Court rejects AG's bid to dismiss Kenya's sh 7 trillion 'Odious debt' case

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A three-judge High Court bench has dismissed Attorney General Dorcas Oduor’s bid to strike out Busia Senator Okiya Omtatah's petition challenging the legality and constitutionality of Kenya's Sh7 trillion public debts.

The bench comprising Justices Francis Gikonyo, Moses Ado and Roselyne Aburili rejected arguments by the AG that the dispute should first be handled through a forensic audit being conducted by the Auditor-General and parliamentary oversight mechanisms.

"For the foregoing reasons, we find that the notice of motion dated May 5 is without merit and is hereby dismissed. The petition shall proceed to hearing and determination on its merits," Justice Ado said reading the ruling on behalf of the bench

The ruling is a significant early victory for Busia Senator Omtatah and eight co-petitioners who filed the case in April 2025 challenging what they describe as "odious debts" of Sh6.95 trillion allegedly accumulated between the 2014/2015 and 2023/2024 financial years under former President Uhuru Kenyatta and President William Ruto.

The AG's application was supported by the affidavit of Treasury Principal Secretary Dr. Chris Kiptoo, had received backing from the National Assembly, the current Auditor-General Nancy Gathungu, former Auditor-General Edward Ouko, the Central Bank of Kenya, and other respondents.

They argued the petition was premature, unripe, and offended the doctrines of exhaustion and separation of powers.

The bench, however, found that the existence of the forensic audit, commissioned pursuant to Article 229 of the Constitution and Section 37 of the Public Audit Act, did not automatically oust the court's jurisdiction.

"The mere existence of an alternative process does not automatically defeat the jurisdiction of the court. The real question should be whether the alternative mechanism is capable of granting the relief sought," Justice Ado read, concluding that neither the Auditor-General nor Parliament could grant the constitutional declarations the petitioners seek.

The bench further rejected the argument that the petition was premature, noting that the alleged constitutional violations concerned public debt already incurred, legislation already enacted, and obligations allegedly already breached over a ten-year period.

"These allegations are therefore neither speculative nor hypothetical," the court held.

On the separation of powers argument, in which the National Assembly urged the court to defer to Parliament and the Auditor-General, the bench was equally firm.

"To decline jurisdiction solely because another constitutional process is ongoing would, in effect, amount to this court's abdication of a mandate expressly conferred by the Constitution," Justice Ado stated,

"That is not the purpose of the separation of powers doctrine."

The court also rejected the suggestion that the petitioners should be required to exhaust the very audit process whose alleged failures form part of their complaint.

"It would therefore be conceptually difficult to require the petitioners to exhaust a process whose alleged constitutional failure forms part of the dispute before the court," the bench held.

The petition, which also challenges Eurobond loans totalling USD 7.1 billion, names former President Kenyatta as first respondent and alongside a wide range of current and former Treasury officials, the IMF, the National Assembly, and the Central Bank of Kenya.

The petitioners seek personal liability declarations against both administrations and permanent injunctions against further unauthorised borrowing.

The case now proceeds to a full hearing on its merits.

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