1. The Originating Motion herein, dated 8th April 2026, seeks 6 principal orders, being a declaration that the failure, by the 1st respondent to investigate or prefer charges of manslaughter against the 4th and 5th respondents, over the Maai-Mahiu flash floods of 28th April 2024, violated the right to fair administrative action, and discriminated against the applicants and the victims; an order to compel the 1st and 3rd respondents to collect evidence from the applicants and other victims, and to prosecute the 4th and 5th respondents, or their officers, within 30 days; leave be given to the applicants, to initiate private prosecution, in the event the 1st and 3rd respondents fail to act within 30 days, of an order being given herein, for them to investigate the claims and to prosecute the 4th and 5th respondents; an order to compel the 2nd respondent to furnish and publish the report of the board of the 5th respondent, upon inquiry into the accidents that led to the Maai-Mahiu floods of 2020 and 2024; an order to compel the 4th, 5th and 6th respondents to supply certain information to the applicants; and an order for compensation, to the tune of Kshs. 500,000.00, to each of the 5 petitioner associations. There is also a claim for costs.
2. The grounds, upon which the originating motion is premised, are set out on the face of the application. It is averred that on 29th April 2024 flash floods swept off people and property in several villages within the Maai-Mahiu area of Naivasha, Nakuru; the floods arose from a burst of a railway tunnel, releasing accumulated flood waters into the villages below; the said tunnel ought to have been under 24-hour surveillance, given the frequency of heavy rainfall in the area, based on rules 234 and 235 of the General Rules of the Kenya Railways of 1984; the 4th and 5th respondents failed to avert the danger, by neglect and lack of duty of care; the negligence and breach of duty of care led to deaths, attributable to the 4th respondent, for which he should be held criminally liable, either for manslaughter, under section 202 of the Penal Code, Cap 63, Laws of Kenya, or the misdemeanours defined in sections 243 and 244 of the Penal Code; the respondents had failed to act, despite notices being issued to them; there was selective and discriminatory conduct, with respect to arrest and prosecution, when the Solai Dam Tragedy of 2018 is taken into account; reconstruction of the damaged infrastructure was undertaken, through an irregular and clandestine procurement, done in 2025, among others.
3. The factual background to the matter is set out in an affidavit of Mr. Bernard Kamau, sworn on 8th April 2026, which largely regurgitates the grounds on the face of the application. The principal importance of the affidavit is the documents that it places on record, by way of annextures. The first annexture is an affidavit, by an employee of the 5th respondent, detailing the circumstances surrounding the occurrence of the flash floods on 29th April 2024, which affidavit was filed in Naivasha ELC No. E001 of 2025. There is a bundle of 3 photographs, providing a pictorial of the loss and damage to the railway. There is a letter, dated 25th April 2025, from National Environmental Management Authority, acknowledging receipt of an environment impact assessment report. There is a copy of the General Rules of the Kenya Railways, 1984, christened the Locomotion Bible. There is a bundle of letters, from the Senior Chief of Maai-Mahiu Location, all dated 12th February 2025, with respect to those who died in the said flash floods. There is a ruling, of the Court of Appeal, in the matter of the Solai Dam Tragedy, in Nakuru Criminal Appeal (Application) No. 2 of 2020. There is also a bundle of correspondence between the Advocates for the applicants and the 2nd, 5th and 6th respondents, and the Commission on Administrative Justice...
4. The originating motion, together with a mention notice, was served on the 6 respondents and the interested party. An affidavit of service was filed, dated 30th April 2026. A copy of the face of the originating motion and of the mention notice, are attached, to evidence receipt of the papers by the parties who were served.
5. The parties served have filed responses, except for the interested party.
6. The 1st respondent filed grounds of opposition, dated 4th May 2026. Its grounds revolve around the application being premature, for no investigations file has been forwarded to it for consideration of prosecution; the 1st respondent not having a mandate to investigate; the 1st respondent being constitutionally mandated to independently review evidence and determine whether to proffer charges; and the doctrine of exhaustion being violated.
7. In addition to the grounds of opposition, the 1st respondent has also filed a replying affidavit, by Mr. Remyngtone Mwandawiro, sworn on 29th May 2026. It is averred that the letters, dated 11th November 2024 and 18th November 2024, written by the applicants, addressed to the 1st respondent, were not attached to the supporting affidavit. It is stated that the applicants did file a complaint with the 3rd respondent, who is the proper person or office constitutionally and statutorily mandated to receive complaints relating to criminal matters, and to investigate those complaints, and that the role of the 1st respondent is limited to review of investigation files, which kicks in only upon completion of investigations. It is further averred that charges can only be proffered upon there being sufficient evidence, with a realistic prospect of a conviction. It is argued that it would be contrary to public interest, and the interest of administration of justice, to institute criminal proceedings in the manner sought by the applicants, without review of the investigation file.
8. The 2nd respondent has also filed grounds of opposition, dated 4th May 2026, raising a single issue, that the application offends the mandatory provisions of section 9(2)(4) of the Fair Administrative Action Act, Cap 7C, Laws of Kenya.
9. The 3rd respondent has filed a replying affidavit, sworn on 12th June 2026, by No. 77258, Police Corporal Peter Orwa, an investigator, attached to the Directorate of Criminal Investigations, at Naivasha. He avers that their office was involved in investigating the matter, the same having been reported by the area Assistant Chief, at the Maai-Mahiu Police Station. A rescue operation was mounted, where 76 bodies were recovered. The police reached out to the National Environmental Management Authority office at Naivasha, the 5th respondent and the Disaster Management County Government of Nakuru, but these entities did not respond to the police enquiries, neither did The Water Resources Authority and the National Water Harvesting and Storage Authority. Officers from the Directorate of Criminal Investigations at Naivasha, nevertheless, visited the scene, took pictures and documented it generally. Bodies were identified, and statements recorded from family members, postmortems were conducted and the bodies released for burial. Investigations established that the floods were caused by rainwater, which had accumulated near the railway line, before sweeping downstream, wreaking havoc in the process. It is averred that the police service has not failed in its duty, disclosing that an inquest file was opened, being Public Inquest File No. 1 of 2024, which is undergoing final administrative processes, after which it shall be forwarded to the 1st respondent, for independent review, and further action. It is averred that a complaint against the police should have been processed under section 24 of the Independent Policing Oversight Authority Act, Cap. 86, Laws of Kenya, arguing that that process should have been exhausted, prior to judicial review proceedings being mounted.
10. 3 documents are annexed to that affidavit, being a letter written by the Directorate of Criminal Investigations, Naivasha office, to the National Environmental Management Authority, Naivasha Sub-County Office, dated 6th June 2024; a letter written by the Directorate of Criminal Investigations, Naivasha office, to the 5th respondent, dated 7th June 2024, calling for various reports; and a letter addressed to the Nakuru County Government Disaster Management Authority, by the Directorate of Criminal Investigations, Naivasha office, dated 7th June 2024, calling for a report on the incident.
11. The 4th and 5th respondents have filed a replying affidavit, sworn on 15th June 2026, by Mr. Stanley Gitari, the Company Secretary and General Manager Legal Services of the 5th respondent. The flash floods are conceded, but liability is denied. It is averred that no evidence has been tabled, to demonstrate that any complaint had been lodged against the 1st and 3rd respondents to warrant any administrative action or intervention being sought. It is argued that the correspondence attached did not constitute complaints, requesting for investigations, or to evidence wrongdoing on the part of the respondents. It is asserted that no legal or factual basis has been established for authority to mount a private prosecution or to compel prosecution of the 4th and 5th respondents. It is asserted that the 4th and 5th respondents have no control over the conduct of investigations and the mounting of a prosecution by the 1st and 3rd respondents. It is averred that personal criminal liability cannot be attributed to the 4th respondent as the chief executive officer of the 5th respondent, and no specific acts of commission or omission, on the part of the 4th respondent, have been pointed out.
12. It is argued that the issues raised by the applicants are contested, and are not suitable for litigation and determination in judicial review proceedings, for they would require the presentation of oral evidence, which ought to be tested in open court. It is argued that a foundation has not been laid, for the mounting of a private prosecution. It is pointed out that there is a pending claim, in Naivasha HC Petition No. E003 of 2025, where compensation is being sought, and there could be abuse of process, in the filing and prosecution of these judicial review proceedings. On access to information, it is averred that that issue was before the Commission on Administrative Justice, and a determination was rendered, on 13th November 2025, directing disclosure, subject to the applicable statutory limitations. It is averred that the information sought was disclosed. The doctrines of exhaustion and constitutional avoidance are pleaded.
13. In addition to filing a replying affidavit, the 4th and 5th respondents have also filed a motion, dated 23rd May 2026, principally seeking the striking out or dismissal of the application, dated 8th April 2026. That application is founded on the affidavit of Mr. Gitari, the deponent of the replying affidavit, sworn on 15th June 2026. The facts deposed to and the grounds upon which the application is founded are a replica of the contents and substance of the affidavit of 15th June 2026. The affidavit of 15th June 2026 is a duplication of the application, dated 23rd May 2026, and its supporting affidavit. There was really no need for the 4th and 5th respondents to have filed the replying affidavit, for they could have simply relied on the averments made in the earlier filing. Alternatively, they ought to have withdrawn the application, before filing the replying affidavit. These multiple filings serve no purpose, other than crowding the court record with duplicitous documents. Be that as it may.
14. The 6th respondent has filed a replying affidavit, sworn by Mr. Peter K. Ndung’u, one of its officers, on 6th June 2026. It is averred that the 6th respondent is mandated, by the Public Procurement and Asset Disposal Act, Cap. 412C, Laws of Kenya, to conduct investigations and act on complaints, received on procurement and asset disposal proceedings. Receipt of a complaint from the applicants, vide a letter dated 7th May 2025, is acknowledged, which letter had sought investigations into the tendering process by the 5th respondent, for the reconstruction of the concrete and soil embankment tunnel bridge at Maai-Mahiu, after the flood disaster. It is averred that receipt of that letter was acknowledged, and that the 6th respondent engaged the 5th respondent over the matter. It is averred that the 5th respondent responded to the enquiries by the 6th respondent, from which the 6th respondent concluded that the 5th respondent had complied substantially with the tendering law and process. It is asserted that the 6th respondent had duly complied, by investigating the matter, and sharing the outcome of its investigations with the applicants.
15. Attached to that response are various documents. There is a copy of the letter the applicants wrote to the 6th respondent, dated 7th May 2025. There is a copy of a letter from the Commission on Administrative Justice, dated 9th June 2025, on a request for information, by the applicants, relating to the tendering process undertaken by the 5th respondent. There is the letter written by the 6th respondent, on 24th June 2025, acknowledging receipt of that by the applicants, dated 7th May 2025. There is a letter, dated 8th June 2025, by the 6th respondent, addressing the Commission on Administrative Justice, informing that it had received a complaint from the applicants, and that it had commenced investigations on it. There is a letter from the 5th respondent, dated 12th September 2025, to the 6th respondent, explaining about the tendering process that it had undertaken. There is a letter, dated 17th September 2025, to the 6th respondent, from the applicants, following up on their letter of 7th May 2025. There is another letter, of 3rd November 2025, from the applicants, to the 6th respondent, giving notice of an intention to sue. The other letter is dated 5th December 2025, from the 6th respondent, advising that the tendering process by the 5th respondent had complied with the law. There is also a letter of 28th August 2025, from the 6th respondent, to the 4th respondent, pointing out some non-compliances with the Public Procurement and Asset Disposal Act, by the 5th respondent, regarding the tendering process. There is a letter, dated 15th July 2025, from the 6th respondent, advising that the court had stopped the reconstruction process, and also giving a general background to the disaster.
16. There is a rejoinder by the applicants, by way of an affidavit by Mr. Kamau, the 84th applicant, sworn on 10th June 2026, in response to the grounds of opposition by the 1st and 2nd respondents, both of which are dated 4th May 2026. He avers that the applicants wrote to the 1st respondent, requesting him to carry out investigations and to prosecute the responsible officers of the 5th respondent. It is also averred that a similar letter was written to the 3rd respondent, requesting that investigations be carried out, into the criminal responsibility and liability of the 4th respondent and other responsible officers of the 5th respondent. Other letters were also allegedly addressed to the 4th, 5th and 6th respondents, requesting for procurement information, relating to the re-construction of the Dark Tunnel. It is averred that another letter was done to the Commission on Administrative Justice, with respect to failure of the 5th respondent, to supply relevant information, and the ombudsman subsequently issued a formal order, on 13th November 2025. It is averred that despite that, none of the respondents acted on the said letters, for there was no response to either of them.
17. It is averred that the 1st respondent has admitted, in its grounds of opposition, that no investigation file was ever forwarded to it, which is the very wrong that the applicants are complaining about, and for which they could not be held responsible for, for it is the failure of the 3rd respondent to complete investigations, and forward the file to the 1st respondent, that has instigated these proceedings. It is averred that all what the applicants seek is for the 1st respondents to receive the investigation file, review the evidence and make a decision. It is asserted that the applicants are not seeking to have the 1st respondent to proffer specific criminal charges, but rather to make a decision on the matter, one way or the other. It is averred that the 1st respondent has not filed any evidence, by way of an affidavit, with respect to the steps taken, towards investigations and prosecution, regarding the Maai-Mahiu Tragedy, and no explanations have been offered for not pressing for investigations to be carried out.
18. On the matter of exhaustion of other avenues for redress before court action, it is averred that after the respondents failed to act on the requests by the applicants, the Commission on Administrative Justice was approached, and it intervened, but to no avail. It is averred that there was no avenue after that, that could be pursued, save the court action. It is submitted that the application is not time-barred, under section 9(2) of the Fair Administrative Action Act, as the wrong complained of was not a single administrative act on a fixed identifiable date, for it is an ongoing and continuous failure by the respondents to perform their constitutional and statutory duties. It is further averred that there is no prescribed internal review procedure, under section 9(4) of the Fair Administrative Action Act, applicable to failure by the 1st and 3rd respondents to investigate mass murder.
19. Several documents are attached to that affidavit. There is a letter addressed to the 1st respondent, dated 11th November 2024, calling for the arrest of the 4th respondent, for breach of the common law duty of care, owed to the residents of the areas affected by that flood disaster in Maai-Mahiu, pointing out the various statutory provisions which are relevant in the circumstances, and reminding him about how his office had acted swiftly, when a similar disaster struck in Solai, Nakuru, in 2018. There is also a copy of the letter that the applicants wrote to the 6th respondent, on 7th May 2025, asking for information, and urging for conduct of investigations. There is a copy of the order, by the Commission on Administrative Justice, dated 13th November 2025, ordering the 4th respondent to facilitate the information that the applicants had sought, by their letter of 7th May 2025, and directing publication of information relating to reconstruction of bridges in the affected areas. There is a copy of another letter, dated 5th December 2025, from the 6th respondent, providing some information on the procurement process, relating to the reconstruction of the bridges, and explaining that the procurement process complied with the law.
20. There is a notice, in a letter, dated 18th November 2025, to sue, addressed to the 1st respondent. There is a copy of a letter, dated 17th September 2025, addressed to the 6th respondent, being a follow up to the letter of 7th May 2025, which was subsequently responded to vide the letter of 5th December 2025. There is another letter, dated 7th May 2025, addressed to the National Environment Management Authority and the Ethics and Anti-Corruption Commission, on public participation that had allegedly been conducted in the affected areas. There is another letter, dated 12th November 2025, being a notice to sue, addressed to the Principal Secretary, the National Treasury and Economic Planning. There is another notice of intention to sue, dated 18th November 2025, addressed to the 3rd respondent. There are also copies of affidavits, by the 84th applicant, sworn on 8th April 2026, and filed herein, and another, sworn by Eng. Shimrone Munga, on 28th April 2025, and filed in Naivasha ELC Petition No. E001 of 2025. The rest of the material are documents that are attached to the affidavit of Mr. Kamau, of 8th April 2026, filed herein.
21. Mr. Kamau has sworn another affidavit, on 10th June 2026, in reply to the application by the 4th and 5th respondents, dated 23rd May 2026, which seeks the dismissal and setting aside of the instant proceedings. The said affidavit responds to the issues raised in that application, on jurisdiction under Article 157(10) of the Constitution and separation of powers; res judicata and the Environment and Land Court judgement in ELCPET/E001/2025; sub judice and Naivasha ELC Constitutional Petition No. E003/2025 and Nakuru HC E025/2024; access to information; the doctrine of exhaustion; collateral attack on determinations of competent courts; factual issues unsuitable for judicial review and lack of coherent constitutional basis; frivolity, vexation and abuse of process; and lack of merit, fatal defects and lack of reasonable cause.
22. He has attached to that affidavit documents to show that he had sought information on the matter from the relevant entities, and the Commission on Administrative Justice had ordered facilitation of that access to information. There is also a copy of the judgement delivered in Naivasha ELC ELCPET/E001/2025.
23. The parties have filed written submissions, to canvass the originating motion.
24. I have not come across written submissions by the applicant.
25. The written submissions, by the 1st respondent, are dated 12th May 2026. They address 3 issues, around the doctrines of ripeness and exhaustion; the extent of merit review in judicial review proceedings; and whether the threshold for grant of the orders set has been met. Section 88 of the Criminal Procedure Code, Cap 75, Laws of Kenya; section 9(2) of the Fair Administrative Action Act; Legal-Aid South Africa Mzoxolo Magidiwana and President of the Supreme Court of Kenya & another [2016]; Pauline Raget Adhiambo Agot vs. Director of Public Prosecutions & 3 others [2010] Petition No. 446 of 2015; John Florence Maritime Services Limited & another vs. Cabinet Secretary Transport and Infrastructure & 3 others [2021] KESC 39 (KLR); Suchan Investments Limited vs. Ministry of National Heritage and Culture & 3 others [2016] eKLR; Saisi & 7 others vs. Director of Public Prosecutions & 2 others [2023] KESC 6 (KLR); Dr. Alfred N. Mutua vs. The Ethics and Anti-Corruption Commission & others Misc. Application No. 31 of 2016; Makokha vs. Netia & another [2023] KEHC 22452 (KLR) and Republic Through Agot vs. Norman & 18 others [2024] KEHC 8797 (KLR) are cited.
26. The 2nd and 3rd respondents submit on only 1 issue, in their written submissions, dated 15th June 2026, relating to whether the application offends the doctrine of exhaustion. Section 9(4) of the Fair Administrative Action Act, and the decisions in Speaker of the National Assembly vs. Karume [1992] KLR 21, Geoffrey Muthinja Kabiru & 2 others vs. Samuel Munga Henry & 1756 others, In the Matter of Mui Coal Basin Local Community and Marimba Investments vs. Director General of the National Transport and Safety Authority & 2 others [2018] eKLR are cited.
27. The submissions, by the 4th and 5th respondents, are dated 15th June 2026. The 4th and 5th respondents identify 5 issues for determination, around whether the 1st and 3rd respondents can be complied by way of judicial review, to investigate and institute criminal proceedings; whether basis has been established, for attributing personal criminal liability on the 4th respondent; whether the prayer for leave to mount a private prosecution is premature; whether the prayer for access to information is properly before the court; and whether the prayer for aggravated damages and the proceedings are generally barred by the doctrines of res judicata, sub judice and abuse of court process.
28. Praxidis Namoni Saisi & 7 others vs. Director of Public Prosecutions & 2 others [2023] KESC 6 (KLR); Dande & 3 others vs. Inspector General, National Police service & 5 others [2023] KESC 40 (KLR); Speaker of the National Assembly vs. Karume [1992] KLR 21; Okiya Omtata Okoiti vs. Communications Commission of Kenya & others; Floriculture International Limited & others vs. Attorney General Civil Appeal No. 114 of 1997 and Independent Electoral & Boundaries Commission & 5 others vs. Maina Kiai, are cited.
29. The 6th respondent has also filed written submissions, dated 16th June 2025. It addresses 3 issues, around the 6th respondent having discharged its statutory mandate under the Public Procurement and Asset Disposal Act, whether violation of the rights of the applicants by the 6th respondent has been demonstrated, and whether the orders sought could be made. It cites only 1 decision, Annarita Karimi Njeru vs. Republic [1979] KLR 154 [1979] eKLR.
30. These proceedings arise from the Maai-Mahiu floods, after the water washed through a blocked tunnel, and rushed downstream, and in the process damaged property and caused deaths. The pleadings are not clear on the number of the dead. I have, however, seen letters from the Senior Chief of Maii-Mahiu Location, relating to deaths of 55 individuals. The police mention that 76 bodies were recovered. These proceedings seek to have accountability for the said deaths, by the 4th and 5th respondents, who had control of the railway facilities, from which the flood waters came. The application targets the 1st, 2nd and 3rd respondents, the State entities and offices that ought to have sought that accountability from the 4th and 5th respondents, by way of criminal prosecution, on the basis that the deadly flooding arose from criminal negligence and breach of duty of care, on the part of the 5th respondent, who owned the property from which the waters flowed, and the 4th respondent, who was the Chief Executive Officer of the 5th respondent at the material time.
31. The complaint is that, despite the loss of so many lives, in that incident, in circumstances that were preventable, if those in charge of the property or asset, from which the waters emerged, had taken appropriate steps, to prevent accumulation of water on the embankment or its breach by the water, the tragedy would have been averted, yet no one has been called upon to account, by way of criminal proceedings being initiated, against those who should be criminally responsible for that loss. It is argued that the 3rd respondent ought to have conducted investigations into the incident, to collect evidence, with a view to assess whether there was any element of criminality, on the part of those who were in control of the assets where the waters came from, that is to say the 4th and 5th respondents. It is also argued that the 1st respondent ought to have prosecuted the 4th and 5th respondents, upon investigations being completed.
32. The applicants make reference to the Solai Dam Disaster of 2018, where water breached an irrigation dam, after heavy rains, swept downstream, and killed people and destroyed property in its wake. Following that 2018 incident, the 1st and 3rd respondents moved with alacrity, investigated the incident, apprehended the owners and managers of the property in question, and prosecuted them, in Naivasha MCCRC No. 977 of 2018 Republic vs. Perry Mansukh Kansagara & 8 others. A copy of a ruling of the Court of Appeal, in Perry Mansukh Kansagara & 3 others vs. Director of Public Prosecutions [2021] KECA 941 (KLR), which arose from that prosecution, is attached. The applicants argue that the State has been selective and discriminative, in the manner that it has handled the Maai-Mahiu incident, when contrasted with what happened after the Solai Dam incident.
33. The 3rd respondent has, through its investigating officer, confirmed that the incident was reported to the police, a rescue operation was mounted, investigations were conducted, an inquest file was opened, and the inquest is ongoing, in Public Inquest File No. 1 of 2024, after which the file shall be forwarded to the 1st respondent, for review and further action. The 3rd respondent indicates that the police reached out to various State entities, seeking information to enrich the investigations, but received no cooperation. The State entities in question, which did not cooperate with the police, in its investigations, are identified as the Naivasha National Environmental Management Authority office, the 5th respondent, the Disaster Management office within the County Government of Nakuru, the Water Resources Authority and the National Water Harvesting and Storage Authority.
34. The 1st respondent has reacted to the matter by raising 3 principal technical arguments. The first is that it is not its mandate to conduct investigations into such incidents, and that it would only get involved after the investigation file has been forwarded to it, by the 3rd respondent. The second is that the matter is res judicata and sub judice. The third argument is that the applicants have not exhausted other avenues for redress, hence the doctrines of ripeness and exhaustion should apply to defeat the application.
35. For the purposes of these proceedings, the principal respondents are really the 1st and 3rd respondents. The 2nd respondent is named as such in her capacity as the universal Advocate for the State. The 4th, 5th and 6th respondents are peripheral parties, who ideally, should have been named as interested parties. The principal complaint is about the failure by the 1st respondent to initiate criminal proceedings against the 4th and 5th respondents.
36. It would appear, from the affidavit filed on behalf of the 3rd respondent, that the police did, indeed, carry out some investigations, which formed the basis for commencement of inquest proceedings. There is frustration expressed, that some State agencies and entities, with information that would have aided the investigations, frustrated the process, by failing to cooperate. Among those State actors is the 5th respondent.
37. However, although th
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2. The grounds, upon which the originating motion is premised, are set out on the face of the application. It is averred that on 29th April 2024 flash floods swept off people and property in several villages within the Maai-Mahiu area of Naivasha, Nakuru; the floods arose from a burst of a railway tunnel, releasing accumulated flood waters into the villages below; the said tunnel ought to have been under 24-hour surveillance, given the frequency of heavy rainfall in the area, based on rules 234 and 235 of the General Rules of the Kenya Railways of 1984; the 4th and 5th respondents failed to avert the danger, by neglect and lack of duty of care; the negligence and breach of duty of care led to deaths, attributable to the 4th respondent, for which he should be held criminally liable, either for manslaughter, under section 202 of the Penal Code, Cap 63, Laws of Kenya, or the misdemeanours defined in sections 243 and 244 of the Penal Code; the respondents had failed to act, despite notices being issued to them; there was selective and discriminatory conduct, with respect to arrest and prosecution, when the Solai Dam Tragedy of 2018 is taken into account; reconstruction of the damaged infrastructure was undertaken, through an irregular and clandestine procurement, done in 2025, among others.
3. The factual background to the matter is set out in an affidavit of Mr. Bernard Kamau, sworn on 8th April 2026, which largely regurgitates the grounds on the face of the application. The principal importance of the affidavit is the documents that it places on record, by way of annextures. The first annexture is an affidavit, by an employee of the 5th respondent, detailing the circumstances surrounding the occurrence of the flash floods on 29th April 2024, which affidavit was filed in Naivasha ELC No. E001 of 2025. There is a bundle of 3 photographs, providing a pictorial of the loss and damage to the railway. There is a letter, dated 25th April 2025, from National Environmental Management Authority, acknowledging receipt of an environment impact assessment report. There is a copy of the General Rules of the Kenya Railways, 1984, christened the Locomotion Bible. There is a bundle of letters, from the Senior Chief of Maai-Mahiu Location, all dated 12th February 2025, with respect to those who died in the said flash floods. There is a ruling, of the Court of Appeal, in the matter of the Solai Dam Tragedy, in Nakuru Criminal Appeal (Application) No. 2 of 2020. There is also a bundle of correspondence between the Advocates for the applicants and the 2nd, 5th and 6th respondents, and the Commission on Administrative Justice...
4. The originating motion, together with a mention notice, was served on the 6 respondents and the interested party. An affidavit of service was filed, dated 30th April 2026. A copy of the face of the originating motion and of the mention notice, are attached, to evidence receipt of the papers by the parties who were served.
5. The parties served have filed responses, except for the interested party.
6. The 1st respondent filed grounds of opposition, dated 4th May 2026. Its grounds revolve around the application being premature, for no investigations file has been forwarded to it for consideration of prosecution; the 1st respondent not having a mandate to investigate; the 1st respondent being constitutionally mandated to independently review evidence and determine whether to proffer charges; and the doctrine of exhaustion being violated.
7. In addition to the grounds of opposition, the 1st respondent has also filed a replying affidavit, by Mr. Remyngtone Mwandawiro, sworn on 29th May 2026. It is averred that the letters, dated 11th November 2024 and 18th November 2024, written by the applicants, addressed to the 1st respondent, were not attached to the supporting affidavit. It is stated that the applicants did file a complaint with the 3rd respondent, who is the proper person or office constitutionally and statutorily mandated to receive complaints relating to criminal matters, and to investigate those complaints, and that the role of the 1st respondent is limited to review of investigation files, which kicks in only upon completion of investigations. It is further averred that charges can only be proffered upon there being sufficient evidence, with a realistic prospect of a conviction. It is argued that it would be contrary to public interest, and the interest of administration of justice, to institute criminal proceedings in the manner sought by the applicants, without review of the investigation file.
8. The 2nd respondent has also filed grounds of opposition, dated 4th May 2026, raising a single issue, that the application offends the mandatory provisions of section 9(2)(4) of the Fair Administrative Action Act, Cap 7C, Laws of Kenya.
9. The 3rd respondent has filed a replying affidavit, sworn on 12th June 2026, by No. 77258, Police Corporal Peter Orwa, an investigator, attached to the Directorate of Criminal Investigations, at Naivasha. He avers that their office was involved in investigating the matter, the same having been reported by the area Assistant Chief, at the Maai-Mahiu Police Station. A rescue operation was mounted, where 76 bodies were recovered. The police reached out to the National Environmental Management Authority office at Naivasha, the 5th respondent and the Disaster Management County Government of Nakuru, but these entities did not respond to the police enquiries, neither did The Water Resources Authority and the National Water Harvesting and Storage Authority. Officers from the Directorate of Criminal Investigations at Naivasha, nevertheless, visited the scene, took pictures and documented it generally. Bodies were identified, and statements recorded from family members, postmortems were conducted and the bodies released for burial. Investigations established that the floods were caused by rainwater, which had accumulated near the railway line, before sweeping downstream, wreaking havoc in the process. It is averred that the police service has not failed in its duty, disclosing that an inquest file was opened, being Public Inquest File No. 1 of 2024, which is undergoing final administrative processes, after which it shall be forwarded to the 1st respondent, for independent review, and further action. It is averred that a complaint against the police should have been processed under section 24 of the Independent Policing Oversight Authority Act, Cap. 86, Laws of Kenya, arguing that that process should have been exhausted, prior to judicial review proceedings being mounted.
10. 3 documents are annexed to that affidavit, being a letter written by the Directorate of Criminal Investigations, Naivasha office, to the National Environmental Management Authority, Naivasha Sub-County Office, dated 6th June 2024; a letter written by the Directorate of Criminal Investigations, Naivasha office, to the 5th respondent, dated 7th June 2024, calling for various reports; and a letter addressed to the Nakuru County Government Disaster Management Authority, by the Directorate of Criminal Investigations, Naivasha office, dated 7th June 2024, calling for a report on the incident.
11. The 4th and 5th respondents have filed a replying affidavit, sworn on 15th June 2026, by Mr. Stanley Gitari, the Company Secretary and General Manager Legal Services of the 5th respondent. The flash floods are conceded, but liability is denied. It is averred that no evidence has been tabled, to demonstrate that any complaint had been lodged against the 1st and 3rd respondents to warrant any administrative action or intervention being sought. It is argued that the correspondence attached did not constitute complaints, requesting for investigations, or to evidence wrongdoing on the part of the respondents. It is asserted that no legal or factual basis has been established for authority to mount a private prosecution or to compel prosecution of the 4th and 5th respondents. It is asserted that the 4th and 5th respondents have no control over the conduct of investigations and the mounting of a prosecution by the 1st and 3rd respondents. It is averred that personal criminal liability cannot be attributed to the 4th respondent as the chief executive officer of the 5th respondent, and no specific acts of commission or omission, on the part of the 4th respondent, have been pointed out.
12. It is argued that the issues raised by the applicants are contested, and are not suitable for litigation and determination in judicial review proceedings, for they would require the presentation of oral evidence, which ought to be tested in open court. It is argued that a foundation has not been laid, for the mounting of a private prosecution. It is pointed out that there is a pending claim, in Naivasha HC Petition No. E003 of 2025, where compensation is being sought, and there could be abuse of process, in the filing and prosecution of these judicial review proceedings. On access to information, it is averred that that issue was before the Commission on Administrative Justice, and a determination was rendered, on 13th November 2025, directing disclosure, subject to the applicable statutory limitations. It is averred that the information sought was disclosed. The doctrines of exhaustion and constitutional avoidance are pleaded.
13. In addition to filing a replying affidavit, the 4th and 5th respondents have also filed a motion, dated 23rd May 2026, principally seeking the striking out or dismissal of the application, dated 8th April 2026. That application is founded on the affidavit of Mr. Gitari, the deponent of the replying affidavit, sworn on 15th June 2026. The facts deposed to and the grounds upon which the application is founded are a replica of the contents and substance of the affidavit of 15th June 2026. The affidavit of 15th June 2026 is a duplication of the application, dated 23rd May 2026, and its supporting affidavit. There was really no need for the 4th and 5th respondents to have filed the replying affidavit, for they could have simply relied on the averments made in the earlier filing. Alternatively, they ought to have withdrawn the application, before filing the replying affidavit. These multiple filings serve no purpose, other than crowding the court record with duplicitous documents. Be that as it may.
14. The 6th respondent has filed a replying affidavit, sworn by Mr. Peter K. Ndung’u, one of its officers, on 6th June 2026. It is averred that the 6th respondent is mandated, by the Public Procurement and Asset Disposal Act, Cap. 412C, Laws of Kenya, to conduct investigations and act on complaints, received on procurement and asset disposal proceedings. Receipt of a complaint from the applicants, vide a letter dated 7th May 2025, is acknowledged, which letter had sought investigations into the tendering process by the 5th respondent, for the reconstruction of the concrete and soil embankment tunnel bridge at Maai-Mahiu, after the flood disaster. It is averred that receipt of that letter was acknowledged, and that the 6th respondent engaged the 5th respondent over the matter. It is averred that the 5th respondent responded to the enquiries by the 6th respondent, from which the 6th respondent concluded that the 5th respondent had complied substantially with the tendering law and process. It is asserted that the 6th respondent had duly complied, by investigating the matter, and sharing the outcome of its investigations with the applicants.
15. Attached to that response are various documents. There is a copy of the letter the applicants wrote to the 6th respondent, dated 7th May 2025. There is a copy of a letter from the Commission on Administrative Justice, dated 9th June 2025, on a request for information, by the applicants, relating to the tendering process undertaken by the 5th respondent. There is the letter written by the 6th respondent, on 24th June 2025, acknowledging receipt of that by the applicants, dated 7th May 2025. There is a letter, dated 8th June 2025, by the 6th respondent, addressing the Commission on Administrative Justice, informing that it had received a complaint from the applicants, and that it had commenced investigations on it. There is a letter from the 5th respondent, dated 12th September 2025, to the 6th respondent, explaining about the tendering process that it had undertaken. There is a letter, dated 17th September 2025, to the 6th respondent, from the applicants, following up on their letter of 7th May 2025. There is another letter, of 3rd November 2025, from the applicants, to the 6th respondent, giving notice of an intention to sue. The other letter is dated 5th December 2025, from the 6th respondent, advising that the tendering process by the 5th respondent had complied with the law. There is also a letter of 28th August 2025, from the 6th respondent, to the 4th respondent, pointing out some non-compliances with the Public Procurement and Asset Disposal Act, by the 5th respondent, regarding the tendering process. There is a letter, dated 15th July 2025, from the 6th respondent, advising that the court had stopped the reconstruction process, and also giving a general background to the disaster.
16. There is a rejoinder by the applicants, by way of an affidavit by Mr. Kamau, the 84th applicant, sworn on 10th June 2026, in response to the grounds of opposition by the 1st and 2nd respondents, both of which are dated 4th May 2026. He avers that the applicants wrote to the 1st respondent, requesting him to carry out investigations and to prosecute the responsible officers of the 5th respondent. It is also averred that a similar letter was written to the 3rd respondent, requesting that investigations be carried out, into the criminal responsibility and liability of the 4th respondent and other responsible officers of the 5th respondent. Other letters were also allegedly addressed to the 4th, 5th and 6th respondents, requesting for procurement information, relating to the re-construction of the Dark Tunnel. It is averred that another letter was done to the Commission on Administrative Justice, with respect to failure of the 5th respondent, to supply relevant information, and the ombudsman subsequently issued a formal order, on 13th November 2025. It is averred that despite that, none of the respondents acted on the said letters, for there was no response to either of them.
17. It is averred that the 1st respondent has admitted, in its grounds of opposition, that no investigation file was ever forwarded to it, which is the very wrong that the applicants are complaining about, and for which they could not be held responsible for, for it is the failure of the 3rd respondent to complete investigations, and forward the file to the 1st respondent, that has instigated these proceedings. It is averred that all what the applicants seek is for the 1st respondents to receive the investigation file, review the evidence and make a decision. It is asserted that the applicants are not seeking to have the 1st respondent to proffer specific criminal charges, but rather to make a decision on the matter, one way or the other. It is averred that the 1st respondent has not filed any evidence, by way of an affidavit, with respect to the steps taken, towards investigations and prosecution, regarding the Maai-Mahiu Tragedy, and no explanations have been offered for not pressing for investigations to be carried out.
18. On the matter of exhaustion of other avenues for redress before court action, it is averred that after the respondents failed to act on the requests by the applicants, the Commission on Administrative Justice was approached, and it intervened, but to no avail. It is averred that there was no avenue after that, that could be pursued, save the court action. It is submitted that the application is not time-barred, under section 9(2) of the Fair Administrative Action Act, as the wrong complained of was not a single administrative act on a fixed identifiable date, for it is an ongoing and continuous failure by the respondents to perform their constitutional and statutory duties. It is further averred that there is no prescribed internal review procedure, under section 9(4) of the Fair Administrative Action Act, applicable to failure by the 1st and 3rd respondents to investigate mass murder.
19. Several documents are attached to that affidavit. There is a letter addressed to the 1st respondent, dated 11th November 2024, calling for the arrest of the 4th respondent, for breach of the common law duty of care, owed to the residents of the areas affected by that flood disaster in Maai-Mahiu, pointing out the various statutory provisions which are relevant in the circumstances, and reminding him about how his office had acted swiftly, when a similar disaster struck in Solai, Nakuru, in 2018. There is also a copy of the letter that the applicants wrote to the 6th respondent, on 7th May 2025, asking for information, and urging for conduct of investigations. There is a copy of the order, by the Commission on Administrative Justice, dated 13th November 2025, ordering the 4th respondent to facilitate the information that the applicants had sought, by their letter of 7th May 2025, and directing publication of information relating to reconstruction of bridges in the affected areas. There is a copy of another letter, dated 5th December 2025, from the 6th respondent, providing some information on the procurement process, relating to the reconstruction of the bridges, and explaining that the procurement process complied with the law.
20. There is a notice, in a letter, dated 18th November 2025, to sue, addressed to the 1st respondent. There is a copy of a letter, dated 17th September 2025, addressed to the 6th respondent, being a follow up to the letter of 7th May 2025, which was subsequently responded to vide the letter of 5th December 2025. There is another letter, dated 7th May 2025, addressed to the National Environment Management Authority and the Ethics and Anti-Corruption Commission, on public participation that had allegedly been conducted in the affected areas. There is another letter, dated 12th November 2025, being a notice to sue, addressed to the Principal Secretary, the National Treasury and Economic Planning. There is another notice of intention to sue, dated 18th November 2025, addressed to the 3rd respondent. There are also copies of affidavits, by the 84th applicant, sworn on 8th April 2026, and filed herein, and another, sworn by Eng. Shimrone Munga, on 28th April 2025, and filed in Naivasha ELC Petition No. E001 of 2025. The rest of the material are documents that are attached to the affidavit of Mr. Kamau, of 8th April 2026, filed herein.
21. Mr. Kamau has sworn another affidavit, on 10th June 2026, in reply to the application by the 4th and 5th respondents, dated 23rd May 2026, which seeks the dismissal and setting aside of the instant proceedings. The said affidavit responds to the issues raised in that application, on jurisdiction under Article 157(10) of the Constitution and separation of powers; res judicata and the Environment and Land Court judgement in ELCPET/E001/2025; sub judice and Naivasha ELC Constitutional Petition No. E003/2025 and Nakuru HC E025/2024; access to information; the doctrine of exhaustion; collateral attack on determinations of competent courts; factual issues unsuitable for judicial review and lack of coherent constitutional basis; frivolity, vexation and abuse of process; and lack of merit, fatal defects and lack of reasonable cause.
22. He has attached to that affidavit documents to show that he had sought information on the matter from the relevant entities, and the Commission on Administrative Justice had ordered facilitation of that access to information. There is also a copy of the judgement delivered in Naivasha ELC ELCPET/E001/2025.
23. The parties have filed written submissions, to canvass the originating motion.
24. I have not come across written submissions by the applicant.
25. The written submissions, by the 1st respondent, are dated 12th May 2026. They address 3 issues, around the doctrines of ripeness and exhaustion; the extent of merit review in judicial review proceedings; and whether the threshold for grant of the orders set has been met. Section 88 of the Criminal Procedure Code, Cap 75, Laws of Kenya; section 9(2) of the Fair Administrative Action Act; Legal-Aid South Africa Mzoxolo Magidiwana and President of the Supreme Court of Kenya & another [2016]; Pauline Raget Adhiambo Agot vs. Director of Public Prosecutions & 3 others [2010] Petition No. 446 of 2015; John Florence Maritime Services Limited & another vs. Cabinet Secretary Transport and Infrastructure & 3 others [2021] KESC 39 (KLR); Suchan Investments Limited vs. Ministry of National Heritage and Culture & 3 others [2016] eKLR; Saisi & 7 others vs. Director of Public Prosecutions & 2 others [2023] KESC 6 (KLR); Dr. Alfred N. Mutua vs. The Ethics and Anti-Corruption Commission & others Misc. Application No. 31 of 2016; Makokha vs. Netia & another [2023] KEHC 22452 (KLR) and Republic Through Agot vs. Norman & 18 others [2024] KEHC 8797 (KLR) are cited.
26. The 2nd and 3rd respondents submit on only 1 issue, in their written submissions, dated 15th June 2026, relating to whether the application offends the doctrine of exhaustion. Section 9(4) of the Fair Administrative Action Act, and the decisions in Speaker of the National Assembly vs. Karume [1992] KLR 21, Geoffrey Muthinja Kabiru & 2 others vs. Samuel Munga Henry & 1756 others, In the Matter of Mui Coal Basin Local Community and Marimba Investments vs. Director General of the National Transport and Safety Authority & 2 others [2018] eKLR are cited.
27. The submissions, by the 4th and 5th respondents, are dated 15th June 2026. The 4th and 5th respondents identify 5 issues for determination, around whether the 1st and 3rd respondents can be complied by way of judicial review, to investigate and institute criminal proceedings; whether basis has been established, for attributing personal criminal liability on the 4th respondent; whether the prayer for leave to mount a private prosecution is premature; whether the prayer for access to information is properly before the court; and whether the prayer for aggravated damages and the proceedings are generally barred by the doctrines of res judicata, sub judice and abuse of court process.
28. Praxidis Namoni Saisi & 7 others vs. Director of Public Prosecutions & 2 others [2023] KESC 6 (KLR); Dande & 3 others vs. Inspector General, National Police service & 5 others [2023] KESC 40 (KLR); Speaker of the National Assembly vs. Karume [1992] KLR 21; Okiya Omtata Okoiti vs. Communications Commission of Kenya & others; Floriculture International Limited & others vs. Attorney General Civil Appeal No. 114 of 1997 and Independent Electoral & Boundaries Commission & 5 others vs. Maina Kiai, are cited.
29. The 6th respondent has also filed written submissions, dated 16th June 2025. It addresses 3 issues, around the 6th respondent having discharged its statutory mandate under the Public Procurement and Asset Disposal Act, whether violation of the rights of the applicants by the 6th respondent has been demonstrated, and whether the orders sought could be made. It cites only 1 decision, Annarita Karimi Njeru vs. Republic [1979] KLR 154 [1979] eKLR.
30. These proceedings arise from the Maai-Mahiu floods, after the water washed through a blocked tunnel, and rushed downstream, and in the process damaged property and caused deaths. The pleadings are not clear on the number of the dead. I have, however, seen letters from the Senior Chief of Maii-Mahiu Location, relating to deaths of 55 individuals. The police mention that 76 bodies were recovered. These proceedings seek to have accountability for the said deaths, by the 4th and 5th respondents, who had control of the railway facilities, from which the flood waters came. The application targets the 1st, 2nd and 3rd respondents, the State entities and offices that ought to have sought that accountability from the 4th and 5th respondents, by way of criminal prosecution, on the basis that the deadly flooding arose from criminal negligence and breach of duty of care, on the part of the 5th respondent, who owned the property from which the waters flowed, and the 4th respondent, who was the Chief Executive Officer of the 5th respondent at the material time.
31. The complaint is that, despite the loss of so many lives, in that incident, in circumstances that were preventable, if those in charge of the property or asset, from which the waters emerged, had taken appropriate steps, to prevent accumulation of water on the embankment or its breach by the water, the tragedy would have been averted, yet no one has been called upon to account, by way of criminal proceedings being initiated, against those who should be criminally responsible for that loss. It is argued that the 3rd respondent ought to have conducted investigations into the incident, to collect evidence, with a view to assess whether there was any element of criminality, on the part of those who were in control of the assets where the waters came from, that is to say the 4th and 5th respondents. It is also argued that the 1st respondent ought to have prosecuted the 4th and 5th respondents, upon investigations being completed.
32. The applicants make reference to the Solai Dam Disaster of 2018, where water breached an irrigation dam, after heavy rains, swept downstream, and killed people and destroyed property in its wake. Following that 2018 incident, the 1st and 3rd respondents moved with alacrity, investigated the incident, apprehended the owners and managers of the property in question, and prosecuted them, in Naivasha MCCRC No. 977 of 2018 Republic vs. Perry Mansukh Kansagara & 8 others. A copy of a ruling of the Court of Appeal, in Perry Mansukh Kansagara & 3 others vs. Director of Public Prosecutions [2021] KECA 941 (KLR), which arose from that prosecution, is attached. The applicants argue that the State has been selective and discriminative, in the manner that it has handled the Maai-Mahiu incident, when contrasted with what happened after the Solai Dam incident.
33. The 3rd respondent has, through its investigating officer, confirmed that the incident was reported to the police, a rescue operation was mounted, investigations were conducted, an inquest file was opened, and the inquest is ongoing, in Public Inquest File No. 1 of 2024, after which the file shall be forwarded to the 1st respondent, for review and further action. The 3rd respondent indicates that the police reached out to various State entities, seeking information to enrich the investigations, but received no cooperation. The State entities in question, which did not cooperate with the police, in its investigations, are identified as the Naivasha National Environmental Management Authority office, the 5th respondent, the Disaster Management office within the County Government of Nakuru, the Water Resources Authority and the National Water Harvesting and Storage Authority.
34. The 1st respondent has reacted to the matter by raising 3 principal technical arguments. The first is that it is not its mandate to conduct investigations into such incidents, and that it would only get involved after the investigation file has been forwarded to it, by the 3rd respondent. The second is that the matter is res judicata and sub judice. The third argument is that the applicants have not exhausted other avenues for redress, hence the doctrines of ripeness and exhaustion should apply to defeat the application.
35. For the purposes of these proceedings, the principal respondents are really the 1st and 3rd respondents. The 2nd respondent is named as such in her capacity as the universal Advocate for the State. The 4th, 5th and 6th respondents are peripheral parties, who ideally, should have been named as interested parties. The principal complaint is about the failure by the 1st respondent to initiate criminal proceedings against the 4th and 5th respondents.
36. It would appear, from the affidavit filed on behalf of the 3rd respondent, that the police did, indeed, carry out some investigations, which formed the basis for commencement of inquest proceedings. There is frustration expressed, that some State agencies and entities, with information that would have aided the investigations, frustrated the process, by failing to cooperate. Among those State actors is the 5th respondent.
37. However, although th
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