High Court lifts orders blocking construction of Sh11.5 billion Riruta-Ngong railway

The High Court has lifted conservatory orders that had been blocking the construction of the Sh11.5 billion Riruta-Ngong Commuter Metre Gauge Railway Project, dealing a temporary but significant blow to activists who had secured the orders to halt the controversial infrastructure project.

Justice Bahati Mwamuye of the Milimani Constitutional and Human Rights Division vacated the interim orders on Friday, ruling that the balance of fairness required all parties to be placed on equal footing before the matter could be substantively argued and determined.

The orders had been obtained by activist and Busia Senator Okiya Omtatah Okoiti, alongside Bernard Muchiri Muchere and Naomi Nyakerario Misati, who had moved to court seeking to block not only the Riruta-Ngong project but also to restrain the government from disbursing funds from the Railway Development Levy Fund and the Consolidated Fund for related projects worth up to Sh2.824 trillion.

In his ruling, Justice Mwamuye cited two key reasons for vacating the conservatory orders.

First, the court found that the respondents, which include Kenya Railways Corporation, China Road and Bridge Corporation (CRBC), the National Treasury, the Attorney-General, and the National Assembly, among others, had been prejudiced by a series of late affidavits filed by the petitioners outside the strict timelines the court had set on February 10, 2026.

The judge held that fairness and the right to a fair hearing demanded that respondents be allowed to respond to what they described as new issues and fresh evidence smuggled into the proceedings after deadlines had lapsed.

Second, and critically, the court noted that a final ruling on the conservatory orders application was now only 13 days away.

Justice Mwamuye reasoned that within such a narrow window, the respondents were unlikely to take actions that would render the petition nugatory or cause irreparable harm to the public interest the petitioners sought to protect.

"The ruling in this matter is a mere 13 days away, and the court is satisfied that not much could be done by the respondents in terms of further works in less than two weeks to render the petition nugatory," Justice Mwamuye stated.

Friday's hearing had opened with a fierce procedural battle.

Lawyer Albert Mumma, appearing for the 9th respondent CRBC, told the court that the petitioners had brazenly defied court directions by filing multiple further affidavits, including one served at 9:11 pm the previous night, long after the February 19 deadline.

"These are being filed totally outside of the directions of the court. My brief submission on it is that this is unacceptable," Mumma told Justice Mwamuye.

He described the conduct as litigation by ambush, accusing the petitioners of deliberately introducing new evidence at a stage when the respondents had no further opportunity to file responses.

Senior Counsel Charles Kanjama, for the 3rd petitioner Nyakerario, arguing the affidavits were legitimate rejoinders filed in accordance with the spirit of the court's own directions, which had reserved the last word for the petitioners as applicants.

He noted that at least one respondent had filed an affidavit late, on February 18, the eve of the Law Society of Kenya elections, and urged the court to consider the Mutunga Rules' overriding objective of achieving substantive justice.

Senior Counsel Chacha Odera, for the Kenya Railways Corporation and the Board of Directors, KRC, was unmoved, insisting the court's timetable carried the force of an order.

"We can no longer go arguing about whether your timetable was an order or a suggestion. It was an order," Odera submitted, citing the Supreme Court's 2022 presidential petition ruling on the binding nature of court-set filing deadlines.

Justice Mwamuye granted respondents leave to file supplementary affidavits, strictly limited to responding to existing issues and not raising new ones, by close of business March 13, 2026.

Petitioners will file any rejoinder affidavits by March 17, 2026, with virtual highlighting of submissions scheduled for March 18 at 11:00 am.

The ruling on whether the conservatory orders, and ultimately the fate of the Riruta-Ngong railway project, will be restored or permanently discharged is set for delivery on March 19, 2026 at 10:30 am, virtually.

The project, which connects Riruta to Ngong along a commuter metre gauge line, has been at the centre of public interest litigation raising questions about public participation, procurement transparency, and the constitutionality of disbursements from the Railway Development Levy Fund.