Background and Factual Context
Origin of the Petition
1. . Constitutional Petition No. E843 of 2025 was filed on 19th December 2025. It was brought in the public interest pursuant to Articles 2(1)(2) and (4), 3(1), 4(2), 10(1),19(1&2), 20, 21, 22, 23, 24, 35, 40, 42, 23,24,35,40,42,47, 48, 50(1), 73(1),2(c), 129, 153, 165 (3), 159, 160(1), 162(2)(b), 165(3), 201, 201,204,206, 206 (2) (3), 209(1), 220, 221, 221,222, 223, 226, 223,226,227(1)(2), 232, 249, 249,258(1), and 259(1) of the Constitution of Kenya, 2010. The Petition was filed by Mr Okiya Omtatah Okoiti, together with Bernard Muchiri Muchere and Naomi Nyakerario Misati. The Karen Langata District Association (KLDA), represented by its chairman, Samora Sikalieh, subsequently joined as the 1st Interested Party in the public interest and on behalf of approximately 32,000 residents of the Karen area. Katiba Institute and the Law Society of Kenya were also joined as the 2nd and 3rd Interested Parties, respectively..
The Subject Matter — The Riruta – Ngong Commuter Metre Gauge Railway Project
2. The Petition concerns the Riruta–Ngong Commuter Metre Gauge Railway Project (hereinafter "the Project"), a 12.5-kilometre metre-gauge commuter railway line linking Riruta, Karen, Bulbul, and Ngong across Nairobi and Kajiado Counties. The Project was publicly commissioned by President William Ruto on 15th December 2023.
3. The contract was awarded to the 9th Respondent, China Road and Bridge Corporation (CRBC), as the contractor, and to the 10th Respondent, APEC Consortium Co. Ltd, as the supervisor, both reportedly through direct procurement. Construction commenced immediately upon commissioning in December 2023.
4. The Project forms part of a broader Kes 2.824 trillion railway project pipeline, approved by the National Executive for implementation by the 1st Respondent, Kenya Railways Corporation (KRC). According to KRC's audited financial statements, the Project's cost is estimated at Kes 11,505,806,368, funded by the Railway Development Levy Fund (RDLF).
Reliefs Sought
5. The Petitioners seek the following reliefs from the Court:
i A declaration that the RDLF and its enabling legislation are unconstitutional, null, and void ab initio;
ii A declaration that the approval, commissioning, financing, and/or implementation of the Riruta–Ngong Project are unconstitutional, unlawful, and null and void ab initio;
iii Prohibitory orders restraining further construction or disbursements of funds for the Project;
iv An order restraining the National Treasury from releasing any funds for the broader Kes 2.824 trillion project pipeline without parliamentary appropriation;
v An order directing the Auditor General to conduct a special forensic audit of the RDLF and KRC's finances, with findings submitted to the DPP and Parliament;
vi An order directing the National Treasury to wind up the RDLF and remit any remaining balances to the Consolidated Fund;
vii Costs of the proceedings.
Issues Raised in the Petition
Unconstitutionality of the RDLF and unlawful diversion of its funds
6. The Petitioners challenge the constitutional validity of Section 8 of the Miscellaneous Fees and Levies Act No. 29 of 2016 (Revised 2023) and of the Railway Development Levy Fund (RDLF) established thereunder. The RDLF was created by Section 6 of the Finance Act No. 38 of 2013, exclusively "for the construction of a standard gauge railway network in order to facilitate the transportation of goods." This was later extended by the Tax Laws (Amendment) Act No. 2 of 2020 to include the "operation" of the SGR.
7. The Petitioners argue that the RDLF, by collecting a statutory levy from importers and keeping the fund outside the Consolidated Fund, violates Article 206(1)(a) of the Constitution, which requires all public money to be paid into the Consolidated Fund unless there is a reasonable justification for a separate account.
8. The Petitioners further allege that approximately Kes 211 billion has been diverted from the RDLF for purposes outside its statutory mandate, including Kes 33.5 billion loaned to the Petroleum Development Levy Fund, Kes 37.4 billion budgeted for the already-completed Mombasa–Nairobi SGR, and now Kes 11,505,806,368 applied to a metre-gauge commuter railway. These purposes were never contemplated by the RDLF's enabling legislation. The Petitioners aver that the RDLF is unconstitutional, null, and void ab initio to the extent it was established contrary to Articles 206(1) and 209(1)(c) of the Constitution.
Whether the 2026 Amendment Act cures past violations
9. The Petitioners acknowledged that the Miscellaneous Fees and Levies (Amendment) Act, 2026, assented to on 13th March 2026 and commenced on 27th March 2026, expanded the scope of the RDLF to encompass broader railway infrastructure projects. However, they argued:
(a) The Amendment Act has no retrospective effect and therefore cannot validate expenditure incurred before 27th March 2026;
(b) All impugned actions, including the contract award (September 2022), commissioning (December 2023), and construction commencement (December 2023), as well as all expenditures in 2024 and 2025 — predate the Amendment Act;
(c) The Amendment Act is itself unconstitutional for violating Articles 206(1)(a), 211, 221–223, and 10 of the Constitution; and
(d) Even if valid, the Act creates an entirely new governance architecture and the Respondents would need to undertake a fresh procurement process under it.
Absence of parliamentary appropriation and violation of public finance rules
10. The Petitioners alleged that the Project was approved, funded, and implemented in flagrant breach of the constitutional public finance framework.
11. The Petitioners contended that the 7th Respondent (National Assembly) admitted in its pleadings that there was no budgetary allocation for the Riruta–Ngong Project in Financial Year 2023/2024, despite construction being actively underway. It was averred that continued construction violated Articles 206, 220, 221, 222, and 223 of the Constitution, which vest exclusive authority over public expenditure in Parliament and prohibit expenditure outside approved estimates.
12. The Petitioners further argue that the National Executive's approval of a Kes 2.824 trillion project pipeline for KRC, which has accumulated losses of Kes 197 billion and negative equity of Kes 72 billion, without a financing plan violates Article 201(d) on prudent and responsible use of public resources and intergenerational equity.
Unconstitutional single-sourcing of contractors (Articles 227 and PPADA)
13. The Petitioners alleged that CRBC (9th Respondent) and APEC Consortium (10th Respondent) were procured through direct single-source procurement without open competitive tendering, in violation of Article 227 of the Constitution and Section 137(1) and (3) of the Public Procurement and Asset Disposal Act (PPADA). Section 137(1) and (3) requires procuring entities to publicize contracts. According to the Petitioners, this was never done in respect of the APEC Consortium contract.
14. The Respondents relied on Section 103(2)(d) of PPADA, which permits single-sourcing for standardization and compatibility with existing assets. The Petitioners challenged this justification on the basis that the Riruta–Ngong Project is a metre-gauge commuter line while the SGR is a standard-gauge railway with entirely different technologies, track widths, signalling systems, and operational parameters.
15. They further averred that there is no standardization between them. Further, the Section 103(2)(d) conditions (limited scale relative to the original procurement, reasonable price, and no suitable alternative) were not satisfied, and no mandatory documentation for direct procurement under Section 104 of PPADA was produced.
Failure to conduct mandatory pre-feasibility and feasibility studies for the project
16. The Petitioners argued that the Project, classified as a Mega Project with a cost exceeding Kes 5 billion, was commissioned and constructed without the mandatory pre-feasibility and feasibility studies required under the Public Finance Management (Public Investment Management) Regulations, 2022 (PIM Regulations). Regulation 20(4) requires that such a study assess, at a minimum: market and demand; technical and engineering feasibility; environmental impacts; human resource capacity; financial and economic viability; social impact; and risk analysis.
17. They stated that in February 2025, over 14 months after commissioning, KRC advertised for consultancy services to undertake a feasibility study for the Nairobi Commuter Rail Network, explicitly excluding Line 8 (the Riruta–Ngong corridor) from the scope. This, the Petitioners argued, demonstrated that no feasibility study was ever undertaken in respect of the Project. They further stated that the Respondents' failure to produce any feasibility study despite the mandatory production order issued on 19th March 2026 reinforces this conclusion.
Violation of the right to access information (Article 35)
18. The Petitioners and the KLDA made multiple specific written requests for project documents between June 2023 and April 2025, including letters dated 30th June 2023, 11th January 2024, 16th February 2024, 19th March 2024, 25th March 2024, 2nd May 2024, and 30th April 2025.
19. These requests were either unanswered or responded to with non-substantive generalities. When KLDA escalated to the Commission on Administrative Justice (CAJ) in June 2025, the CAJ's non-binding recommendation of 4th August 2025 merely advised re-submission of requests and did not compel disclosure.
20. The Court issued a mandatory production order on 19th March 2026 requiring production of eight categories of documents, feasibility studies, EPC contract, procurement records, parliamentary approvals, public participation records, Cabinet memoranda, financing instruments, and ESIA reports — within 30 days. As at the date of the hearing on 3rd June 2026, 75 days after the deadline, no documents had been produced. The Petitioners submitted that this constitutes a violation of Article 35 of the Constitution.
Lack of meaningful and timely public participation
21. The Petitioners argued that the Project was commissioned and construction commenced before any genuine public participation took place, in breach of Articles 10, 201, and 232 of the Constitution. The KLDA attended only one meeting arranged by KRC on 12th April 2024, well after the project had been commissioned and construction had commenced. At that meeting, KRC had not yet conducted an Environmental and Social Impact Assessment (ESIA), and the NEMA environmental licence was not issued until 19th September 2024.
22. The Petitioners stated that public participation conducted retroactively, after irreversible decisions had been made, is constitutionally defective. KRC's letter of 19th October 2023 expressly assured stakeholders that engagement would occur during the design development stage and the ESIA and Resettlement Action Plan (RAP) processes, thereby creating legitimate expectations that were wholly frustrated. No alternative routes were identified, evaluated, or disclosed to the public as required under the PIM Regulations.
Environmental violations (Articles 42, 69, and 70)
23. The Petitioners and KLDA challenged the Project's environmental compliance, arguing that construction commenced without the required ESIA and NEMA licence. The NEMA licence was issued on 19th September 2024, about nine months after construction began.
24. The ESIA public participation meetings were held between January and April 2024, after construction had commenced. The Petitioners further allege that the Project traverses the ecologically sensitive Karen area and encroaches on Ngong Forest, both areas with significant biodiversity and tree cover, without adequate mitigation measures or consideration of less destructive alternative routes.
1st Respondents (KRC's) Legal and Financial Incapacity
25. The Petitioners challenge the legal and financial capacity of KRC to undertake the Project and the broader Kes 2.824 trillion project pipeline. KRC's audited financial statements (Exhibit OOO-1, Part 2) show accumulated losses of Kes 197 billion, negative equity of Kes 72 billion, and work-in-progress of approximately Kes 136 billion, six times KRC's own-source revenue of Kes 21 billion.
26. The Petitioners argued that authorizing a technically insolvent entity with negative equity to implement a multi-trillion infrastructure portfolio, without a credible financing plan, violates Sections 8, 9, 11, 11A, 12, and 13(2)(a)(3)(4) of the Kenya Railways Corporation Act (Cap 397), Sections 11 and 12 of the State Corporations Act, and Article 201(d) of the Constitution.
Petitioners Submissions;
27. The Petitioners appeared in person and filed written and oral submissions. The 2nd Petitioner also filed Rebuttal Submissions on 1st June 2026 in reply to the Written Submissions of the 1st, 2nd, and 9th Respondents. The Petitioners' submissions advanced the following arguments:
Admissibility of Evidence
28. The Petitioners submitted that the Respondents' objections to their exhibits (OOO-1, BMM, BMM-5) as uncertified under Sections 79–81 of the Evidence Act were legally flawed on five grounds: (i) The Respondents themselves relied on uncertified documents in their own Replying Affidavits and could not approbate and reprobate; (ii) The 1st to 8th Respondents as custodians of the public documents had waived the objection by not raising it, and the 9th Respondent, a private contractor, had no standing to assert evidentiary objections on behalf of state organs; (iii) The Supreme Court decision in Kenya Railways Corporation v Okiya Omtatah [2023] KESC 35 (KLR) was distinguishable, as it concerned clandestinely obtained internal correspondence whereas the Petitioners' documents were Auditor-General reports tabled in Parliament (that are public documents under Article 229(7)), Appropriation Acts, KRC's audited financial statements, and Gazette Notices; (iv) Article 35(3) imposes a positive duty on the State to publish important information having failed to do so, the Respondents could not hide behind certification technicalities; and (v) Under Article 50(4), evidence is excluded only if admission would render the trial unfair, and no such prejudice arose here.
Res Judicata — No Identity of Issues
29. The Petitioners argued that the doctrine of res judicata does not bar the Petition. The 2023 Supreme Court SGR case concerned SGR Phase 1 procurement under a government-to-government arrangement and did not determine: the constitutionality of the RDLF under Article 206; the legality of financing a metre-gauge railway from the RDLF; the legality of the Riruta–Ngong procurement; KRC's approval of the Kes 2.824 trillion pipeline despite insolvency; or the constitutionality of the 2026 Amendment Act. The ELC Petition No. E028 of 2024 was confined to environmental and land-use matters under EMCA, and the ELC expressly declined jurisdiction over public finance, procurement, and parliamentary appropriation questions, directing those matters to the appropriate forum. There was accordingly no identity of subject matter.
The 2026 Amendment Act Does Not Render the Petition Moot
30. The Petitioners advanced five arguments: (i) The Amendment Act has no retrospective effect; all impugned actions predate 27th March 2026; (ii) The Amendment Act is itself unconstitutional and violated Articles 206(1)(a), 211, 221–223, and 10; (iii) The core grievances remain the RDLF's exclusion from the Consolidated Fund, procurement irregularities, lack of public participation, KRC's insolvency, and the Ksh.211 billion diversion; (iv) The Respondents cannot simultaneously argue that the pre-2026 law authorised the project and that the 2026 Amendment Act was needed to authorize it; they cannot approbate and reprobate; and (v) Even if the Act were valid, the Respondents must procure the project afresh under the new governance architecture it establishes.
Single-Sourcing — The Standardization Defence
31. The Petitioners faulted the "standardization" defence under Section 103(2)(d) of PPADA on three grounds: (i) The Riruta–Ngong Project is metre-gauge while the SGR is standard-gauge, entirely different and incompatible technologies with different track widths, signalling, and operations. The existing Nairobi CBD MGR network, to which the Riruta–Ngong line connects, was not built by CRBC. There is no technical standardization; (ii) Section 103(2)(d) imposes cumulative conditions limited to the size of procurement relative to the original, reasonable price, and unsuitability of alternatives — none of which was satisfied. SGR Phase 1 cost approximately Kes.500 billion; the Riruta–Ngong project is not "limited" by any measure; no price comparisons were produced; and dozens of competent global rail contractors existed; and (iii) CRBC is a private international EPC contractor, not a state corporation acting on behalf of a foreign government. The government-to-government exemption from procurement rules, which the Supreme Court upheld in the 2023 SGR case, does not apply here.
Separation of Powers — Policy Versus Constitutional Compliance
32. The Petitioners submitted that the Petition did not seek to override policy choices but to enforce constitutional boundaries on the exercise of power. Relying on Attorney General & 2 others v Ndii & 79 others [2022] KESC 8, the Petitioners submitted that separation of powers does not immunize unconstitutional conduct from judicial review. The specific constitutional violations pleaded — exclusion of revenue from the Consolidated Fund without reasonable justification (Article 206); procurement without transparency or competition (Article 227); expenditure without parliamentary appropriation (Articles 206, 221–223); and absence of public participation (Articles 10, 35, 47) — are justiciable constitutional questions, not policy preferences. It was urged that the respondents' authorities on separation of powers (OUTA; Nottinghamshire County Council; SG v Secretary of State) concerned challenges to budgetary wisdom rather than constitutional process.
Public Finance — KRC's Insolvency and the Ksh.2.824 Trillion Pipeline
33. The Petitioners placed before the Court documentary evidence showing that: KRC has accumulated losses of Kes.197 billion and negative equity of Kes.72 billion; the RDLF has been diverted from its mandate, including a Kes.33.5 billion loan to the Petroleum Development Levy Fund; the National Executive approved a Kes.2.824 trillion project pipeline for an insolvent entity without a financing plan; the National Assembly allocated zero funds to the Project in FY 2023/2024; KRC's work-in-progress of Kes.136 billion is six times its own-source revenue; and approximately Kes.5.2 billion was paid to CRBC as irregular contra entries and Kes.18.6 billion to Afristar as pre-operation costs from the RDLF. It was submitted that approving a multi-trillion project pipeline for an insolvent entity without a financing plan is irrational and violates Article 201(d).
Public Participation — Retroactive and Constitutionally Defective
34. The Petitioners argued that the ELC case determined public participation only for environmental licensing under EMCA, not for the policy decision to fund the Project from the RDLF, the procurement decision, or the budgetary allocation. Relying on Mui Coal Basin Local Community v PS Ministry of Energy [2015] eKLR, the Petitioners submitted that public participation must occur before irreversible decisions are taken. ESIA public participation meetings were held only between January and April 2024, well after commissioning and construction had begun.
The Fait Accompli Defence
35. The Petitioners rejected the 9th Respondent's proportionality argument based on 40% completion as a classic fait accompli defence: "we have already done the illegal act, so you cannot stop us." It was urged that accepting the said defence would produce an absurd constitutional principle: the further an unconstitutional project progresses, the less accountable it becomes, effectively enabling any public body to evade constitutional scrutiny by rapid implementation. Relying on All Pay (South Africa), the Petitioners noted that the South African Constitutional Court declared the contract invalid even at an advanced stage, merely suspending the declaration to allow fresh procurement. They urged that the 9th Respondent had not provided evidence that verified the 40% completion figure even after the Court issued mandatory production orders.
Non-Compliance with the Production Order — Adverse Inferences
36. The Petitioners submitted that the 1st and 2nd Respondents' refusal to comply with the Court's mandatory production order of 19th March 2026, 75 days after the deadline, with no documents produced, no application for an extension, and no explanation entitled the Court, under Section 112 of the Evidence Act, to draw the strongest adverse inferences, including that no proper feasibility study exists; that the procurement was irregular; that no parliamentary appropriation was obtained; that the financing arrangements are unlawful; and that the contract with CRBC is irregular.
Key Constitutional and Public Law Doctrines
37. The Petitioners submitted that a convergence of constitutional and public law doctrines supported the grant of the reliefs sought: illegality (all acts are void ab initio for lack of lawful authority); derivative unconstitutionality (all actions flowing from the unconstitutional RDLF are likewise unconstitutional); legitimate expectation (taxpayers expected the levy to fund only SGR construction); public trust (RDLF monies are held in trust for the people of Kenya, and their diversion breaches fiduciary obligations); restitution and unjust enrichment (CRBC, APEC, and Afristar received billions under irregular contracts and must make restitution); and res ipsa loquitur (the facts speak for themselves).
Responses and Submissions Filed by the Respondents and the Interested Parties
1st and 2nd Respondents - Kenya Railways Corporation (KRC) and the Board of Directors
38. The 1st and 2nd Respondents filed a replying affidavit dated 27th January 2026 and written submissions dated 29th May 2026 and further written submissions dated 8th June 2026 in opposition to the Petition and Oral amendment of the Petition. The Replying Affidavit and Submissions state as follows:
Procedural Objection — Challenge to section 8(4H) not properly before the Court
39. The 1st and 2nd Respondents raised a threshold procedural objection against the 1st Petitioner's attempt in oral submissions to invite the Court to pronounce on the constitutionality of Section 8(4H) of the Miscellaneous Fees and Levies (Amendment) Act, 2026. By a Ruling of 15th May 2026, the Court dismissed the Petitioners' Notice of Motion dated 24th April 2026 seeking leave to file an Amended Petition introducing that challenge. Accordingly, the challenge to the 2026 Amendment Act formed no part of the initial pleadings, and the Court could not adjudicate a cause of action not properly before it. The Respondents cited the Supreme Court's decision in Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR for the proposition that a party is bound by its pleadings.
Constitutionality of Section 8(4H) (in the Alternative)
40. The 1st and 2nd Respondents submitted that Section 8(4H) does not violate Articles 201, 211, or 220(1) of the Constitution. Parliament had, through legislation, validly authorized the RDLF Board to leverage up to 90% of the fund within prescribed limits. The impugned leveraging mechanism was authorized within the constitutional framework and was subject to parliamentary oversight through the broader RDLF governance structure.
Validity of the 2026 Amendment Act — Legislative Process Was Constitutionally Regular
41. The 1st and 2nd Respondents submitted that the 2026 Amendment Act was validly enacted by the National Assembly alone, without requiring Senate concurrence. As a national fiscal measure regulating a national levy fund and railway infrastructure financing, it did not constitute a "Bill concerning county government" within the meaning of Article 110(1) of the Constitution. Relying on The Senate & 3 Others v Speaker of the National Assembly & 10 Others, Petition No. 19 (E027) of 2021 KESC 11 (KLR), they argued that the Senate concurrence process under Article 110(3) is triggered only when a question arises as to whether a Bill concerns county government. The Speaker of the National Assembly was constitutionally entitled to determine that the 2026 Amendment Act did not require Senate involvement, as it related solely to national fiscal and infrastructure matters within the Fourth Schedule.
Presumption of Constitutionality of Statutes
42. The 1st and 2nd Respondents invoked the strong presumption that every Act of Parliament is constitutional until declared otherwise, placing the heavy burden of displacing that presumption on the Petitioners. They relied on Institute of Social Accountability & another v National Assembly & 4 others [2015] eKLR; Kidero v Muthaura & 4 others (Petition 372 of 2017) [2023] KEHC 24447; Molline Traders Limited & another v Tourism Regulatory Authority & 4 others [2020] eKLR; and Kamau v Attorney General & 14 others (Constitutional Petition 244 of 2019) [2021] KEHC 450. They submitted that the petitioners had failed to discharge this burden.
43. The 1st and 2nd Respondents urged the Court to: (i) decline to make any finding on the constitutionality of Section 8(4H), as the challenge was procedurally impermissible; (ii) in the alternative, hold that Section 8(4H) does not violate Articles 201, 211, or 220(1); and (iii) hold that the 2026 Amendment Act was validly enacted by the National Assembly without requiring Senate concurrence. They characterized the Petitioners' claim for special damages as an afterthought devoid of evidentiary foundation, and urged the Court to dismiss the Petition with costs.
4th, 5th, 6th Respondents;
Lawful Sovereign Financial Mobilization and Parliamentary Oversight
44. The 4th, 5th, and 6th Respondents filed joint skeletal submissions dated 9th June 2026, asserting that the Petitioners fundamentally misunderstand the constitutional division of labour in resource mobilization. Their position rests on three arguments:
1. The National Government borrowed funds from the Exim Bank to finance the capital development of the national railway infrastructure network — a legitimate exercise of sovereign borrowing within the Executive's constitutional mandate.
2. The 4th Respondent (National Treasury) is the primary Ministry constitutionally and statutorily responsible for mobilizing financial resources for structured repayment of those loans and for allocating them toward active public utility. The Treasury was acting within its core mandate.
3. The entire credit mobilization and loan repayment matrix was fully sanctioned by the 7th Respondent (National Assembly). Sovereign debt commitments were explicitly vetted and approved by the legislature through statutory channels, completely neutralizing the Petitioners' claims of unvetted or irregular debt exposure.
45. They contended that the judiciary lacks the institutional capacity or constitutional mandate to manage public debt, supervise external credit facilities, or micromanage treasury repayment timelines. When the National Treasury acts under parliamentary authorization to secure and repay infrastructure financing, its decisions constitute high-level economic policy and warrant judicial deference.
Lawfulness of Direct Procurement of CRBC and APEC Consortium
46. In response to submissions that CRBC and APEC Consortium were unconstitutionally single-sourced without open competitive tendering, which alleged action was violative of Article 227 of the Constitution and Sections 103(2)(d) and 137(1) and (3) of the Public Procurement and Asset Disposal Act (PPADA) and that the standardization defence was inapplicable because the Riruta–Ngong Project is metre-gauge while the SGR is standard-gauge, fundamentally incompatible technologies, the Attorney General submitted that the project was lawful.
47. The 4th, 5th and 6th Respondents submitted that the procurement strictly complied with Section 103(2)(d) of PPADA, which permits direct procurement for reasons of technical standardization or compatibility with existing infrastructure. Their justification rested on three arguments:
1. CRBC was the principal contractor for SGR Phase 1 (Mombasa–Nairobi) and Phase 2A (Nairobi–Naivasha). Its engagement for the Riruta–Ngong Project continues an existing contractual and operational relationship.
2. APEC Consortium served as the Client Engineer that designed, reviewed, and supervised construction for Kenya Railways across all SGR phases. Its engagement as Project Supervisor draws on institutional knowledge of the railway network's engineering standards.
3. The Riruta–Ngong Project functions as a last-mile commuter connection aggregating passenger traffic for the main SGR terminals. Using the existing engineering teams was an objective operational necessity to ensure seamless grid compatibility across the national rail network.
48. They relied on the Court’s decision in High Court of Kenya, Public Procurement Administrative Review Board & another v Republic & 2 others ex-parte China Road & Bridge Corporation: Open competitive tendering is not an inflexible rule where a contractor possesses singular, proprietary technical layout continuity of an ongoing transport corridor network. Direct procurement under the standardization exemption is legally valid and safeguards public funds from fragmentation
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Origin of the Petition
1. . Constitutional Petition No. E843 of 2025 was filed on 19th December 2025. It was brought in the public interest pursuant to Articles 2(1)(2) and (4), 3(1), 4(2), 10(1),19(1&2), 20, 21, 22, 23, 24, 35, 40, 42, 23,24,35,40,42,47, 48, 50(1), 73(1),2(c), 129, 153, 165 (3), 159, 160(1), 162(2)(b), 165(3), 201, 201,204,206, 206 (2) (3), 209(1), 220, 221, 221,222, 223, 226, 223,226,227(1)(2), 232, 249, 249,258(1), and 259(1) of the Constitution of Kenya, 2010. The Petition was filed by Mr Okiya Omtatah Okoiti, together with Bernard Muchiri Muchere and Naomi Nyakerario Misati. The Karen Langata District Association (KLDA), represented by its chairman, Samora Sikalieh, subsequently joined as the 1st Interested Party in the public interest and on behalf of approximately 32,000 residents of the Karen area. Katiba Institute and the Law Society of Kenya were also joined as the 2nd and 3rd Interested Parties, respectively..
The Subject Matter — The Riruta – Ngong Commuter Metre Gauge Railway Project
2. The Petition concerns the Riruta–Ngong Commuter Metre Gauge Railway Project (hereinafter "the Project"), a 12.5-kilometre metre-gauge commuter railway line linking Riruta, Karen, Bulbul, and Ngong across Nairobi and Kajiado Counties. The Project was publicly commissioned by President William Ruto on 15th December 2023.
3. The contract was awarded to the 9th Respondent, China Road and Bridge Corporation (CRBC), as the contractor, and to the 10th Respondent, APEC Consortium Co. Ltd, as the supervisor, both reportedly through direct procurement. Construction commenced immediately upon commissioning in December 2023.
4. The Project forms part of a broader Kes 2.824 trillion railway project pipeline, approved by the National Executive for implementation by the 1st Respondent, Kenya Railways Corporation (KRC). According to KRC's audited financial statements, the Project's cost is estimated at Kes 11,505,806,368, funded by the Railway Development Levy Fund (RDLF).
Reliefs Sought
5. The Petitioners seek the following reliefs from the Court:
i A declaration that the RDLF and its enabling legislation are unconstitutional, null, and void ab initio;
ii A declaration that the approval, commissioning, financing, and/or implementation of the Riruta–Ngong Project are unconstitutional, unlawful, and null and void ab initio;
iii Prohibitory orders restraining further construction or disbursements of funds for the Project;
iv An order restraining the National Treasury from releasing any funds for the broader Kes 2.824 trillion project pipeline without parliamentary appropriation;
v An order directing the Auditor General to conduct a special forensic audit of the RDLF and KRC's finances, with findings submitted to the DPP and Parliament;
vi An order directing the National Treasury to wind up the RDLF and remit any remaining balances to the Consolidated Fund;
vii Costs of the proceedings.
Issues Raised in the Petition
Unconstitutionality of the RDLF and unlawful diversion of its funds
6. The Petitioners challenge the constitutional validity of Section 8 of the Miscellaneous Fees and Levies Act No. 29 of 2016 (Revised 2023) and of the Railway Development Levy Fund (RDLF) established thereunder. The RDLF was created by Section 6 of the Finance Act No. 38 of 2013, exclusively "for the construction of a standard gauge railway network in order to facilitate the transportation of goods." This was later extended by the Tax Laws (Amendment) Act No. 2 of 2020 to include the "operation" of the SGR.
7. The Petitioners argue that the RDLF, by collecting a statutory levy from importers and keeping the fund outside the Consolidated Fund, violates Article 206(1)(a) of the Constitution, which requires all public money to be paid into the Consolidated Fund unless there is a reasonable justification for a separate account.
8. The Petitioners further allege that approximately Kes 211 billion has been diverted from the RDLF for purposes outside its statutory mandate, including Kes 33.5 billion loaned to the Petroleum Development Levy Fund, Kes 37.4 billion budgeted for the already-completed Mombasa–Nairobi SGR, and now Kes 11,505,806,368 applied to a metre-gauge commuter railway. These purposes were never contemplated by the RDLF's enabling legislation. The Petitioners aver that the RDLF is unconstitutional, null, and void ab initio to the extent it was established contrary to Articles 206(1) and 209(1)(c) of the Constitution.
Whether the 2026 Amendment Act cures past violations
9. The Petitioners acknowledged that the Miscellaneous Fees and Levies (Amendment) Act, 2026, assented to on 13th March 2026 and commenced on 27th March 2026, expanded the scope of the RDLF to encompass broader railway infrastructure projects. However, they argued:
(a) The Amendment Act has no retrospective effect and therefore cannot validate expenditure incurred before 27th March 2026;
(b) All impugned actions, including the contract award (September 2022), commissioning (December 2023), and construction commencement (December 2023), as well as all expenditures in 2024 and 2025 — predate the Amendment Act;
(c) The Amendment Act is itself unconstitutional for violating Articles 206(1)(a), 211, 221–223, and 10 of the Constitution; and
(d) Even if valid, the Act creates an entirely new governance architecture and the Respondents would need to undertake a fresh procurement process under it.
Absence of parliamentary appropriation and violation of public finance rules
10. The Petitioners alleged that the Project was approved, funded, and implemented in flagrant breach of the constitutional public finance framework.
11. The Petitioners contended that the 7th Respondent (National Assembly) admitted in its pleadings that there was no budgetary allocation for the Riruta–Ngong Project in Financial Year 2023/2024, despite construction being actively underway. It was averred that continued construction violated Articles 206, 220, 221, 222, and 223 of the Constitution, which vest exclusive authority over public expenditure in Parliament and prohibit expenditure outside approved estimates.
12. The Petitioners further argue that the National Executive's approval of a Kes 2.824 trillion project pipeline for KRC, which has accumulated losses of Kes 197 billion and negative equity of Kes 72 billion, without a financing plan violates Article 201(d) on prudent and responsible use of public resources and intergenerational equity.
Unconstitutional single-sourcing of contractors (Articles 227 and PPADA)
13. The Petitioners alleged that CRBC (9th Respondent) and APEC Consortium (10th Respondent) were procured through direct single-source procurement without open competitive tendering, in violation of Article 227 of the Constitution and Section 137(1) and (3) of the Public Procurement and Asset Disposal Act (PPADA). Section 137(1) and (3) requires procuring entities to publicize contracts. According to the Petitioners, this was never done in respect of the APEC Consortium contract.
14. The Respondents relied on Section 103(2)(d) of PPADA, which permits single-sourcing for standardization and compatibility with existing assets. The Petitioners challenged this justification on the basis that the Riruta–Ngong Project is a metre-gauge commuter line while the SGR is a standard-gauge railway with entirely different technologies, track widths, signalling systems, and operational parameters.
15. They further averred that there is no standardization between them. Further, the Section 103(2)(d) conditions (limited scale relative to the original procurement, reasonable price, and no suitable alternative) were not satisfied, and no mandatory documentation for direct procurement under Section 104 of PPADA was produced.
Failure to conduct mandatory pre-feasibility and feasibility studies for the project
16. The Petitioners argued that the Project, classified as a Mega Project with a cost exceeding Kes 5 billion, was commissioned and constructed without the mandatory pre-feasibility and feasibility studies required under the Public Finance Management (Public Investment Management) Regulations, 2022 (PIM Regulations). Regulation 20(4) requires that such a study assess, at a minimum: market and demand; technical and engineering feasibility; environmental impacts; human resource capacity; financial and economic viability; social impact; and risk analysis.
17. They stated that in February 2025, over 14 months after commissioning, KRC advertised for consultancy services to undertake a feasibility study for the Nairobi Commuter Rail Network, explicitly excluding Line 8 (the Riruta–Ngong corridor) from the scope. This, the Petitioners argued, demonstrated that no feasibility study was ever undertaken in respect of the Project. They further stated that the Respondents' failure to produce any feasibility study despite the mandatory production order issued on 19th March 2026 reinforces this conclusion.
Violation of the right to access information (Article 35)
18. The Petitioners and the KLDA made multiple specific written requests for project documents between June 2023 and April 2025, including letters dated 30th June 2023, 11th January 2024, 16th February 2024, 19th March 2024, 25th March 2024, 2nd May 2024, and 30th April 2025.
19. These requests were either unanswered or responded to with non-substantive generalities. When KLDA escalated to the Commission on Administrative Justice (CAJ) in June 2025, the CAJ's non-binding recommendation of 4th August 2025 merely advised re-submission of requests and did not compel disclosure.
20. The Court issued a mandatory production order on 19th March 2026 requiring production of eight categories of documents, feasibility studies, EPC contract, procurement records, parliamentary approvals, public participation records, Cabinet memoranda, financing instruments, and ESIA reports — within 30 days. As at the date of the hearing on 3rd June 2026, 75 days after the deadline, no documents had been produced. The Petitioners submitted that this constitutes a violation of Article 35 of the Constitution.
Lack of meaningful and timely public participation
21. The Petitioners argued that the Project was commissioned and construction commenced before any genuine public participation took place, in breach of Articles 10, 201, and 232 of the Constitution. The KLDA attended only one meeting arranged by KRC on 12th April 2024, well after the project had been commissioned and construction had commenced. At that meeting, KRC had not yet conducted an Environmental and Social Impact Assessment (ESIA), and the NEMA environmental licence was not issued until 19th September 2024.
22. The Petitioners stated that public participation conducted retroactively, after irreversible decisions had been made, is constitutionally defective. KRC's letter of 19th October 2023 expressly assured stakeholders that engagement would occur during the design development stage and the ESIA and Resettlement Action Plan (RAP) processes, thereby creating legitimate expectations that were wholly frustrated. No alternative routes were identified, evaluated, or disclosed to the public as required under the PIM Regulations.
Environmental violations (Articles 42, 69, and 70)
23. The Petitioners and KLDA challenged the Project's environmental compliance, arguing that construction commenced without the required ESIA and NEMA licence. The NEMA licence was issued on 19th September 2024, about nine months after construction began.
24. The ESIA public participation meetings were held between January and April 2024, after construction had commenced. The Petitioners further allege that the Project traverses the ecologically sensitive Karen area and encroaches on Ngong Forest, both areas with significant biodiversity and tree cover, without adequate mitigation measures or consideration of less destructive alternative routes.
1st Respondents (KRC's) Legal and Financial Incapacity
25. The Petitioners challenge the legal and financial capacity of KRC to undertake the Project and the broader Kes 2.824 trillion project pipeline. KRC's audited financial statements (Exhibit OOO-1, Part 2) show accumulated losses of Kes 197 billion, negative equity of Kes 72 billion, and work-in-progress of approximately Kes 136 billion, six times KRC's own-source revenue of Kes 21 billion.
26. The Petitioners argued that authorizing a technically insolvent entity with negative equity to implement a multi-trillion infrastructure portfolio, without a credible financing plan, violates Sections 8, 9, 11, 11A, 12, and 13(2)(a)(3)(4) of the Kenya Railways Corporation Act (Cap 397), Sections 11 and 12 of the State Corporations Act, and Article 201(d) of the Constitution.
Petitioners Submissions;
27. The Petitioners appeared in person and filed written and oral submissions. The 2nd Petitioner also filed Rebuttal Submissions on 1st June 2026 in reply to the Written Submissions of the 1st, 2nd, and 9th Respondents. The Petitioners' submissions advanced the following arguments:
Admissibility of Evidence
28. The Petitioners submitted that the Respondents' objections to their exhibits (OOO-1, BMM, BMM-5) as uncertified under Sections 79–81 of the Evidence Act were legally flawed on five grounds: (i) The Respondents themselves relied on uncertified documents in their own Replying Affidavits and could not approbate and reprobate; (ii) The 1st to 8th Respondents as custodians of the public documents had waived the objection by not raising it, and the 9th Respondent, a private contractor, had no standing to assert evidentiary objections on behalf of state organs; (iii) The Supreme Court decision in Kenya Railways Corporation v Okiya Omtatah [2023] KESC 35 (KLR) was distinguishable, as it concerned clandestinely obtained internal correspondence whereas the Petitioners' documents were Auditor-General reports tabled in Parliament (that are public documents under Article 229(7)), Appropriation Acts, KRC's audited financial statements, and Gazette Notices; (iv) Article 35(3) imposes a positive duty on the State to publish important information having failed to do so, the Respondents could not hide behind certification technicalities; and (v) Under Article 50(4), evidence is excluded only if admission would render the trial unfair, and no such prejudice arose here.
Res Judicata — No Identity of Issues
29. The Petitioners argued that the doctrine of res judicata does not bar the Petition. The 2023 Supreme Court SGR case concerned SGR Phase 1 procurement under a government-to-government arrangement and did not determine: the constitutionality of the RDLF under Article 206; the legality of financing a metre-gauge railway from the RDLF; the legality of the Riruta–Ngong procurement; KRC's approval of the Kes 2.824 trillion pipeline despite insolvency; or the constitutionality of the 2026 Amendment Act. The ELC Petition No. E028 of 2024 was confined to environmental and land-use matters under EMCA, and the ELC expressly declined jurisdiction over public finance, procurement, and parliamentary appropriation questions, directing those matters to the appropriate forum. There was accordingly no identity of subject matter.
The 2026 Amendment Act Does Not Render the Petition Moot
30. The Petitioners advanced five arguments: (i) The Amendment Act has no retrospective effect; all impugned actions predate 27th March 2026; (ii) The Amendment Act is itself unconstitutional and violated Articles 206(1)(a), 211, 221–223, and 10; (iii) The core grievances remain the RDLF's exclusion from the Consolidated Fund, procurement irregularities, lack of public participation, KRC's insolvency, and the Ksh.211 billion diversion; (iv) The Respondents cannot simultaneously argue that the pre-2026 law authorised the project and that the 2026 Amendment Act was needed to authorize it; they cannot approbate and reprobate; and (v) Even if the Act were valid, the Respondents must procure the project afresh under the new governance architecture it establishes.
Single-Sourcing — The Standardization Defence
31. The Petitioners faulted the "standardization" defence under Section 103(2)(d) of PPADA on three grounds: (i) The Riruta–Ngong Project is metre-gauge while the SGR is standard-gauge, entirely different and incompatible technologies with different track widths, signalling, and operations. The existing Nairobi CBD MGR network, to which the Riruta–Ngong line connects, was not built by CRBC. There is no technical standardization; (ii) Section 103(2)(d) imposes cumulative conditions limited to the size of procurement relative to the original, reasonable price, and unsuitability of alternatives — none of which was satisfied. SGR Phase 1 cost approximately Kes.500 billion; the Riruta–Ngong project is not "limited" by any measure; no price comparisons were produced; and dozens of competent global rail contractors existed; and (iii) CRBC is a private international EPC contractor, not a state corporation acting on behalf of a foreign government. The government-to-government exemption from procurement rules, which the Supreme Court upheld in the 2023 SGR case, does not apply here.
Separation of Powers — Policy Versus Constitutional Compliance
32. The Petitioners submitted that the Petition did not seek to override policy choices but to enforce constitutional boundaries on the exercise of power. Relying on Attorney General & 2 others v Ndii & 79 others [2022] KESC 8, the Petitioners submitted that separation of powers does not immunize unconstitutional conduct from judicial review. The specific constitutional violations pleaded — exclusion of revenue from the Consolidated Fund without reasonable justification (Article 206); procurement without transparency or competition (Article 227); expenditure without parliamentary appropriation (Articles 206, 221–223); and absence of public participation (Articles 10, 35, 47) — are justiciable constitutional questions, not policy preferences. It was urged that the respondents' authorities on separation of powers (OUTA; Nottinghamshire County Council; SG v Secretary of State) concerned challenges to budgetary wisdom rather than constitutional process.
Public Finance — KRC's Insolvency and the Ksh.2.824 Trillion Pipeline
33. The Petitioners placed before the Court documentary evidence showing that: KRC has accumulated losses of Kes.197 billion and negative equity of Kes.72 billion; the RDLF has been diverted from its mandate, including a Kes.33.5 billion loan to the Petroleum Development Levy Fund; the National Executive approved a Kes.2.824 trillion project pipeline for an insolvent entity without a financing plan; the National Assembly allocated zero funds to the Project in FY 2023/2024; KRC's work-in-progress of Kes.136 billion is six times its own-source revenue; and approximately Kes.5.2 billion was paid to CRBC as irregular contra entries and Kes.18.6 billion to Afristar as pre-operation costs from the RDLF. It was submitted that approving a multi-trillion project pipeline for an insolvent entity without a financing plan is irrational and violates Article 201(d).
Public Participation — Retroactive and Constitutionally Defective
34. The Petitioners argued that the ELC case determined public participation only for environmental licensing under EMCA, not for the policy decision to fund the Project from the RDLF, the procurement decision, or the budgetary allocation. Relying on Mui Coal Basin Local Community v PS Ministry of Energy [2015] eKLR, the Petitioners submitted that public participation must occur before irreversible decisions are taken. ESIA public participation meetings were held only between January and April 2024, well after commissioning and construction had begun.
The Fait Accompli Defence
35. The Petitioners rejected the 9th Respondent's proportionality argument based on 40% completion as a classic fait accompli defence: "we have already done the illegal act, so you cannot stop us." It was urged that accepting the said defence would produce an absurd constitutional principle: the further an unconstitutional project progresses, the less accountable it becomes, effectively enabling any public body to evade constitutional scrutiny by rapid implementation. Relying on All Pay (South Africa), the Petitioners noted that the South African Constitutional Court declared the contract invalid even at an advanced stage, merely suspending the declaration to allow fresh procurement. They urged that the 9th Respondent had not provided evidence that verified the 40% completion figure even after the Court issued mandatory production orders.
Non-Compliance with the Production Order — Adverse Inferences
36. The Petitioners submitted that the 1st and 2nd Respondents' refusal to comply with the Court's mandatory production order of 19th March 2026, 75 days after the deadline, with no documents produced, no application for an extension, and no explanation entitled the Court, under Section 112 of the Evidence Act, to draw the strongest adverse inferences, including that no proper feasibility study exists; that the procurement was irregular; that no parliamentary appropriation was obtained; that the financing arrangements are unlawful; and that the contract with CRBC is irregular.
Key Constitutional and Public Law Doctrines
37. The Petitioners submitted that a convergence of constitutional and public law doctrines supported the grant of the reliefs sought: illegality (all acts are void ab initio for lack of lawful authority); derivative unconstitutionality (all actions flowing from the unconstitutional RDLF are likewise unconstitutional); legitimate expectation (taxpayers expected the levy to fund only SGR construction); public trust (RDLF monies are held in trust for the people of Kenya, and their diversion breaches fiduciary obligations); restitution and unjust enrichment (CRBC, APEC, and Afristar received billions under irregular contracts and must make restitution); and res ipsa loquitur (the facts speak for themselves).
Responses and Submissions Filed by the Respondents and the Interested Parties
1st and 2nd Respondents - Kenya Railways Corporation (KRC) and the Board of Directors
38. The 1st and 2nd Respondents filed a replying affidavit dated 27th January 2026 and written submissions dated 29th May 2026 and further written submissions dated 8th June 2026 in opposition to the Petition and Oral amendment of the Petition. The Replying Affidavit and Submissions state as follows:
Procedural Objection — Challenge to section 8(4H) not properly before the Court
39. The 1st and 2nd Respondents raised a threshold procedural objection against the 1st Petitioner's attempt in oral submissions to invite the Court to pronounce on the constitutionality of Section 8(4H) of the Miscellaneous Fees and Levies (Amendment) Act, 2026. By a Ruling of 15th May 2026, the Court dismissed the Petitioners' Notice of Motion dated 24th April 2026 seeking leave to file an Amended Petition introducing that challenge. Accordingly, the challenge to the 2026 Amendment Act formed no part of the initial pleadings, and the Court could not adjudicate a cause of action not properly before it. The Respondents cited the Supreme Court's decision in Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR for the proposition that a party is bound by its pleadings.
Constitutionality of Section 8(4H) (in the Alternative)
40. The 1st and 2nd Respondents submitted that Section 8(4H) does not violate Articles 201, 211, or 220(1) of the Constitution. Parliament had, through legislation, validly authorized the RDLF Board to leverage up to 90% of the fund within prescribed limits. The impugned leveraging mechanism was authorized within the constitutional framework and was subject to parliamentary oversight through the broader RDLF governance structure.
Validity of the 2026 Amendment Act — Legislative Process Was Constitutionally Regular
41. The 1st and 2nd Respondents submitted that the 2026 Amendment Act was validly enacted by the National Assembly alone, without requiring Senate concurrence. As a national fiscal measure regulating a national levy fund and railway infrastructure financing, it did not constitute a "Bill concerning county government" within the meaning of Article 110(1) of the Constitution. Relying on The Senate & 3 Others v Speaker of the National Assembly & 10 Others, Petition No. 19 (E027) of 2021 KESC 11 (KLR), they argued that the Senate concurrence process under Article 110(3) is triggered only when a question arises as to whether a Bill concerns county government. The Speaker of the National Assembly was constitutionally entitled to determine that the 2026 Amendment Act did not require Senate involvement, as it related solely to national fiscal and infrastructure matters within the Fourth Schedule.
Presumption of Constitutionality of Statutes
42. The 1st and 2nd Respondents invoked the strong presumption that every Act of Parliament is constitutional until declared otherwise, placing the heavy burden of displacing that presumption on the Petitioners. They relied on Institute of Social Accountability & another v National Assembly & 4 others [2015] eKLR; Kidero v Muthaura & 4 others (Petition 372 of 2017) [2023] KEHC 24447; Molline Traders Limited & another v Tourism Regulatory Authority & 4 others [2020] eKLR; and Kamau v Attorney General & 14 others (Constitutional Petition 244 of 2019) [2021] KEHC 450. They submitted that the petitioners had failed to discharge this burden.
43. The 1st and 2nd Respondents urged the Court to: (i) decline to make any finding on the constitutionality of Section 8(4H), as the challenge was procedurally impermissible; (ii) in the alternative, hold that Section 8(4H) does not violate Articles 201, 211, or 220(1); and (iii) hold that the 2026 Amendment Act was validly enacted by the National Assembly without requiring Senate concurrence. They characterized the Petitioners' claim for special damages as an afterthought devoid of evidentiary foundation, and urged the Court to dismiss the Petition with costs.
4th, 5th, 6th Respondents;
Lawful Sovereign Financial Mobilization and Parliamentary Oversight
44. The 4th, 5th, and 6th Respondents filed joint skeletal submissions dated 9th June 2026, asserting that the Petitioners fundamentally misunderstand the constitutional division of labour in resource mobilization. Their position rests on three arguments:
1. The National Government borrowed funds from the Exim Bank to finance the capital development of the national railway infrastructure network — a legitimate exercise of sovereign borrowing within the Executive's constitutional mandate.
2. The 4th Respondent (National Treasury) is the primary Ministry constitutionally and statutorily responsible for mobilizing financial resources for structured repayment of those loans and for allocating them toward active public utility. The Treasury was acting within its core mandate.
3. The entire credit mobilization and loan repayment matrix was fully sanctioned by the 7th Respondent (National Assembly). Sovereign debt commitments were explicitly vetted and approved by the legislature through statutory channels, completely neutralizing the Petitioners' claims of unvetted or irregular debt exposure.
45. They contended that the judiciary lacks the institutional capacity or constitutional mandate to manage public debt, supervise external credit facilities, or micromanage treasury repayment timelines. When the National Treasury acts under parliamentary authorization to secure and repay infrastructure financing, its decisions constitute high-level economic policy and warrant judicial deference.
Lawfulness of Direct Procurement of CRBC and APEC Consortium
46. In response to submissions that CRBC and APEC Consortium were unconstitutionally single-sourced without open competitive tendering, which alleged action was violative of Article 227 of the Constitution and Sections 103(2)(d) and 137(1) and (3) of the Public Procurement and Asset Disposal Act (PPADA) and that the standardization defence was inapplicable because the Riruta–Ngong Project is metre-gauge while the SGR is standard-gauge, fundamentally incompatible technologies, the Attorney General submitted that the project was lawful.
47. The 4th, 5th and 6th Respondents submitted that the procurement strictly complied with Section 103(2)(d) of PPADA, which permits direct procurement for reasons of technical standardization or compatibility with existing infrastructure. Their justification rested on three arguments:
1. CRBC was the principal contractor for SGR Phase 1 (Mombasa–Nairobi) and Phase 2A (Nairobi–Naivasha). Its engagement for the Riruta–Ngong Project continues an existing contractual and operational relationship.
2. APEC Consortium served as the Client Engineer that designed, reviewed, and supervised construction for Kenya Railways across all SGR phases. Its engagement as Project Supervisor draws on institutional knowledge of the railway network's engineering standards.
3. The Riruta–Ngong Project functions as a last-mile commuter connection aggregating passenger traffic for the main SGR terminals. Using the existing engineering teams was an objective operational necessity to ensure seamless grid compatibility across the national rail network.
48. They relied on the Court’s decision in High Court of Kenya, Public Procurement Administrative Review Board & another v Republic & 2 others ex-parte China Road & Bridge Corporation: Open competitive tendering is not an inflexible rule where a contractor possesses singular, proprietary technical layout continuity of an ongoing transport corridor network. Direct procurement under the standardization exemption is legally valid and safeguards public funds from fragmentation
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