to be bound by whatever orders this court issues as a condition for the grant of stay pending appeal. That to me is sufficient to fulfil the third condition for the grant of a stay pending appeal. Final Orders of the Court 40.Although the 1st and 2nd respondents/applicants have met 2 of the 3 conditions for the grant of a stay, the application is ultimately unsuccessful. The 3 conditions are, as they say, conjunctive, not disjunctive; they must all be present for the order to issue. In this case, I am not persuaded that the 1st and 2nd respondents/applicants will suffer substantial loss. That being the case, the application fails. The same is dismissed. Costs shall await the outcome of the petition. 41.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.