CJ Koome appoints bench to hear Sh4.6 trillion case against ex-President Uhuru Kenyatta

Chief Justice Martha Koome has appointed a three-judge bench to preside over a petition seeking to hold former President Uhuru Kenyatta and senior government officials legally accountable for the accumulation of Sh4.6 trillion in public debt during his administration.

In a notice sent to the parties by High Court Assistant Deputy Registrar Beja Nduke, CJ Koome designated Justices Josephine Wambua Mong’are, Moses Ado Otieno, and Francis Gikonyo to hear the matter.

The assistant deputy registrar further directed the parties, including the National Assembly, the Treasury, and the Auditor-General, to file all relevant pleadings with the High Court registry in preparation for the hearing.

The three judges are based at the Commercial Division of the High Court in Milimani, Nairobi. The appointment follows a petition filed by nine individuals led by Busia Senator Okiya Omtatah.

In June, Justice Bahati Mwamuye referred the case to the Chief Justice for empanelment of a bench, citing that it raised substantial questions of law.

Justice Mwamuye noted the existence of a related matter- High Court Petition No. E248 of 2023- currently before a separate three-judge bench comprising Justices Roselyne Aburili, Bahati Mwamuye, and John Chigiti.

"Having considered the matter and compared this petition with Petition No. E248 of 2023, I am satisfied that the petition raises substantial questions of law under Article 165(4) of the Constitution," Justice Mwamuye ruled.

"Consequently, I certify this petition as urgent and forward it to the Chief Justice for empanelment of a bench," he added.

The petition seeks to hold President Uhuru and key officials in his administration legally liable for the Sh4.6 trillion debt accumulated between the 2014/2015 and 2021/2022 fiscal years.

It also questions the legitimacy of an additional Sh2.2 trillion in loans acquired under President William Ruto’s government.

Omtatah and his co-petitioners allege that a significant portion of the debt, particularly from Eurobond proceeds, was acquired without adequate oversight and constitutes "odious debt".

They further seek to hold accountable former Treasury Cabinet Secretary Njuguna Ndung’u, Controller of Budget Margaret Nyakang’o, and Auditor-General Nancy Gathungu.

According to the petitioners, public debt surged dramatically during the Jubilee administration (2013–2022), rising from approximately Sh2.37 trillion (accumulated over 50 years since independence) in June 2014 to Sh8.57 trillion by 2022.

They argue that the former President and other officials should be held personally liable under Article 226(5) of the Constitution, which states that “if the holder of a public office, including a political office, directs or approves the use of public funds contrary to law or instructions, the person is liable for any loss arising from that use and shall make good the loss, whether the person remains the holder of the office or not.”

They also claim that an additional Sh2.2 trillion borrowed under President Ruto’s administration qualifies as odious debt.

Attorney General Dorcas Oduor has opposed the petition, calling for it to be struck out.

She argues that the petition would interfere with an ongoing audit of public debt being conducted by the Auditor General, which covers the period from 1963 to the present.

In her court documents, the AG says compelling the government to respond to the petition would effectively require Auditor General Gathungu to submit to court proceedings, an act she argues would compromise the audit process.

"The Auditor General, prior to the filing of the instant petition, was already seized of and is presently engaged in an active audit of public debt from independence (1963) to date," Oduor states.

She revealed that the probe officially began on 16 September 2024 and insisted that the petition was filed despite the Auditor-General’s constitutional mandate to audit and report on public debt.

The government maintains that the ongoing audit, intended to assess the scale of public debt and examine the processes of its acquisition and utilisation, could be severely undermined by parallel court proceedings.