All is set for the hearing a petition challenging the legality of loans borrowed by the government since 2014 to date, amounting to more than Sh6.9 trillion.
Giving directions on January 6, a bench of three judges of the High Court said they will determine all applications, including those seeking to strike out the case, alongside the main petition.
Busia senator Okiya Omtatah and eight others have questioned the legality, propriety and accountability of the borrowings made by the government between 2014/2015 and 2024/2025, financial years.
Busia Senator Okiya Omtatah.
Photo credit: Dennis Onsongo | Nation Media Group
The petitioners allege that the borrowings were made without the mandatory Parliamentary approval and assent by the President through relevant Appropriation Acts.
Parliament and Attorney General Dorcas Oduor have opposed the petition arguing that it will interfere with the ongoing probe on the same, being conducted by the Auditor General.
“That the application pending in the Petition shall be subsumed and heard within the trial of the Petition,” the court said and directed the petitioners to serve the directions through a newspaper advertisement ahead of the hearing on March 10.
The court said because of importance of the case and public interest involved, some rules of procedure shall not apply as there was “need for expeditious disposal and time is of the essence thereof.”
Mr Omtatah and his co-petitioners allege that they interrogated Kenya’s debt stock as at November 30, 2024, and established that the government borrowed huge loans and spent the money against the constitution.
It is their argument that the government violated the constitution, the Public Finance Management Act (PFMA), and the Public Finance Management (National Government) Regulations (PFMR), resulting in the loss of some Sh6.9 trillion in the period covering the financial years 2014/2015 to 2024/2025.
“The petitioners are also aggrieved that as the breach of the supreme law to allow for the misappropriation of funds happened on the one hand, on the other, responsible oversight institutions and the people manning them took no action to arrest the situation, nay, some even colluded to conceal the fraud,” Mr Omtatah said.
Mr Omtatah said National Assembly enacted unconstitutional laws deliberately designed to aid and abet the swindle.
Ruto held accountable for the loans
“Hence, among other prayers, the petitioners want the Honourable Court to quash the unconstitutional pieces of legislation that aided and abetted the fraud; to declare some Kshs.6.95 trillion ‘owed’ by Kenya to be odious debt; and to hold culpable public officials personally liable pursuant to Article 226(5) of the Constitution, including by recovering any public money lost under their care,” he added.
The petitioners are seeking several reliefs, including a declaration of what they termed as odious debt incurred outside Appropriation Acts and invalidation of Eurobond loans and associated borrowing practices.
They also want the court to declare the unconstitutionality of offshore accounts and misuse of loan proceeds and some of the leaders, including former President Uhuru Kenyatta and William Ruto held accountable for the loans.
In response, Ms Oduor said there was an ongoing audit of public debt from 1963 to last year, following a request from the National Assembly.
The Attorney General Dorcas Oduor.
Photo credit: Dennis Onsongo | Nation Media Group
She said the mechanisms for auditing public accounts, as outlined in the Public Accounts Act, have been properly initiated and the petition was therefore, premature and should be struck out to allow the relevant public bodies to fulfil their mandate for auditing public accounts
“The Auditor General prior to the filing of the instant Petition got seized of and is presently engaged in active audit of public debt from independence (1963) to date,” Ms Oduor said through deputy chief state counsel Samwel Kaumba.
He added that the petition was filed despite the legal mandate of the Auditor General to audit and report on the public debt.
Central Bank of Kenya (CBK) has also opposed the case arguing that the issues raised in the petition fall within the scope of the Auditor-General’s investigatory and audit mandate under Article 252(1)(a) and (d) of the constitution and Section 37 of the Public Audit Act.
The banks’ regulator further said the petitioners have not demonstrated they had lodged any complaint with the Office of the Auditor-General to investigate the complaints raised in the petition, before moving to court.
“That permitting this Petition to proceed at this stage would not only be premature but also undermines the constitutionally sanctioned role of the Auditor-General and the oversight mechanisms of Parliament, contrary to the principle of institutional comity and the doctrine of separation of powers,” CBK said in response.
