The High Court has declined a request by Kenya Railways Corporation and its managing director Philip Mainga to suspend orders requiring investigations into possible criminal responsibility over the 2024 Maai Mahiu floods that killed 76 people.

The court dismissed the application and ruled that Kenya Railways and Mr Mainga had failed to demonstrate that they would suffer substantial loss if the contested orders remained in force while their appeal is pending.

The ruling keeps alive the court's July 3, 2026 orders allowing victims of the tragedy, including survivors and relatives of those who died, to pursue a private prosecution if the Director of Public Prosecutions (DPP) and police fail to investigate and act within 30 days. The court declined arguments that the judgment had left Kenya Railways and the MD exposed to possible prosecution as they pursue an appeal at the Court of Appeal.

Railways CEO Philip Mainga — Kenya Railways Corporation Managing Director and CEO Philip Mainga during an interview at his office on March 16, 2021.

Photo credit: Dennis Onsongo | Nation Media Group

The decision stems from the April 29, 2024 floods, which the police told the court claimed 76 lives after water accumulated near a railway embankment before surging through villages below.

Victims sued the DPP, the Attorney-General, the Inspector-General of Police, Mr Mainga, Kenya Railways and the Public Procurement Regulatory Authority, accusing state agencies of failing to ensure criminal accountability for the disaster.

On July 3, 2026, the High Court ruled for the victims, finding that the disaster stemmed from preventable failures by state agencies rather than an unavoidable natural event. The court held that "the railway embankment being an artificial structure... when it burst, it was not an 'Act of God' but a structural failure of State-managed property."

Read: Court orders DPP to probe Mai Mahiu flood deaths

It criticised the slow pace of investigations, noting that unlike the 2018 Solai Dam disaster, where investigations were completed and criminal charges filed against those deemed responsible, the government had done little to ensure accountability for the Maai-Mahiu tragedy.

It directed the police to complete investigations and ensure that those found culpable are charged. It also said that if the DPP fails to act, the victims were free to pursue private prosecutions against persons they believe bear criminal responsibility, including senior officials of the Kenya Railways Corporation.

This prompted the State Corporation and its MD to move to the Court of Appeal and at the same time return to the High Court seeking orders suspending execution of that judgment.

Mai Mahiu — A vehicle that was swept by floods in Maai Mahiu on April 29, 2024

Photo credit: Bonface Mwangi | Nation Media Group

They argued that unless the judgment was suspended, the mandatory timelines imposed by the court would continue running and expose them to criminal investigative and prosecution before their appeal could be heard.

They told the court they had already lodged a notice of appeal against the legality of the orders.

But the court was not persuaded. "I am not persuaded that the 4th and 5th respondents (Kenya Railways and Mr Mainga) have laid before the court evidence that they will suffer substantial loss," he said.

Read: Why floods death toll is just one part of true cost of disaster

He added that they had "not provided any evidence to show that they stand to suffer substantial loss, and there is no justification for keeping the applicants from enjoying the fruits of the judgement."

The court also noted that both Kenya Railways and the DPP had lodged notices of appeal and that a memorandum of appeal had already been filed before the Court of Appeal.

However, the judge said the High Court was not the proper forum to assess whether the appeal was arguable, observing that such questions are better determined by the appellate court when considering an application for stay.

In the July 3 judgement, the court found that the victims had established sufficient grounds to question why no criminal accountability had followed one of Kenya's deadliest flood disasters despite the loss of dozens of lives.

Justice Musyoka questioned the different approach taken by investigators compared with the 2018 Solai Dam disaster, where criminal charges were promptly brought after 48 people died when a privately owned dam collapsed.

"The circumstances of the two incidents, the Solai Dam and the Maai-Mahiu, are similar. The contrasting reactions to two similar incidents can only suggest discrimination and selective treatment," the judge said.

He observed that the key distinction was ownership of the infrastructure.

"The only difference between the Solai Dam incident and the Maai-Mahiu tragedy is that the Solai Dam was privately owned, while the railway is a property of the State," the judge said.

Residents gather at the ruins of a home destroyed by flash floods in Kamuchiri village of Maai Mahiu, Nakuru.

Photo credit: Thomas Mukoya | Reuters

The applicants, led by Jacinta Kuria and 83 others, argued that Kenya Railways failed to properly maintain and monitor the railway tunnel despite previous flooding incidents and weather risks.

They contended that the corporation's actions amounted to negligence warranting criminal investigations against senior officials, including the then managing director.

The DPP maintained that it could only decide whether to prosecute after receiving a completed investigation file from the police.

The police told the court they had opened a public inquest file and that investigations were underway before the file would be forwarded for independent review. Kenya Railways denied liability for the disaster.

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jwangui@ke.nationmedia.com