Court halts construction of Sh11.5b railway project, orders fresh tender

President William Ruto's administration has suffered a major legal setback after the High Court declared the ongoing construction of Sh11.5 billion Riruta-Ngong Commuter Meter Gauge Railway Project unconstitutional.

Justice Gregory Mutai faulted the government over the project's funding, procurement and implementation, ruling that it violated multiple provisions of the Constitution by proceeding without parliamentary approval, mandatory feasibility studies, lawful procurement and meaningful public participation.

The Judge also found that use of the Railway Development Levy Fund (RDLF) to finance the project before March 27, 2026 was unconstitutional and void in violation of Articles 201(a) and 206(1) of the Constitution.

The petition was filed by Busia Senator Okiya Omtatah alongside activists Bernard Muchiri Muchere and Naomi Nyakerario Misati, who challenged the legality of the project, arguing that it had been approved and financed without parliamentary appropriation, transparency or adequate public participation.

Justice Mutai agreed, holding that the commencement of construction and expenditure of public funds on the project during the 2023/24 financial year without parliamentary appropriation was equally unconstitutional.

The judge also found that the direct procurement of China Road and Bridge Corporation (CRBC) and the APEC Consortium as contractor and supervisor, without an open and competitive tendering process, contravened Article 227 of the Constitution and the Public Procurement and Asset Disposal Act.

He further ruled that the project was implemented in breach of the Public Investment Management Regulations after the government failed to undertake the mandatory pre-feasibility and feasibility studies before approving and commencing the railway project.

On public participation, the judge held that consultations held in January and April 2024 came too late, after the railway contract had been awarded in September 2022, the project was commissioned in December 2023 and construction commenced in January 2024.

He said the process was retroactive, inadequate and constitutionally defective, noting that the environmental licence was not issued until September 2024 and that no alternative routes were disclosed to affected communities.

"The public participation conducted in relation to the  Ngong-Riruta project was retroactive, inadequate and constitutionally defective since consultations with affected communities were conducted only after the project had already been commissioned and construction had begun ," the judge ruled.

 Justice Mutai also observed that the environmental licence was not issued until September 19, 2024 and that no alternative routes were disclosed to affected communities before implementation.

Justice Mutai also criticised the government for failing to comply with a mandatory court order issued on March 19, 2026 directing them to produce feasibility studies, procurement documents, financing agreements, environmental assessments and other key project records.

Invoking Section 112 of the Evidence Act, the judge drew adverse inferences against the State, concluding that the procurement process was irregular, parliamentary approval had not been obtained and crucial financing documents had been withheld from both the court and the public.

The court dismissed objections to documents relied upon by the petitioners, holding that Auditor-General reports, Kenya Gazette notices, Appropriation Acts and Kenya Railways' audited financial statements were public documents and therefore admissible in evidence.

Despite noting that approximately 40 per cent of the project has already been completed, the court declined to allow the implementation to continue in its current form. 

Instead, Justice Mutai invalidated the procurement contracts between Kenya Railways Corporation, China Road and Bridge Corporation (CRBC) and APEC Consortium to pave the way for a constitutionally compliant process.

 "The procurement contract between KRC, CRBC and APEC Consortium... is hereby invalidated to enable the respondents to regularise the project through a fresh constitutionally compliant process," the court ordered.

The National Executive, the National Treasury and the Principal Secretary for Transport were directed to obtain parliamentary approval for the project within 90 days through supplementary development estimates.

The court also ordered Kenya Railways to undertake a comprehensive feasibility study, conduct a fresh and competitive procurement process or justify the existing contracts, and carry out genuine public participation involving project-affected communities within the same period.

Further, conservatory orders issued earlier in the proceedings will remain in force for one year or until the government demonstrates compliance with the court's directives.