The government and transparency activists are locked in a legal fight over audit of Sh9.6 trillion in public debt accumulated between 2014 and 2024, including Eurobond loans.
The disagreement is on whether the High Court should hear a constitutional case seeking to declare the debt unconstitutional while the Auditor-General continues a forensic audit.
The Attorney General Dorcas Oduor, together with Treasury Cabinet Secretary John Mbadi want the court case halted pending the outcome of the ongoing audit. On the other hand, the activists led by Busia Senator Okiya Omtatah want both the constitutional proceedings and the forensic audit to proceed concurrently. The other petitioners are Bernard Muchere and Naomi Misati.
The petition challenges the legality of the debt and seeks declarations on whether former President Uhuru Kenyatta and several current and former Treasury, audit and budget officials bear personal liability.
The Attorney General Dorcas Oduor.
Photo credit: Dennis Onsongo | Nation Media Group
The petitioners want officials held personally liable for alleged unlawful borrowing and expenditure.
Others targeted include former Treasury Cabinet Secretaries Henry Rotich, Ukur Yatani and Njuguna Ndung'u, former Treasury Principal Secretary Kamau Thugge, former Attorney-General Githu Muigai, former and current Controllers of Budget Agnes Odhiambo and Margaret Nyakang'o, former Auditor-General Edward Ouko, Auditor-General Nancy Gathungu and former EACC chief Halakhe Waqo.
The petition alleges they unlawfully directed, approved or authorized borrowing and expenditure of public funds contrary to Article 226(5) of the Constitution and seeks accountability for those decisions.
However, in fresh court filings, Mr Omtatah argues the Attorney-General's application to suspend the proceedings is “constitutionally incompetent” because it effectively asks the High Court to halt its own proceedings pending an intended appeal at the Court of Appeal.
He says the Constitution bars the court from exercising supervisory jurisdiction over another superior court and contends that any request to preserve the intended appeal should instead be made before the Court of Appeal.
"The proper forum for the applicants to seek a stay of proceedings pending appeal is the Court of Appeal itself," Mr Omtatah says in a replying affidavit.
Busia Senator Okiya Omtatah.
Photo credit: Dennis Onsongo | Nation Media Group
"The Attorney-General's application is an impermissible attempt to have this Court exercise supervisory jurisdiction over the Court of Appeal."
The dispute follows a June 25 ruling by a three-judge bench allowing the constitutional petition to proceed despite an ongoing forensic audit by Auditor-General Nancy Gathungu.
The court also declined applications by current and former Auditors-General and Controllers of Budget to be removed from the proceedings.
The Attorney-General subsequently filed a notice of appeal and asked the High Court to suspend hearings scheduled for October 24 and 25, arguing the intended appeal would otherwise be rendered nugatory.
Together with the Treasury Cabinet Secretary John Mbadi, the AG said government was dissatisfied with the court's ruling that dismissed her bid to halt the petition in favour of an ongoing forensic audit by the Auditor-General.
But Mr Omtatah says no appeal capable of supporting a stay currently exists because only a notice of appeal has been lodged.
"The filing of a Notice of Appeal and a request for certified proceedings does not, by itself, constitute exceptional circumstances warranting a stay of proceedings," he says.
"To hold otherwise would allow any dissatisfied party to paralyze proceedings in the High Court by the simple expedient of filing a Notice of Appeal."
He further argues that the constitutional petition does not interfere with the Auditor-General's statutory functions because the court is being asked to determine constitutional questions that an audit cannot resolve.
The petition challenges the constitutionality of public borrowing accumulated between the 2014/15 and 2023/24 financial years, including Eurobond loans and other sovereign borrowings and guarantees that the petitioners allege were unlawfully contracted or lacked proper constitutional authorisation.
Mr Omtatah argues the constitutional questions before the court are distinct from the Auditor-General's investigative role and can proceed simultaneously.
National Treasury and Economic Planning Cabinet Secretary John Mbadi.
Photo credit: File | Nation Media Group
"The Auditor General remains fully empowered to carry out its constitutional mandate. The forensic audit and the High Court determination on legality and constitutionality are complementary, not mutually exclusive," he says.
He also argues that staying the proceedings would delay resolution of issues affecting public finance accountability and public debt governance.
"The interests of justice require that the Amended Petition proceeds to hearing without further delay," Mr Omtatah says.
He adds that the case raises "issues of immense public importance" concerning public borrowings, enforcement of constitutional provisions governing public finance and the accountability of senior public officials.
Mr Omtatah says the petition was filed in April 2025 and that the court has already spent more than a year resolving preliminary objections before fixing the substantive hearing for October 24 and 25 this year.
He asks the court to dismiss the Attorney-General's application and confirm that the constitutional petition will proceed on the scheduled hearing dates.
