The High Court has ordered the disclosure of crucial documents in a petition filed by Busia Senator Okiya Omtatah challenging the construction of the Ngong–Riruta railway project.
In a ruling delivered on Thursday, Justice Bahati Mwamuye directed multiple state agencies to produce a wide range of records related to the project within 30 days, finding that the petitioner had established a valid constitutional basis for access to the information.
The court held that the documents sought — including feasibility studies, procurement records, parliamentary approvals, and environmental impact assessments — are central to determining the legality and constitutionality of the project.
Justice Mwamuye emphasised that the right of access to information under Article 35 of the Constitution of Kenya is fundamental and enforceable, noting that public entities have both a constitutional and statutory obligation to provide information upon request.
“The respondents’ engagement was at best evasive and at worst wholly non-compliant,” the judge observed, citing evidence that the petitioner had made repeated requests for the documents since June 2023 without meaningful response.
The court found that Omtatah had exhausted available administrative avenues, including seeking redress under the Access to Information Act 2016, before moving to court.
In granting the application, the judge rejected objections raised by the State, including claims of confidentiality and lack of custody of the documents.
He ruled that vague assertions of confidentiality cannot override constitutional rights unless supported by specific and legally justifiable grounds.
The court further underscored that discovery is a key component of the judicial process, intended to ensure transparency, prevent trial by ambush, and enable courts to make informed decisions based on a complete evidentiary record.
“Without access to the specified documents, the court would be constrained to resolve complex constitutional questions on an incomplete record,” the judge said.
As part of the orders, the respective agencies were compelled to produce certified copies of documents, including the full feasibility studies for the railway project, engineering and procurement contracts, tender records, parliamentary approvals, evidence of public participation, cabinet decisions, financing agreements, and environmental approvals.
The ruling also confirmed interim conservatory orders halting the implementation of the railway project pending the hearing and determination of the main petition.
However, the court clarified that the orders are temporary and do not determine the merits of the case. It noted that the project could proceed if ultimately found to be lawful.
Justice Mwamuye directed that the petition be fast-tracked, with a judgment expected within 90 days.
He cautioned that the conservatory orders could be lifted if parties — particularly the petitioner — fail to cooperate in expediting the case.
The dispute centers on the proposed Ngong–Riruta railway, with Omtatah raising concerns over transparency, procurement compliance, environmental safeguards, and public participation in the project’s approval process.
The case will now proceed to a full hearing, where the court will determine whether the project meets constitutional and legal thresholds.
