AG asks court to dismiss Sh4.6 trillion debt petition

The government has moved to have a petition challenging the country’s public debt dismissed, arguing that it would interfere with an ongoing audit by the Auditor-General.

Attorney-General Dorcas Oduor, in her response to the petition, stated that the ongoing audit of Kenya’s public debt would be compromised by the legal proceedings.

The audit, which began in September 2024, aims to examine the public debt from 1963 to the present and provide an accurate account of its management.

The petition, filed by Busia Senator Okiya Omtatah and eight other petitioners, targets former President Uhuru Kenyatta and senior officials from his administration.

The petitioners accuse the former President and his government of borrowing Sh4.6 trillion between the 2014/2015 and 2021/2022 financial years, which they refer to as "odious debt."

Omtatah and his co-petitioners seek to have these individuals held personally liable for the debt and subject to surcharges as outlined under Article 226(5) of the Constitution.

However, Oduor, in her legal arguments presented by Deputy Chief State Counsel Samwel Kaumba, emphasized that allowing the case to continue would conflict with the constitutional role of the Auditor-General.

She pointed out that the Auditor-General’s office is the only body authorized to audit the national debt, as per Article 229(4)(g) of the Constitution.

Kaumba highlighted that the Auditor-General had already initiated a comprehensive audit of public debt before the filing of the petition, making any additional legal proceedings unnecessary.

"The Auditor-General, before the filing of this petition, had already taken up and is actively auditing the public debt from 1963 to date," Kaumba said.

He also clarified that the audit started on September 16, 2024, and is being conducted independently of the court case.

Kaumba argues that the court proceedings would force the Auditor-General’s office to divert attention from its constitutional mandate to focus on the case, potentially affecting the integrity of the audit process.

Justice Bahati Mwamuye, who certified the petition as urgent last month, directed the parties involved to address whether the case should be heard by more than two judges.

The government has requested that the matter be heard as a priority, citing concerns that the audit process could be undermined by the petition. A decision on whether the case will proceed will be made on June 23, 2025.

Dr. Chris Kiptoo, the Treasury Principal Secretary, further confirmed in an affidavit that a high-level meeting was held on September 25, 2024, between Treasury officials and the Auditor-General.

This meeting was to lay the groundwork for a forensic audit aimed at verifying the accuracy of the country’s public debt stock and reviewing the entire debt acquisition process.

Kiptoo’s statement adds weight to the government’s argument that the court case risks disrupting a critical national process.

The dispute comes at a time when the country is grappling with concerns over the rapidly growing public debt.