State moves to block Omtatah’s Sh4.6 trillion debt suit, citing ongoing audit

The Kenyan government, through Attorney-General Dorcas Oduor, is seeking to have a petition filed by Busia Senator Okiya Omtatah and eight other petitioners struck out.

The petition calls for accountability over the country’s rising public debt, which has reached a staggering Sh4.6 trillion.

Oduor argues that allowing the case to proceed would interfere with an ongoing audit being conducted by the Auditor-General’s office.

In her response to the petition, Oduor explained that the Auditor-General is currently conducting an extensive audit of Kenya’s public debt from the time of Independence in 1963 up until the end of the last financial year.

She stressed that the audit, which is essential for the country’s financial oversight, could be compromised by the court proceedings. Oduor contended that the case, if allowed to continue, would put the ongoing audit at risk and could prejudge its findings.

The petition, filed by Omtatah, targets former President Uhuru Kenyatta and senior officials from his administration.

The petitioners accuse them of being responsible for the borrowing of Sh4.6 trillion in what Omtatah has referred to as “odious debt” between the 2014/2015 and 2021/2022 financial years.

Surcharge Uhuru

Omtatah is asking the court to hold the former President and his administration personally liable for the debts and surcharge them under Article 226(5) of the Constitution.

However, in her submission to the court, Oduor, represented by Deputy Chief State Counsel Samwel Kaumba, argued that compelling the government to respond to the petition would force the Auditor-General’s office to engage in court proceedings, potentially undermining its constitutional mandate.

Kaumba pointed out that the Auditor-General had already started an audit of the public debt long before the petition was filed. He said the audit, which started on September 16, 2024, is a crucial exercise that should not be hindered by legal action.

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

He emphasised that the exclusive legal mandate for auditing public debt lies with the Auditor-General under Article 229(4)(g) of the Constitution, and that the petition risks interfering with that process.

The petition was first brought to court last month, and Justice Bahati Mwamuye certified it as urgent.

However, before proceeding further, the judge directed the parties to address the issue of whether the matter should be heard by a bench of more than two judges. A ruling on this issue is expected on June 23, 2025.

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• citing ongoing audit

The government has requested that its application to strike out the case be heard on a priority basis, warning that the ongoing audit could be severely undermined if the case is allowed to proceed in parallel with the audit.

In a supporting affidavit, Treasury Principal Secretary Chris Kiptoo confirmed that a high-level meeting had taken place on September 25, 2024, between Treasury officials and the Auditor-General.

The meeting was to initiate a forensic audit to verify the current public debt stock and assess its acquisition process.

This audit is expected to look into the conceptualisation and utilisation of the debt, adding further weight to the government’s argument that the legal proceedings should not interfere with the audit process.