The High Court has declared the government’s Sh12 billion Ngong-Riruta Metre Gauge Railway (MGR) project unconstitutional, ruling that it was initiated and implemented in violation of key constitutional and statutory requirements.
In a judgment delivered on Friday, Justice Gregory Mutai found that the project failed to meet several legal thresholds before construction commenced, including obtaining parliamentary approval, conducting a competitive procurement process, carrying out a feasibility study and ensuring meaningful public participation.
The court, however, noted that construction of the commuter railway is already about 40 per cent complete and declined to permanently terminate the project. Instead, it directed the government to comply fully with the law before any further work can proceed.
The case was filed by Busia Senator Okiya Omtatah together with the Karen Langata District Association, who challenged the legality of the project’s funding and implementation.
The petitioners argued that the government unlawfully relied on the Railway Development Levy Fund (RDLF) to finance the project and failed to adequately involve residents and other stakeholders before construction began.
Justice Mutai ruled that public participation conducted after construction had already started could not remedy the constitutional defects surrounding the project.
He further held that the use of the Railway Development Levy Fund before amendments to the law made on March 27, 2026, was unconstitutional and could not be validated retrospectively.
The court also criticised Kenya Railways Corporation and other state agencies for failing to disclose crucial project documents despite earlier court orders compelling their release, saying transparency is a constitutional obligation in publicly funded infrastructure projects.
To regularise the project, the government has been given 90 days to undertake a fresh procurement process where necessary, secure parliamentary approval, conduct meaningful public participation, and disclose key documents, including feasibility studies, procurement records and financing arrangements.
Conservatory orders suspending construction will remain in force for up to one year or until the government fully complies with the court’s directives.
