The government was on Friday dealt a blow after the High Court quashed the construction of the Sh12 billion Ngong-Riruta meter gauge railway.
Justice Gregory Mutai quashed the project saying it was implemented without parliamentary approval, public participation and competitive procurement process among other violations.
Noting that the project was 40 percent complete, the court however said the government can still complete the construction after regularizing all the required procedures including the procurement of the contractor, feasibility study, public participation and parliamentary approval.
“Having made the findings above, the use of the (Railway Development Levy Fund) RDLF, a project prior to 27 March 2026, was unconstitutional and the 2026 amendment does not retroactively validate past violations,” said the court.
The project was challenged by Busia Senator Okiya Omtatah and the Karen Langata District Association, who argued that it was being funded using the Railway Development Levy Fund (RDLF) and there was no public participation before the commencement.
The court noted that the project was implemented in violation of the mandatory Public Finance Management and Public Investment Regulation 2022, specifically in the requirement for feasibility studies prior to approval, compliance and compensation.
The court further faulted the Kenya Railways Corporation and the government over the refusal to provide information on the project even after being directed to make them public.
On public participation, the court ruled that the process was done retroactively and inadequate and could not therefore, cure the illegalities.
“The respondents 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 existing contracts having now been subject to full disclosure and 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,” said the court.
President William Ruto launches the Riruta-Ngong railway in December 2023. Looking on are then-Deputy President Rigathi Gachagua and then-Roads CS Kipchumba Murkomen.
Photo credit: File | Nation Media Group
The court further directed the government to within 90 days, conduct a genuine, timely and meaningful public participation with the residents association, persons affected by the project and all relevant stakeholders currently involved in corridor communities, including the disclosure of the feasibility study, route alignment, financing alignment and procurement records.
The government had defended the project arguing that the RDLF is fully integrated into the national public finance system and remains subject to parliamentary oversight, appropriation and audit.
The court heard that the enactment of the Miscellaneous Fees and Levies (Amendment) Act, 2026 merely clarified and consolidated an already existing legal framework governing the levy and did not create constitutional validity where none existed.
KRC maintained that the Riruta-Ngong commuter railway falls squarely within the objectives of the levy fund as provided for under the amended law and that the expenditure was therefore lawful.
“At every stage, the process was subject to audit, oversight and statutory controls. There is therefore no evidential basis for the allegation that the projects are hidden, irregular, or outside constitutional governance structures,” KRC said.
Mr Omtatah and the association argue that the RDLF itself is unconstitutional and has been used as a parallel treasury to finance projects outside the framework established by the Constitution.
They also contend that the Riruta-Ngong commuter railway project was implemented illegally through unconstitutional financing arrangements, procurement irregularities and without meaningful public participation.
The court said the conservatory orders issued on January 20, 2026, stopping the construction, shall remain in force for one year or until the government demonstrates compliance with directives.
