Attorney General Dorcas Oduor wants a petition filed by Busia senator Okiya Omtatah and eight others on public debt struck out arguing that the case will interfere with the ongoing probe by the Auditor General on Kenya’s loans.
In a reply to the petition, the Ms Oduor said there was an ongoing audit of public debt from 1963 to last year.
Mr Omtatah sued former President Uhuru Kenyatta and senior officials in his government held accountable for loans amounting to Sh4.6 trillion that were borrowed during his tenure.
Terming the loans, including the Eurobonds, as "odious," Mr Omtatah, wants the former president and other senior officials surcharged under Article 226(5) of the Constitution, for debts incurred between the 2014/2015 and 2021/2022 financial years.
But the Attorney General said in court documents that by directing the government to respond to the petition, would compel the auditor general to submit herself to the court, prejudicing the audit.
“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.
Mr Kaumba added that before Mr Omtatah and his co-petitioners filed the case, the Auditor General, started probing the debts as early as September 16, 2024.
He added that the petition was filed despite the legal mandate of the Auditor General to audit and report on the public debt.
Last month, Justice Bahati Mwamuye certified the case as urgent and directed the parties named in the case to first submit of the question whether it should be heard by a bench of more than two judges.
The government wants its application certified urgent and heard on a priority basis, “as the ongoing audit by the Auditor General on public debt is likely to be greatly undermined”.
Treasury PS Chris Kiptoo said in an affidavit that a first was held on September 25, last year, between senior officers at the Treasury and the Auditor General,
He said the forensic audit was meant to ascertain the current public debt stock and the acquisition process from conceptualization to utilisation.
“I am advised by the State Counsel on record, which advice I verily believe to be sound, that it is the obtaining position of the law that where the Constitution has reposed specific functions in an institution or organs of state, the court must give those organs sufficient leeway to discharge their mandate,” he said.
Dr Kiptoo said the audit offers the best opportunity to determine whether public money arising from borrowings were applied lawfully and in an effective way.
“I confirm that the instant Notice of Motion Application filed herewith has been brought by the Respondents/ Applicants herein to promote, protect and uphold the rule of law by seeking that the Petition herein be struck out on the basis that the Petition was filed notwithstanding the legal mandate of the Auditor General, as expressed under Article 229(4)(g) of the Constitution, to audit and report on the public debt with a view to confirming whether or not public money has been applied lawfully and in an effective way,” he said.
The petitioners further stated that another Sh2.2 trillion borrowed during President William Ruto’s administration constitutes odious debt, and they want former CS Prof Njuguna Ndung’u, Controller of Budget Margaret Nyakang’o, and Auditor General Nancy Gathungu held liable for these loans.
The petitioners further accused the former regime of allegedly misusing their powers by borrowing and mishandling large sums of public money in violation of the law, thereby burdening Kenyan taxpayers with the debts, including the Eurobond loans.
Mr Omtatah claimed that all the Eurobond loans were acquired unlawfully, without the approval of Parliament through the necessary Appropriation Acts.
He explained that the funds were placed into offshore accounts rather than the Consolidated Fund, which he believed was done intentionally to conceal and misappropriate the money.
“By illegally placing the Eurobond funds into an offshore account instead of the Consolidated Fund, the government exposed the money to misuse. The petitioners reasonably believe that this action was done with improper or corrupt motives, without consideration for the public interest,” he stated in an affidavit filed in court.
The petitioners claimed that the government deliberately borrowed vast sums of money from both domestic and international markets in violation of the Constitution, the Public Finance Management Act (PFMA), and other regulations.
Senator Omtatah further argued that the Eurobond funds were spent without the Appropriation Act authorising withdrawals from the Consolidated Fund, in violation of Articles 222, 223, and 228 of the constitution, as no parliamentary approval was granted for these expenditures.
The petitioners also claimed that under Kenyatta's administration, the public debt stock rose dramatically, from approximately Sh2.37 trillion (accumulated over 50 years since Independence) by June 30, 2014, to Sh8.57 trillion in just eight years.
