INTRODUCTION
1. What is before Court for determination is the Petitioners' Notice of Motion Application dated 19 th December 2025. The Application seeks conservatory orders to restrain the implementation of the Riruta-Ngong Commuter Meter Gauge Railway Project (the Project) and also interlocutory orders for discovery and production of documents. The Application is brought under Articles 22, 23(3), and 258 of the Constitution, and the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
2. The Petitioners/Applicants, acting in the public interest, contend that the Project, valued at Kshs.11,505,806,368/= and the wider project portfolio of the 1 st Respondent valued at approximately Kshs.2.824 trillion, are being implemented in flagrant violation of the Constitution. The gravamen of their complaint is fourfold.
3. First, the Applicants contend that the Railway Development Levy Fund (RDLF) is being utilized to finance a metre-gauge commuter line contrary to its statutory purpose which is limited to the construction and operation of a standard gauge railway network.
4. Secondly, the Applicants contend that the impugned Project commenced without specific parliamentary appropriation; thereby violating Articles 206, 220, and 221 of the Constitution.
5. Thirdly, the Applicants contend that the identification and procurement of the 9 th Respondent as the Project’s Contractor and the 10 th Respondent as the Project Consultant was by way of single-sourcing, contravening the constitutional dictates of fairness, equity, transparency, competitiveness, and cost-effectiveness under Article 227.
6. Lastly, the Applicants contend the Project was initiated without meaningful public participation and in defiance of the Petitioners' constitutional right of access to information under Article 35.
7. The Petitioners/Applicants’ Notice of Motion Application dated 19 th December 2025 is supported by the Affidavit of the 1 st Petitioner sworn on 19 th December 2025. Annexed to that Supporting Affidavit is a compendium of public documents, including the Auditor-General's Reports on the RDLF and the Kenya Railways Corporation, extracts from national budget estimates, and correspondence demonstrating the Petitioners failed attempts to obtain information and documents from the Respondents.
8. The 1 st Interested Party, supporting both the Petitioners’ Application as well as the underlying Petition, filed a Replying Affidavit sworn on 30 th December 2025. That Replying Affidavit in Support provides additional detail on the alleged absence of pre-feasibility and feasibility studies, alleged conflicting financial disclosures regarding the Project, and the unsuccessful pursuit of administrative remedies before the Commission on Administrative Justice.
9. The Applicants and the 1 st Interest Party contend that the second limb of the Application, which seeks interlocutory orders for discovery and production of documents, was necessitated by and is merited for the reason of the above alleged intransigence by the Respondents in the face of requests for information and documentation.
10. The Application is opposed, and vehemently so. The 1 st and 2 nd Respondents filed a Replying Affidavit sworn by Stanley Gitari on 27 th January 2026, together with a Replying Affidavit by Engineer John Maina of even date, and consolidated written submissions dated 7 th February 2026.
11. The 9 th Respondent filed a Replying Affidavit sworn by Liu Jian on 2 nd February 2026, a Notice of Motion seeking discharge of interim orders, and written submissions dated 9 th February 2026.
12. The 10 th Respondent filed a Replying Affidavit sworn by Eng. Misheck Waititu on 8 th January 2026 and written submissions dated 27 th January 2026.
13. The 7 th Respondent filed a Replying Affidavit sworn by Samuel J. Njoroge on 27 th January 2026, a Further Affidavit of 8 th February 2026, a Second Further Affidavit of 16 th February 2026, and written submissions dated 4 th February 2026.
14. The 11 th Respondent filed a Replying Affidavit sworn by Mo Kun on 6 th February 2026 and written submissions dated 12 th February 2026.
15. The Petitioners, in turn, filed Further Affidavits and supplementary written submissions in reply. The 3 rd Petitioner filed a Further Affidavit of 2 nd February 2026 in response to the various replying affidavits filed in reply and opposition.
16. The 1 st Petitioner filed a 2 nd Further Affidavit on 10 th January 2026 in response to the 10 th Respondent, and a 3 rd Further Affidavit on 20 th February 2026 in response to the 7 th Respondent's affidavits.
17. The 2 nd Petitioner filed a Replying Affidavit of 1 st February 2026, a 3 rd Further Affidavit on 18 th February 2026, and supplementary submissions on 1 st February 2026. The 1 st and 2 nd Petitioners also filed further written submissions on 9 th February 2026, rebutting the responses of the 1 st , 2 nd and 9 th Respondents.
18. By orders issued on 20 th January 2026, this Court granted interim conservatory orders restraining the Respondents from continuing, implementing, financing, or progressing the construction of the Project.
19. The factual matrix giving rise to this dispute is largely uncontested, though the legal characterization of those facts is hotly disputed. The Project is a proposed 12.5-kilometre metre-gauge railway line intended to run from Riruta in Nairobi County to Ngong in Kajiado County, with intermediate stations at Karen, and Embulbul. It forms part of a larger planned 30.5-kilometre loop extending to Kiserian and Ongata Rongai.
20. The Project was officially commissioned by His Excellency the President of the Republic of Kenya on 14 th December 2023. Construction works commenced in earnest in early 2024. By the time this petition was filed on 19 th December 2025, the Project had attained approximately 40.5% completion as per the progress report annexed to the 9 th Respondent's Replying Affidavit; a statistic denied by the Petitioners.
21. The procurement history reveals that the 1 st Respondent issued a Letter of Award to the 9 th Respondent on 21 st September 2022 for the construction of the Project at a negotiated contract sum of Kshs.8,212,028,998.68. A formal commencement order was issued on 16 th January 2024, setting the official commencement date as 23 rd January 2024. The 10 th Respondent was contracted on or about November 2023 to provide consultancy services, including the preparation of the Environmental and Social Impact Assessment (ESIA) study and Resettlement Action Plan. The ESIA study report is dated 17 th May 2024, and the National Environment Management Authority issued the requisite Environmental Impact Assessment licence on 19 th September 2024.
22. The financing of the Project is a central point of contention. According to the 1 st and 2 nd Respondents, the Project is funded from the Railway Development Levy Fund. They rely on letters from the National Treasury dated 20 th July 2022 granting approval for the 1 st Respondent to commence project preparation and implementation, and a further letter dated 10 th July 2024 approving the pre-feasibility study for the entire railway link. The 7 th Respondent, in its further affidavit of 8 th February 2026, provided a table showing parliamentary allocations to the Project, indicating Kshs.125 million in FY 2022/23 (classified as government allocation), Kshs.3.72 billion in FY 2024/25, and Kshs.3.27 billion in FY 2025/26 (both classified as Appropriations-in-Aid from the RDLF). The 7 th Respondent confirmed that no amount was allocated in FY 2023/24.
23. The Petitioners, however, point to what they term "material discrepancies" in these financial disclosures. They note the absence of any allocation in FY 2023/24, a period during which they allege substantial construction works were already underway. They further contend that the classification of RDLF proceeds as "Appropriations-in-Aid" is a procedural device that cannot cure the substantive illegality of applying a fund established for standard gauge railway purposes to a metre-gauge commuter line.
24. The statutory framework governing the RDLF is derived from Section 8 of the Miscellaneous Fees and Levies Act, Cap 469C. The provision, in its original form, limited the purpose of the levy to providing funds for the construction of a standard gauge railway network. By the Tax Laws (Amendment) Act, No. 2 of 2020, Section 8(3) was amended to insert the words "and operation" immediately after the word "construction". The purpose of the fund thus became "the construction and operation of a standard gauge railway network". The Customs and Excise (Railway Development Levy Fund) (Amendment) Regulations, 2020 (Legal Notice No. 86 of 2020) similarly expanded the application of the fund to cover SGR operations.
25. The Petitioners contend that the Riruta-Ngong line is a metre-gauge railway, technically, functionally, and legally distinct from the standard gauge railway. They argue that applying RDLF proceeds to a metre-gauge project is ultra vires the statute and violates the specific-purpose doctrine enshrined in Article 206(1)(a) of the Constitution. The Respondents counter that the Project is an integral operational component of the SGR system, designed to provide last-mile connectivity and enhance the commercial viability of the SGR. They argue for a purposive interpretation of the statutory purpose that would encompass feeder lines and complementary infrastructure.
26. On 12 th February 2026, subsequent to the filing of this petition and after the issuance of interim conservatory orders, the Leader of the Majority Party introduced the Miscellaneous Fees and Levies (Amendment) Bill, 2025 (National Assembly Bills No. 57 of 2025). Clause 3(a) of the Bill seeks to amend Section 8(3) of the principal Act by expanding the purpose of the levy to include, inter alia, "financing the development and construction of railway infrastructure" and "rehabilitation of railway transport infrastructure". The Bill underwent first reading on 12 th February 2026 and was committed to the Departmental Committee on Transport and Infrastructure for public participation, which closed on 20 th February 2026. The Bill has not yet been enacted into law.
27. The 7 th Respondent, by its second further affidavit sworn on 16 th February 2026, contends that this legislative development has effectively collapsed the substratum of the petition. The Petitioners, in response through the 1 st Petitioner's 3 rd further affidavit sworn on 20 th February 2026, argue that a pending Bill has no legal effect, cannot retrospectively validate past unconstitutional conduct, and does not address the numerous other constitutional violations pleaded in the petition, including procurement irregularities, public participation deficits, and the insolvency of the 1 st Respondent.
28. The issue of public participation with respect to the Project has been litigated previously. In Environment and Land Court Petition No. E028 of 2024, Samora Sikalieh (Being Chairman of and Suing in Public Interest and on behalf of the Members of Karen Langata District Association) v Kenya Railways Corporation & 5 others , the Environment and Land Court delivered judgment on 1 st July 2025. The learned judge, A. Omollo J, after considering extensive evidence of stakeholder meetings held between November 2023 and April 2024, held that the Respondents had conducted adequate public participation before the ESIA study report was prepared. The court further declined to nullify works undertaken prior to the issuance of the EIA licence, having regard to the public good served by the Project and the mitigation measures contained in the ESIA report.
29. The Respondents rely heavily on this judgment, invoking the doctrines of res judicata and issue estoppel. The Petitioners contend that the ELC petition addressed only environmental compliance issues, whereas the present petition raises distinct constitutional questions relating to public finance, procurement, and the validity of the RDLF, matters the ELC expressly declined to adjudicate.
THE PETITIONERS' LEGAL ARGUMENTS IN SUPPORT
30. The Petitioners' case, as articulated in their Notice of Motion dated 19 th December 2025, their affidavits, the 1 st Interested Party's replying affidavit, and their joint written submissions, is that the Project is being implemented in a manner that fundamentally subverts the constitutional architecture governing public finance, procurement, and public participation.
31. On the legal framework governing conservatory orders, the Petitioners submit that the threshold for grant of such orders is well settled in the Supreme Court decision in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR . They contend that conservatory orders are public law remedies distinct from private law injunctions, intended to preserve the subject matter of constitutional litigation and to uphold the adjudicatory authority of the court. They submit that the three-limb test requires demonstration of a prima facie case with a likelihood of success, a real danger that the petition will be rendered nugatory if orders are not granted, and consideration of public interest.
32. On the existence of a prima facie case, the Petitioners advance several grounds. First, they contend that the financing of the Project from the RDLF is ultra vires the statute. They draw attention to Section 8(3) of the Miscellaneous Fees and Levies Act, which limits the purpose of the fund to "construction and operation of a standard gauge railway network". They submit that a metre-gauge commuter line is technically, functionally, and legally distinct from a standard gauge railway, and that applying RDLF proceeds to such a project violates the specific-purpose doctrine under Article 206(1)(a) of the Constitution. They rely on the principle of statutory interpretation, expressio unius est exclusio alterius , arguing that the express limitation to standard gauge excludes other gauges and purposes.
33. Second, the Petitioners submit that the Project was commenced without specific parliamentary appropriation. They point to the 7 th Respondent's admission that no amount was allocated to the Project in FY 2023/24, a period during which construction works were already underway. They argue that internal Treasury approvals and the belated classification of funds as Appropriations-in-Aid in subsequent financial years cannot substitute for the exclusive constitutional power of Parliament to appropriate public funds under Articles 220 to 223. They rely on the principle that parliamentary approval must precede expenditure, and that post facto ratification cannot cure antecedent illegality.
34. Third, the Petitioners challenge the procurement process, contending that the single-sourcing of the 9th Respondent as contractor and the 10 th Respondent as consultant violates Article 227 of the Constitution, which mandates a system that is fair, equitable, transparent, competitive, and cost-effective. They argue that the justification of "standardization and compatibility" under Section 103(2)(d) of the Public Procurement and Asset Disposal Act is facially implausible where the contract is for a metre-gauge line and the prior contract was for a standard gauge railway. They note the absence of any evidence of tender evaluations, market analyses, or compatibility studies.
35. Fourth, the Petitioners submit that the Project was initiated without meaningful public participation. They rely on the correspondence exhibited in the 1 st Interested Party's affidavit, demonstrating repeated requests for information and engagement that were ignored or rebuffed. They argue that the stakeholder meetings relied upon by the respondents were information sessions conducted after the Project had already been commissioned and construction had commenced, rendering them retroactive box-ticking exercises rather than genuine consultation.
36. Fifth, the Petitioners raise the issue of the 1 st Respondent's financial insolvency. They point to audited financial statements showing accumulated losses of approximately Kshs.197 billion and negative equity of approximately Kshs.72 billion. They argue that assigning a Kshs.2.824 trillion project portfolio to such an entity is irrational and violates Article 201(d) of the Constitution, which mandates intergenerational equity and prudent use of public resources.
37. On the question of irreparable harm and the petition being rendered nugatory, the Petitioners submit that the harm is not speculative but occurring daily. They contend that continued construction will result in irreversible dissipation of contested public funds, irreversible ecological damage to Ngong Road Forest, and the creation of fait accompli that would render any eventual judgment in their favour an academic exercise. They argue that public funds, once unlawfully disbursed and expended, cannot practically be recovered.
38. On public interest, the Petitioners submit that the paramount public interest lies in upholding the Constitution, preventing unlawful use of public resources, and enforcing accountability before expenditure, not after. They argue that the Respondents’ invocation of sunk costs and public benefits turns constitutional logic on its head, as it would mean the larger the alleged illegality and the more money spent, the more immune it becomes to judicial review.
39. The Petitioners further address the procedural objections raised by the respondents. On res judicata , they contend that ELC Petition No. E028 of 2024 (supra) addressed only environmental licensing issues, whereas the present petition concerns public finance constitutionality, which was neither pleaded nor determined in that case. They rely on the principle that res judicata requires strict identity of parties, cause of action, and subject matter, citing Uhuru Highway Development Ltd v Central Bank of Kenya [1997] eKLR . They note that the ELC itself, at paragraph 107 of its judgment, acknowledged its lack of jurisdiction over financing matters and expressly recommended that the Petitioner seek recourse in the appropriate forum.
40. On jurisdiction and locus standi of the Petitioners, the Petitioners submit that statutory bodies such as the Public Procurement Administrative Review Board, the National Environment Tribunal, or the Commission on Administrative Justice lack jurisdiction to interpret the Constitution, invalidate statutes, or determine the constitutionality of public funds. They rely on the Supreme Court decision in Petition Number 42 of 2019: Kenya Vision 2030 Delivery Board v The Commission on Administrative Justice, the Attorney General & Eng. Judah Abekah, which stripped the CAJ of any binding adjudicative powers.
41. On the Miscellaneous Fees and Levies (Amendment) Bill, 2025, introduced after the filing of this petition, the Petitioners submit that a pending Bill has no legal force and cannot moot existing constitutional proceedings. They argue that the Bill, even if enacted, cannot retrospectively validate past unconstitutional expenditure or conduct, and that it does not address the numerous other constitutional violations pleaded in the petition. They contend that the timing of the Bill raises serious concerns of legislative interference with the judicial process, and that to permit such conduct would encourage constitutional violations followed by legislative whitewashing.
42. The Petitioners therefore pray that the conservatory orders issued on 20 th January 2026 be confirmed and upheld pending the hearing and determination of the petition, and that the contempt application be set down for hearing with directions for filing of verified evidence of compliance.
THE 1 ST INTERESTED PARTY'S CASE
43. The 1 st Interested Party supports the application through his replying affidavit sworn on 30 th December 2025 and his written submissions dated 8 th January 2026.
44. The 1 st Interested Party provides detailed evidence of the pre-feasibility and feasibility deficits in the Project. He annexes the Kenya Railways Corporation advertisement for consultancy services for feasibility studies, published in February 2025, which notably excludes Line 8 (the Riruta-Ngong corridor) from the scope of the proposed feasibility study. He argues that this omission, coupled with the lack of any pre-feasibility or feasibility studies conducted by the Respondents, raises serious concerns regarding prudent use of public funds and adherence to the Public Investment Management framework.
45. It was submitted that the Petitioners have demonstrated how the Respondents have violated the constitutional values and due legal process required to be followed prior to the commencement and implementation of the project thereby meeting the threshold for the grant of conservatory orders being sought.
46. On the financial aspects, the 1 st Interested Party highlights the material discrepancies in the reported contract sums and sources of funding. He notes that the Auditor-General's Report indicates estimated costs of Kshs.11.5 billion from the RDLF, while the Estimates of Development Expenditure show allocations totalling approximately Kshs.5 billion over three financial years, and the Senate Hansard records construction costs of Kshs.8.26 billion and land acquisition costs of Kshs.2.8 billion from the Government of Kenya. He argues that this lack of clarity undermines transparency and accountability.
47. On access to information, the 1 st Interested Party details the extensive correspondence between KLDA and the respondents, spanning from June 2023 to August 2025, seeking information on feasibility studies, construction plans, budgetary approvals, and procurement documentation. He annexes copies of letters, meeting minutes, and the response from the Commission on Administrative Justice. He argues that the Respondents’ persistent failure to disclose information violates Article 35 of the Constitution and Sections 5, 8, and 9 of the Access to Information Act.
48. On the doctrine of exhaustion, the 1 st Interested Party submits that the administrative mechanism under Section 23 of the Access to Information Act proved ineffectual, as the Commission on Administrative Justice neither compelled disclosure nor issued binding directions. He argues that the issues raised in the petition transcend administrative disputes and involve systemic constitutional violations that the CAJ lacks jurisdiction to adjudicate. Reliance was placed on the decision in Katiba Institute v Presidents Delivery Unit & 3 others [2017] eKLR and Khalifa & another v Principal Secretary, Ministry of Transport & 4 others; Katiba Institute & another (Interested Parties) [2022] eKLR in support of his arguments.
49. The court was urged to allow the Petitioners’ Application dated 19 th December 2025 as prayed to prevent imminent constitutional violations, to safeguard public resources and uphold public confidence in governance and lawful decision making.
THE 1 ST AND 2 ND RESPONDENTS’ CASE
50. The 1 st and 2 nd Respondents oppose the application through the replying affidavit of Stanley Gitari, the replying affidavit of Engineer John Maina, and their consolidated written submissions.
51. On the legal principles governing conservatory orders, the 1 st and 2 nd Respondents rely on the Supreme Court decision in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others (supra) and the decision in Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others [2015] eKLR . They submit that the applicant must demonstrate an arguable prima facie case with a likelihood of success, that in the absence of the orders the petition will be rendered nugatory, and that public interest favours the grant of the orders.
52. The 1 st and 2 nd Respondents contend that the Petitioners have failed to demonstrate a prima facie case. They argue that the RDLF was lawfully established by Parliament and its application to the Project is within the statutory purpose. They annex a letter dated 25 th November 2024 from the Principal Secretary, National Treasury, granting approval for the Project. They further annex a letter dated 20 th July 2022 granting approval for Phase 1 implementation at a cost of Kshs.8.2 billion, and a letter dated 10 th July 2024 approving the pre-feasibility study for Phases 2 and 3.
53. On the specific-purpose doctrine, the 1 st and 2 nd Respondents argue that the Project is an integral component of the SGR system, designed to provide last-mile connectivity and enhance the commercial viability of the SGR. They submit that the Project forms part of the Nairobi Metropolitan Mass Transit Plan and the Kenya Railways Strategic Plan 2022-2027, and that the inter-linkage between the MGR and SGR is essential for optimal operation of the national railway network.
54. On public participation, the 1 st and 2 nd Respondents rely on the judgment in ELC Petition No. E028 of 2024, wherein the court held that adequate public participation was conducted. They annex the ESIA study report, which documents stakeholder meetings held between November 2023 and April 2024, and the attendance lists evidencing participation by diverse groups including residents, business owners, and institutional representatives. They argue that the issue of public participation has been conclusively determined and cannot be re-litigated under the doctrine of res judicata .
55. On the question of parliamentary appropriation, the 1 st and 2 nd Respondents submit that the Project is funded through the RDLF, which is a public fund established by an Act of Parliament. They argue that the National Treasury approvals annexed to their affidavits constitute sufficient authorization, and that the funds are disbursed through the Integrated Financial Information Management System, which ensures accountability and transparency.
56. On the balance of convenience and public interest, the 1 st and 2 nd Respondents submit that the Project is 40.5% complete, that substantial public funds have already been expended, and that halting the Project would occasion significant financial loss through contractual penalties and liquidated damages. They argue that the public interest lies in completion of the infrastructure, which will decongest Ngong Road, reduce transport costs, and create employment opportunities.
57. The 1 st and 2 nd Respondents further oppose the contempt application, contending that they have complied with the court orders by de-mobilising heavy construction machinery and securing the site. They argue that the activities observed post-order were limited to safety measures and site protection, which do not constitute continuation or progression of construction works.
THE 3 RD , 4 TH , 5 TH AND 6 TH RESPONDENTS’ CASE
58. The 3 rd , 4 th , 5 th and 6 th Respondents opposed the application vide the replying affidavit of the 5 th Respondent sworn by Mohamed Daghar, C.B.S and grounds of opposition dated 30 th December 2025. They contend that the Application does not meet the test for grant of conservatory orders as set out in the Supreme Court decision in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others (supra). They argue that in this interim stage, the Court should navigate a thin line by avoiding to delve onto the merits of the Petition prematurely before hearing the parties on merit but at the same time having an overview of the substance of the Petition itself and whether a case is made on a prima facie basis to warrant conservatory orders.
59. The Respondents asserts that the application is made on the basis of a misperception of a law since the Railway Development Levy Fund is not a novel establishment but it was put in place under Miscellaneous Levies Act, 2016. It is also argued that the provisions of this Act are entitled to enjoy a presumption of constitutionality, which can be affirmed only after a comprehensive hearing. Relying on the decision of the Supreme Court in SC Petition Nos. E031, E032, and E033 of 2024 , the Respondents argue that the Applicants have not proven a prima facie case, and they have not established that the impugned Act presents an impending threat to life and limb, which would justify its suspension at such an interim stage. Further reliance was placed on the decision in Attorney General & another v Coalition for Reform and Democracy & 7 others [2015] KECA 994 (KLR) in support of their arguments.
60. It is the Respondents case that the public interest is against the granting of the conservatory orders. It is argued that the fund was established as a result of policy objectives as stipulated in the Integrated National Transport Policy, and its execution which has already attained high level has a great purpose to the people. Stopping the fund at this point would also lead to fiscal constraints and cripple major projects to improve the railway infrastructure, which will cause the maximum harm to the largest number of people.
61. The Court was urged to allow the Petition to come to a full hearing, at which time the substratum of the case will be within the reach of the Court, by sustaining the presumption of regularity in government decisions. Therefore, they prayed that the Court should not grant the conservatory orders sought by the Petitioners.
THE 7 TH RESPONDENT'S CASE
62. The 7 th Respondent opposes the application through the replying affidavit of Samuel J. Njoroge sworn on 27 th January 2026, a further affidavit sworn on 8 th February 2026, a second further affidavit sworn on 16 th February 2026, and written submissions dated 4 th February 2026.
63. In its initial replying af
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1. What is before Court for determination is the Petitioners' Notice of Motion Application dated 19 th December 2025. The Application seeks conservatory orders to restrain the implementation of the Riruta-Ngong Commuter Meter Gauge Railway Project (the Project) and also interlocutory orders for discovery and production of documents. The Application is brought under Articles 22, 23(3), and 258 of the Constitution, and the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
2. The Petitioners/Applicants, acting in the public interest, contend that the Project, valued at Kshs.11,505,806,368/= and the wider project portfolio of the 1 st Respondent valued at approximately Kshs.2.824 trillion, are being implemented in flagrant violation of the Constitution. The gravamen of their complaint is fourfold.
3. First, the Applicants contend that the Railway Development Levy Fund (RDLF) is being utilized to finance a metre-gauge commuter line contrary to its statutory purpose which is limited to the construction and operation of a standard gauge railway network.
4. Secondly, the Applicants contend that the impugned Project commenced without specific parliamentary appropriation; thereby violating Articles 206, 220, and 221 of the Constitution.
5. Thirdly, the Applicants contend that the identification and procurement of the 9 th Respondent as the Project’s Contractor and the 10 th Respondent as the Project Consultant was by way of single-sourcing, contravening the constitutional dictates of fairness, equity, transparency, competitiveness, and cost-effectiveness under Article 227.
6. Lastly, the Applicants contend the Project was initiated without meaningful public participation and in defiance of the Petitioners' constitutional right of access to information under Article 35.
7. The Petitioners/Applicants’ Notice of Motion Application dated 19 th December 2025 is supported by the Affidavit of the 1 st Petitioner sworn on 19 th December 2025. Annexed to that Supporting Affidavit is a compendium of public documents, including the Auditor-General's Reports on the RDLF and the Kenya Railways Corporation, extracts from national budget estimates, and correspondence demonstrating the Petitioners failed attempts to obtain information and documents from the Respondents.
8. The 1 st Interested Party, supporting both the Petitioners’ Application as well as the underlying Petition, filed a Replying Affidavit sworn on 30 th December 2025. That Replying Affidavit in Support provides additional detail on the alleged absence of pre-feasibility and feasibility studies, alleged conflicting financial disclosures regarding the Project, and the unsuccessful pursuit of administrative remedies before the Commission on Administrative Justice.
9. The Applicants and the 1 st Interest Party contend that the second limb of the Application, which seeks interlocutory orders for discovery and production of documents, was necessitated by and is merited for the reason of the above alleged intransigence by the Respondents in the face of requests for information and documentation.
10. The Application is opposed, and vehemently so. The 1 st and 2 nd Respondents filed a Replying Affidavit sworn by Stanley Gitari on 27 th January 2026, together with a Replying Affidavit by Engineer John Maina of even date, and consolidated written submissions dated 7 th February 2026.
11. The 9 th Respondent filed a Replying Affidavit sworn by Liu Jian on 2 nd February 2026, a Notice of Motion seeking discharge of interim orders, and written submissions dated 9 th February 2026.
12. The 10 th Respondent filed a Replying Affidavit sworn by Eng. Misheck Waititu on 8 th January 2026 and written submissions dated 27 th January 2026.
13. The 7 th Respondent filed a Replying Affidavit sworn by Samuel J. Njoroge on 27 th January 2026, a Further Affidavit of 8 th February 2026, a Second Further Affidavit of 16 th February 2026, and written submissions dated 4 th February 2026.
14. The 11 th Respondent filed a Replying Affidavit sworn by Mo Kun on 6 th February 2026 and written submissions dated 12 th February 2026.
15. The Petitioners, in turn, filed Further Affidavits and supplementary written submissions in reply. The 3 rd Petitioner filed a Further Affidavit of 2 nd February 2026 in response to the various replying affidavits filed in reply and opposition.
16. The 1 st Petitioner filed a 2 nd Further Affidavit on 10 th January 2026 in response to the 10 th Respondent, and a 3 rd Further Affidavit on 20 th February 2026 in response to the 7 th Respondent's affidavits.
17. The 2 nd Petitioner filed a Replying Affidavit of 1 st February 2026, a 3 rd Further Affidavit on 18 th February 2026, and supplementary submissions on 1 st February 2026. The 1 st and 2 nd Petitioners also filed further written submissions on 9 th February 2026, rebutting the responses of the 1 st , 2 nd and 9 th Respondents.
18. By orders issued on 20 th January 2026, this Court granted interim conservatory orders restraining the Respondents from continuing, implementing, financing, or progressing the construction of the Project.
19. The factual matrix giving rise to this dispute is largely uncontested, though the legal characterization of those facts is hotly disputed. The Project is a proposed 12.5-kilometre metre-gauge railway line intended to run from Riruta in Nairobi County to Ngong in Kajiado County, with intermediate stations at Karen, and Embulbul. It forms part of a larger planned 30.5-kilometre loop extending to Kiserian and Ongata Rongai.
20. The Project was officially commissioned by His Excellency the President of the Republic of Kenya on 14 th December 2023. Construction works commenced in earnest in early 2024. By the time this petition was filed on 19 th December 2025, the Project had attained approximately 40.5% completion as per the progress report annexed to the 9 th Respondent's Replying Affidavit; a statistic denied by the Petitioners.
21. The procurement history reveals that the 1 st Respondent issued a Letter of Award to the 9 th Respondent on 21 st September 2022 for the construction of the Project at a negotiated contract sum of Kshs.8,212,028,998.68. A formal commencement order was issued on 16 th January 2024, setting the official commencement date as 23 rd January 2024. The 10 th Respondent was contracted on or about November 2023 to provide consultancy services, including the preparation of the Environmental and Social Impact Assessment (ESIA) study and Resettlement Action Plan. The ESIA study report is dated 17 th May 2024, and the National Environment Management Authority issued the requisite Environmental Impact Assessment licence on 19 th September 2024.
22. The financing of the Project is a central point of contention. According to the 1 st and 2 nd Respondents, the Project is funded from the Railway Development Levy Fund. They rely on letters from the National Treasury dated 20 th July 2022 granting approval for the 1 st Respondent to commence project preparation and implementation, and a further letter dated 10 th July 2024 approving the pre-feasibility study for the entire railway link. The 7 th Respondent, in its further affidavit of 8 th February 2026, provided a table showing parliamentary allocations to the Project, indicating Kshs.125 million in FY 2022/23 (classified as government allocation), Kshs.3.72 billion in FY 2024/25, and Kshs.3.27 billion in FY 2025/26 (both classified as Appropriations-in-Aid from the RDLF). The 7 th Respondent confirmed that no amount was allocated in FY 2023/24.
23. The Petitioners, however, point to what they term "material discrepancies" in these financial disclosures. They note the absence of any allocation in FY 2023/24, a period during which they allege substantial construction works were already underway. They further contend that the classification of RDLF proceeds as "Appropriations-in-Aid" is a procedural device that cannot cure the substantive illegality of applying a fund established for standard gauge railway purposes to a metre-gauge commuter line.
24. The statutory framework governing the RDLF is derived from Section 8 of the Miscellaneous Fees and Levies Act, Cap 469C. The provision, in its original form, limited the purpose of the levy to providing funds for the construction of a standard gauge railway network. By the Tax Laws (Amendment) Act, No. 2 of 2020, Section 8(3) was amended to insert the words "and operation" immediately after the word "construction". The purpose of the fund thus became "the construction and operation of a standard gauge railway network". The Customs and Excise (Railway Development Levy Fund) (Amendment) Regulations, 2020 (Legal Notice No. 86 of 2020) similarly expanded the application of the fund to cover SGR operations.
25. The Petitioners contend that the Riruta-Ngong line is a metre-gauge railway, technically, functionally, and legally distinct from the standard gauge railway. They argue that applying RDLF proceeds to a metre-gauge project is ultra vires the statute and violates the specific-purpose doctrine enshrined in Article 206(1)(a) of the Constitution. The Respondents counter that the Project is an integral operational component of the SGR system, designed to provide last-mile connectivity and enhance the commercial viability of the SGR. They argue for a purposive interpretation of the statutory purpose that would encompass feeder lines and complementary infrastructure.
26. On 12 th February 2026, subsequent to the filing of this petition and after the issuance of interim conservatory orders, the Leader of the Majority Party introduced the Miscellaneous Fees and Levies (Amendment) Bill, 2025 (National Assembly Bills No. 57 of 2025). Clause 3(a) of the Bill seeks to amend Section 8(3) of the principal Act by expanding the purpose of the levy to include, inter alia, "financing the development and construction of railway infrastructure" and "rehabilitation of railway transport infrastructure". The Bill underwent first reading on 12 th February 2026 and was committed to the Departmental Committee on Transport and Infrastructure for public participation, which closed on 20 th February 2026. The Bill has not yet been enacted into law.
27. The 7 th Respondent, by its second further affidavit sworn on 16 th February 2026, contends that this legislative development has effectively collapsed the substratum of the petition. The Petitioners, in response through the 1 st Petitioner's 3 rd further affidavit sworn on 20 th February 2026, argue that a pending Bill has no legal effect, cannot retrospectively validate past unconstitutional conduct, and does not address the numerous other constitutional violations pleaded in the petition, including procurement irregularities, public participation deficits, and the insolvency of the 1 st Respondent.
28. The issue of public participation with respect to the Project has been litigated previously. In Environment and Land Court Petition No. E028 of 2024, Samora Sikalieh (Being Chairman of and Suing in Public Interest and on behalf of the Members of Karen Langata District Association) v Kenya Railways Corporation & 5 others , the Environment and Land Court delivered judgment on 1 st July 2025. The learned judge, A. Omollo J, after considering extensive evidence of stakeholder meetings held between November 2023 and April 2024, held that the Respondents had conducted adequate public participation before the ESIA study report was prepared. The court further declined to nullify works undertaken prior to the issuance of the EIA licence, having regard to the public good served by the Project and the mitigation measures contained in the ESIA report.
29. The Respondents rely heavily on this judgment, invoking the doctrines of res judicata and issue estoppel. The Petitioners contend that the ELC petition addressed only environmental compliance issues, whereas the present petition raises distinct constitutional questions relating to public finance, procurement, and the validity of the RDLF, matters the ELC expressly declined to adjudicate.
THE PETITIONERS' LEGAL ARGUMENTS IN SUPPORT
30. The Petitioners' case, as articulated in their Notice of Motion dated 19 th December 2025, their affidavits, the 1 st Interested Party's replying affidavit, and their joint written submissions, is that the Project is being implemented in a manner that fundamentally subverts the constitutional architecture governing public finance, procurement, and public participation.
31. On the legal framework governing conservatory orders, the Petitioners submit that the threshold for grant of such orders is well settled in the Supreme Court decision in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR . They contend that conservatory orders are public law remedies distinct from private law injunctions, intended to preserve the subject matter of constitutional litigation and to uphold the adjudicatory authority of the court. They submit that the three-limb test requires demonstration of a prima facie case with a likelihood of success, a real danger that the petition will be rendered nugatory if orders are not granted, and consideration of public interest.
32. On the existence of a prima facie case, the Petitioners advance several grounds. First, they contend that the financing of the Project from the RDLF is ultra vires the statute. They draw attention to Section 8(3) of the Miscellaneous Fees and Levies Act, which limits the purpose of the fund to "construction and operation of a standard gauge railway network". They submit that a metre-gauge commuter line is technically, functionally, and legally distinct from a standard gauge railway, and that applying RDLF proceeds to such a project violates the specific-purpose doctrine under Article 206(1)(a) of the Constitution. They rely on the principle of statutory interpretation, expressio unius est exclusio alterius , arguing that the express limitation to standard gauge excludes other gauges and purposes.
33. Second, the Petitioners submit that the Project was commenced without specific parliamentary appropriation. They point to the 7 th Respondent's admission that no amount was allocated to the Project in FY 2023/24, a period during which construction works were already underway. They argue that internal Treasury approvals and the belated classification of funds as Appropriations-in-Aid in subsequent financial years cannot substitute for the exclusive constitutional power of Parliament to appropriate public funds under Articles 220 to 223. They rely on the principle that parliamentary approval must precede expenditure, and that post facto ratification cannot cure antecedent illegality.
34. Third, the Petitioners challenge the procurement process, contending that the single-sourcing of the 9th Respondent as contractor and the 10 th Respondent as consultant violates Article 227 of the Constitution, which mandates a system that is fair, equitable, transparent, competitive, and cost-effective. They argue that the justification of "standardization and compatibility" under Section 103(2)(d) of the Public Procurement and Asset Disposal Act is facially implausible where the contract is for a metre-gauge line and the prior contract was for a standard gauge railway. They note the absence of any evidence of tender evaluations, market analyses, or compatibility studies.
35. Fourth, the Petitioners submit that the Project was initiated without meaningful public participation. They rely on the correspondence exhibited in the 1 st Interested Party's affidavit, demonstrating repeated requests for information and engagement that were ignored or rebuffed. They argue that the stakeholder meetings relied upon by the respondents were information sessions conducted after the Project had already been commissioned and construction had commenced, rendering them retroactive box-ticking exercises rather than genuine consultation.
36. Fifth, the Petitioners raise the issue of the 1 st Respondent's financial insolvency. They point to audited financial statements showing accumulated losses of approximately Kshs.197 billion and negative equity of approximately Kshs.72 billion. They argue that assigning a Kshs.2.824 trillion project portfolio to such an entity is irrational and violates Article 201(d) of the Constitution, which mandates intergenerational equity and prudent use of public resources.
37. On the question of irreparable harm and the petition being rendered nugatory, the Petitioners submit that the harm is not speculative but occurring daily. They contend that continued construction will result in irreversible dissipation of contested public funds, irreversible ecological damage to Ngong Road Forest, and the creation of fait accompli that would render any eventual judgment in their favour an academic exercise. They argue that public funds, once unlawfully disbursed and expended, cannot practically be recovered.
38. On public interest, the Petitioners submit that the paramount public interest lies in upholding the Constitution, preventing unlawful use of public resources, and enforcing accountability before expenditure, not after. They argue that the Respondents’ invocation of sunk costs and public benefits turns constitutional logic on its head, as it would mean the larger the alleged illegality and the more money spent, the more immune it becomes to judicial review.
39. The Petitioners further address the procedural objections raised by the respondents. On res judicata , they contend that ELC Petition No. E028 of 2024 (supra) addressed only environmental licensing issues, whereas the present petition concerns public finance constitutionality, which was neither pleaded nor determined in that case. They rely on the principle that res judicata requires strict identity of parties, cause of action, and subject matter, citing Uhuru Highway Development Ltd v Central Bank of Kenya [1997] eKLR . They note that the ELC itself, at paragraph 107 of its judgment, acknowledged its lack of jurisdiction over financing matters and expressly recommended that the Petitioner seek recourse in the appropriate forum.
40. On jurisdiction and locus standi of the Petitioners, the Petitioners submit that statutory bodies such as the Public Procurement Administrative Review Board, the National Environment Tribunal, or the Commission on Administrative Justice lack jurisdiction to interpret the Constitution, invalidate statutes, or determine the constitutionality of public funds. They rely on the Supreme Court decision in Petition Number 42 of 2019: Kenya Vision 2030 Delivery Board v The Commission on Administrative Justice, the Attorney General & Eng. Judah Abekah, which stripped the CAJ of any binding adjudicative powers.
41. On the Miscellaneous Fees and Levies (Amendment) Bill, 2025, introduced after the filing of this petition, the Petitioners submit that a pending Bill has no legal force and cannot moot existing constitutional proceedings. They argue that the Bill, even if enacted, cannot retrospectively validate past unconstitutional expenditure or conduct, and that it does not address the numerous other constitutional violations pleaded in the petition. They contend that the timing of the Bill raises serious concerns of legislative interference with the judicial process, and that to permit such conduct would encourage constitutional violations followed by legislative whitewashing.
42. The Petitioners therefore pray that the conservatory orders issued on 20 th January 2026 be confirmed and upheld pending the hearing and determination of the petition, and that the contempt application be set down for hearing with directions for filing of verified evidence of compliance.
THE 1 ST INTERESTED PARTY'S CASE
43. The 1 st Interested Party supports the application through his replying affidavit sworn on 30 th December 2025 and his written submissions dated 8 th January 2026.
44. The 1 st Interested Party provides detailed evidence of the pre-feasibility and feasibility deficits in the Project. He annexes the Kenya Railways Corporation advertisement for consultancy services for feasibility studies, published in February 2025, which notably excludes Line 8 (the Riruta-Ngong corridor) from the scope of the proposed feasibility study. He argues that this omission, coupled with the lack of any pre-feasibility or feasibility studies conducted by the Respondents, raises serious concerns regarding prudent use of public funds and adherence to the Public Investment Management framework.
45. It was submitted that the Petitioners have demonstrated how the Respondents have violated the constitutional values and due legal process required to be followed prior to the commencement and implementation of the project thereby meeting the threshold for the grant of conservatory orders being sought.
46. On the financial aspects, the 1 st Interested Party highlights the material discrepancies in the reported contract sums and sources of funding. He notes that the Auditor-General's Report indicates estimated costs of Kshs.11.5 billion from the RDLF, while the Estimates of Development Expenditure show allocations totalling approximately Kshs.5 billion over three financial years, and the Senate Hansard records construction costs of Kshs.8.26 billion and land acquisition costs of Kshs.2.8 billion from the Government of Kenya. He argues that this lack of clarity undermines transparency and accountability.
47. On access to information, the 1 st Interested Party details the extensive correspondence between KLDA and the respondents, spanning from June 2023 to August 2025, seeking information on feasibility studies, construction plans, budgetary approvals, and procurement documentation. He annexes copies of letters, meeting minutes, and the response from the Commission on Administrative Justice. He argues that the Respondents’ persistent failure to disclose information violates Article 35 of the Constitution and Sections 5, 8, and 9 of the Access to Information Act.
48. On the doctrine of exhaustion, the 1 st Interested Party submits that the administrative mechanism under Section 23 of the Access to Information Act proved ineffectual, as the Commission on Administrative Justice neither compelled disclosure nor issued binding directions. He argues that the issues raised in the petition transcend administrative disputes and involve systemic constitutional violations that the CAJ lacks jurisdiction to adjudicate. Reliance was placed on the decision in Katiba Institute v Presidents Delivery Unit & 3 others [2017] eKLR and Khalifa & another v Principal Secretary, Ministry of Transport & 4 others; Katiba Institute & another (Interested Parties) [2022] eKLR in support of his arguments.
49. The court was urged to allow the Petitioners’ Application dated 19 th December 2025 as prayed to prevent imminent constitutional violations, to safeguard public resources and uphold public confidence in governance and lawful decision making.
THE 1 ST AND 2 ND RESPONDENTS’ CASE
50. The 1 st and 2 nd Respondents oppose the application through the replying affidavit of Stanley Gitari, the replying affidavit of Engineer John Maina, and their consolidated written submissions.
51. On the legal principles governing conservatory orders, the 1 st and 2 nd Respondents rely on the Supreme Court decision in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others (supra) and the decision in Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others [2015] eKLR . They submit that the applicant must demonstrate an arguable prima facie case with a likelihood of success, that in the absence of the orders the petition will be rendered nugatory, and that public interest favours the grant of the orders.
52. The 1 st and 2 nd Respondents contend that the Petitioners have failed to demonstrate a prima facie case. They argue that the RDLF was lawfully established by Parliament and its application to the Project is within the statutory purpose. They annex a letter dated 25 th November 2024 from the Principal Secretary, National Treasury, granting approval for the Project. They further annex a letter dated 20 th July 2022 granting approval for Phase 1 implementation at a cost of Kshs.8.2 billion, and a letter dated 10 th July 2024 approving the pre-feasibility study for Phases 2 and 3.
53. On the specific-purpose doctrine, the 1 st and 2 nd Respondents argue that the Project is an integral component of the SGR system, designed to provide last-mile connectivity and enhance the commercial viability of the SGR. They submit that the Project forms part of the Nairobi Metropolitan Mass Transit Plan and the Kenya Railways Strategic Plan 2022-2027, and that the inter-linkage between the MGR and SGR is essential for optimal operation of the national railway network.
54. On public participation, the 1 st and 2 nd Respondents rely on the judgment in ELC Petition No. E028 of 2024, wherein the court held that adequate public participation was conducted. They annex the ESIA study report, which documents stakeholder meetings held between November 2023 and April 2024, and the attendance lists evidencing participation by diverse groups including residents, business owners, and institutional representatives. They argue that the issue of public participation has been conclusively determined and cannot be re-litigated under the doctrine of res judicata .
55. On the question of parliamentary appropriation, the 1 st and 2 nd Respondents submit that the Project is funded through the RDLF, which is a public fund established by an Act of Parliament. They argue that the National Treasury approvals annexed to their affidavits constitute sufficient authorization, and that the funds are disbursed through the Integrated Financial Information Management System, which ensures accountability and transparency.
56. On the balance of convenience and public interest, the 1 st and 2 nd Respondents submit that the Project is 40.5% complete, that substantial public funds have already been expended, and that halting the Project would occasion significant financial loss through contractual penalties and liquidated damages. They argue that the public interest lies in completion of the infrastructure, which will decongest Ngong Road, reduce transport costs, and create employment opportunities.
57. The 1 st and 2 nd Respondents further oppose the contempt application, contending that they have complied with the court orders by de-mobilising heavy construction machinery and securing the site. They argue that the activities observed post-order were limited to safety measures and site protection, which do not constitute continuation or progression of construction works.
THE 3 RD , 4 TH , 5 TH AND 6 TH RESPONDENTS’ CASE
58. The 3 rd , 4 th , 5 th and 6 th Respondents opposed the application vide the replying affidavit of the 5 th Respondent sworn by Mohamed Daghar, C.B.S and grounds of opposition dated 30 th December 2025. They contend that the Application does not meet the test for grant of conservatory orders as set out in the Supreme Court decision in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others (supra). They argue that in this interim stage, the Court should navigate a thin line by avoiding to delve onto the merits of the Petition prematurely before hearing the parties on merit but at the same time having an overview of the substance of the Petition itself and whether a case is made on a prima facie basis to warrant conservatory orders.
59. The Respondents asserts that the application is made on the basis of a misperception of a law since the Railway Development Levy Fund is not a novel establishment but it was put in place under Miscellaneous Levies Act, 2016. It is also argued that the provisions of this Act are entitled to enjoy a presumption of constitutionality, which can be affirmed only after a comprehensive hearing. Relying on the decision of the Supreme Court in SC Petition Nos. E031, E032, and E033 of 2024 , the Respondents argue that the Applicants have not proven a prima facie case, and they have not established that the impugned Act presents an impending threat to life and limb, which would justify its suspension at such an interim stage. Further reliance was placed on the decision in Attorney General & another v Coalition for Reform and Democracy & 7 others [2015] KECA 994 (KLR) in support of their arguments.
60. It is the Respondents case that the public interest is against the granting of the conservatory orders. It is argued that the fund was established as a result of policy objectives as stipulated in the Integrated National Transport Policy, and its execution which has already attained high level has a great purpose to the people. Stopping the fund at this point would also lead to fiscal constraints and cripple major projects to improve the railway infrastructure, which will cause the maximum harm to the largest number of people.
61. The Court was urged to allow the Petition to come to a full hearing, at which time the substratum of the case will be within the reach of the Court, by sustaining the presumption of regularity in government decisions. Therefore, they prayed that the Court should not grant the conservatory orders sought by the Petitioners.
THE 7 TH RESPONDENT'S CASE
62. The 7 th Respondent opposes the application through the replying affidavit of Samuel J. Njoroge sworn on 27 th January 2026, a further affidavit sworn on 8 th February 2026, a second further affidavit sworn on 16 th February 2026, and written submissions dated 4 th February 2026.
63. In its initial replying af
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