"Mai Mahiu flood disaster not an act of God": Court rules

The Environment and Lands Court has ordered the government to do safety and hydrological tests of a railway bridge dubbed 'dark tower' at Kijabe and submit quarterly reports after residents complained that a lack of maintenance and checkups had led to a disaster that cost lives.

Justice Mary Oundo, in her judgment, said there was evidence that the blockage of the tunnel beneath the bridge had created a dam, which led to mudslides that harmed the people below.

For failing to act, the court ordered that Kenya Railways and the Attorney General should pay a group of 143 Kijabe residents Sh50,000 each.

According to the judge, the mudslides caused by blockage could not be termed as an act of God, as KR and other government agencies never took care of the bridge as required.

“The State’s obligation to protect life under Article 26 of the Constitution includes a duty to mitigate foreseeable hazards. The Water Resources Authority (WRA) and National Disaster Management Authority (NDMA) failed to act on the Kenya Meteorological Department’s 2023/2024 El Niño warnings.”

“Secondly, by allowing debris (trees, stones, and mud) to accumulate in the railway tunnel, the first respondent (Kenya Railways) created a "man-made dam." The failure to patrol and clear this tunnel constituted a breach of the statutory duty of maintenance, which directly led to the loss of lives,” said Justice Oundo.

At the same time, she said that the National Environment Management Authority’s (NEMA) failure to stop Kenya Railways from rebuilding a structure that previously failed, without allowing for the proper public participation in an Environmental Impact Assessment (EIA), constituted a violation of the enforcement mechanism intended by Article 70 of the Constitution.

In this case, the group led by Benard Ndung’u argued that  flash floods not
not only destroyed structures but also left entire families homeless. By allowing the ‘Dark Tower’ tunnel to become a state-created risk, the government essentially caused the forced eviction of residents by water.

They also argued that they were left destitute because the government failed to
fulfill their promise to settle them.

On April 29, 2024, lash floods swept away people and homes at Kamuchira, Jerusalem, Githioro Georges, and Ruiru.

 Ndung’u narrated that the root problem was structural failure within a blocked railway tunnel near the old Kihabe Town.

He explained that the tunnel, which is also a tourist attraction, is a concrete structure about 183 meters long and was designed to support a soil embankment bridge of the Kenya-0Uganda Railway.

 He further said that excessive flood water accumulated, owing to the blockade and created a man-made dam after which the tunnel burst, releasing the trapped water into the 100-meter gorge below.

Ndung’u argued that if Railways and government agencies had kept an eye on the tunnel, no one would have died or been swept away.

The court heard that despite the previous disaster, KR had started reconstruction of an obsolete embarkment bridge, which was similar to the one that failed in 2020 and 2024.

He stated that the government had promised to relocate them but never honoured its word.

On the other Railways and AG argued that the disaster was an act of God. Stanley Gitari, who is the corporation’s acting secretary, argued that it had nothing to do with the disaster.  He blamed the rains.

He added that between March and May 2024, Kenya experienced extraordinary rainfall—recorded by the National Drought Management Authority at 111 per cent to over 200 per cent above average.

“This El Niño-driven phenomenon caused widespread devastation across 42
counties, including Nakuru and the Central Rift Valley, where the railway’s steep, varied terrain was particularly vulnerable to resulting landslides and debris,” he replied.

KR and AG denied negligence. They asserted that the drainage infrastructure was hydraulically sufficient for standard conditions.

They further argued that the failure at KM 604 was caused by external factors, specifically upstream deforestation. According to them, this led to an influx of boulders and tree stumps that blocked culverts, causing ‘ponding’ and eventual
embankment failure.

 The court heard that this was the first such failure since the line’s construction in the early 1900s.

They claimed that various teams had been deployed to monitor areas likely to have a disaster. Further, they argued that desilting of culverts and side drains had allegedly been done to prevent blockages and improve drainage capacity.

The Ministry of Transport also opposed the case. It argued that everything was above board.