A three-judge bench has been formed to hear a petition seeking to hold former President Uhuru Kenyatta and senior officials in his administration personally accountable for the accumulation of Sh4.6 trillion in public debt.

Chief Justice Martha Koome appointed Justices Josephine Wambua Mong’are, Moses Ado Otieno, and Francis Gikonyo, who all sit at the Commercial Division of the High Court in Milimani, Nairobi, to preside over the matter.

This was confirmed in a notice sent to involved parties by High Court Assistant Deputy Registrar Beja Nduke.

The appointment follows a petition filed by nine individuals, led by Busia Senator Okiya Omtatah, targeting debts accrued between the 2014/2015 and 2021/2022 financial years.

The petitioners are also questioning the legality of an additional Sh2.2 trillion in loans secured under the current administration of President William Ruto.

Justice Bahati Mwamuye had earlier referred the case to the Chief Justice for the formation of a bench, stating that it raised serious constitutional and legal questions. “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,” he ruled.

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

The Deputy Registrar has also directed the parties involved including the National Assembly, the Treasury, and the Auditor-General—to file all relevant responses and documents with the High Court registry to facilitate the hearing.

The petition accuses the former President and top officials in his government of overseeing a rapid escalation in public debt without sufficient scrutiny, particularly with regard to Eurobond borrowings. The petitioners argue that much of this debt qualifies as “odious debt” and claim it was taken without proper oversight mechanisms.

They further cite Article 226(5) of the Constitution to demand personal liability for the public officers involved.

The article states that any public officer, including those in political offices, who approves or uses public funds contrary to the law is personally liable and must make good the loss, whether or not they still hold office.

In addition to Uhuru, the petition seeks to hold to account former Treasury Cabinet Secretary Njuguna Ndung’u, Controller of Budget Margaret Nyakang’o, and Auditor-General Nancy Gathungu.

According to the petitioners, Kenya’s public debt rose sharply during the Jubilee administration, from Sh2.37 trillion in June 2014 to Sh8.57 trillion by 2022.

The petition also challenges the current administration's debt record, alleging that the Sh2.2 trillion borrowed since President Ruto took office fits the same pattern and should be classified as odious.

However, Attorney General Dorcas Oduor has opposed the petition, calling for its dismissal. She argues that it would disrupt an ongoing audit by the Auditor-General, which began on 16 September 2024 and covers public debt from independence in 1963 to the present.

“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,” she states in court documents. She warns that requiring the government to respond to the petition could compromise the independence and integrity of the audit, as it would effectively subject Auditor-General Gathungu to judicial scrutiny during an active investigation.

According to the government, the ongoing audit is intended to fully examine the extent and legality of Kenya’s debt burden and its management, and running parallel court proceedings could interfere with the process.