https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9075

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E216 OF 2025** **OKIYA OMTATAH OKOITI...................................................1ST PETITIONER** **NYAKINA WYCLIFE GISEBE...............................................2ND PETITIONER** **BERNARD MUCHIRI MUCHERE........................................ 3RD PETITIONER** **DR. MAGARE-GIKENYI BENJAMIN...................................4TH PETITIONER** **KELVIN SAITOTI NAIKUNI..................................................5TH PETITIONER** **OLIVE NAISINKEI AMBROSE..............................................6TH PETITIONER** **DR. DANCAN OTIENO ONYANGO......................................8TH PETITIONER** **NAOMI NYAKERARIO MISATI...........................................9TH PETITIONER** **VERSUS** **H. E. (FORMER) PRESIDENT UHURU** **MUIGAI KENYATTA……………………………………….1ST RESPONDENT** **THE NATIONAL EXECUTIVE............................................2ND RESPONDENT** **THE CABINET SECRETARY** **FOR THE NATIONAL TREASURY.....................................3RD RESPONDENT** **THE PRINCIPAL SECRETARY** **FOR THE NATIONAL TREASURY.....................................4TH RESPONDENT** **THE DIRECTOR GENERAL,** **PUBLIC DEBT MANAGEMENT OFFICE..........................5TH RESPONDENT** **THE HON. ATTORNEY GENERAL....................................6TH RESPONDENT** **THE CONTROLLER OF BUDGET......................................7TH RESPONDENT** **THE AUDITOR GENERAL...................................................8TH RESPONDENT** **THE NATIONAL ASSEMBLY..............................................9TH RESPONDENT** **FORMER CONTROLLER OF BUDGET** **AGNES ODHIAMBO............................................................10TH RESPONDENT** **FORMER AUDITOR GENERAL** **EDWARD OUKO..................................................................11TH RESPONDENT** **FORMER ATTORNEY GENERAL** **PROF. GITHU MUIGAI.......................................................12TH RESPONDENT** **FORMER TREASURY CABINET SECRETARY** **HENRY ROTICH..................................................................13TH RESPONDENT** **FORMER TREASURY** **PRINCIPAL SECRETARY................................................. 14TH RESPONDENT** **FORMER TREASURY** **CABINET SECRETARY UKUR YATANI.........................15TH RESPONDENT** **FORMER TREASURY CABINET SECRETARY** **NJUGUNA NDUNG’U..........................................................16TH RESPONDENT** **THE CONTROLLER OF BUDGET** **MARGARET NYAKANG’O................................................17TH RESPONDENT** **THE AUDITOR GENERAL** **NANCY GATHUNGU...........................................................18TH RESPONDENT** **THE GOVERNOR,** **CENTRAL BANK OF KENYA............................................19TH RESPONDENT** **THE ETHICS & ANTI-CORRUPTION** **COMMISSION......................................................................20TH RESPONDENT** **FORMER EACC CEO/ SECRETARY** **HALAKHE D. WAQO...........................................................21ST RESPONDENT** **INTERNATIONAL MONETARY FUND (IMF)................22ND RESPONDENT** **AND** **THE SENATE OF KENYA........................................1ST INTERESTED PARTY** **LAW SOCIETY OF KENYA.....................................2ND INTERESTED PARTY** **KATIBA INSTITUTE................................................3RD INTERESTED PARTY** **KENYA HUMAN RIGHTS COMMISSION............4TH INTERESTED PARTY** **KENYA NATIONAL** **COMMISSION ON HUMAN RIGHTS....................5TH INTERESTED PARTY** **TRANSPARENCY INTERNATIONAL..................6TH INTERESTED PARTY** **THE INSTITUTE FOR** **SOCIAL ACCOUNTABILITY (TISA)....................7TH INTERESTED PARTY** **INTERNATIONAL COMMISSION** **OF JURISTS (ICJ-KENYA)………………………..8TH INTERESTED PARTY** **THE KENYA DEBT ABOLITION** **NETWORK (KDAN)..................................................9TH INTERESTED PARTY** **NATIONAL TAXPAYERS** **ASSOCIATION (NTA).............................................10TH INTERESTED PARTY** **COMMITTEE FOR THE ABOLITION** **OF ILLEGITIMATE DEBTS (CATDM)...............11TH INTERESTED PARTY** **RULING** **Introduction and house-keeping** 1. The petition dated 24.4.2025 is in the public interest, filed pursuant to **Articles 22 and 258 of the Constitution** challenging the constitutionality of public borrowings amounting to **Kshs. 6,950,163,132,328** incurred over the 10-year period spanning financial years 2014/2015 to 2025/2025 up to 30.11.2024 and including the controversial Eurobond loans aggregating to **7.1 Billion**. 2. Four separate applications were filed by the 10th, 11th, 17th and 18th respondents. The applicants, namely **Former Controller of Budget, Agnes Odhiambo**, **Former** **Auditor General,** **Edward Ouko, The Controller of Budget, Margaret Nyakang’o** and **the** **Auditor General,** **Nancy Gathungu**, seek substantially similar reliefs; striking out of the petition as against them and removing them from the proceedings on the basis that they have been improperly joined and that no reasonable cause of action is disclosed against them. 3. Thus, we shall consider each application and determine them in this composite ruling because they are capable of being so dealt with. For purposes of pointedness and to avoid muddle-up in our analysis, we shall identify each application using the distinct name of the applicant and the particular petitioner who filed a response or submissions thereto. Reference to the A-G invites no confusion. **Agnes Odhiambo’s Application** 1. The Former Controller of Budget, **Agnes Odhiambo (Ms. Odhiambo)**, filed the notice of motion dated 19.8.2025 supported by the affidavit sworn by her on 19.8.2025 and written submissions dated 4.5.2026. 2. The application was brought mainly under **Articles 3, 10 (2) (b), 22 (1), 23 (1), 19 (20), 20 (4), 159 and 258 of the Constitution**. 3. Ms. Odhiambo served as the Controller of Budget from 2011 to 2019. She was appointed on 11.8.2022. Her case is that the petition is not grounded on any conceivable cause of action against her and that the matters complained of in the petition by the 1st to 9th petitioners concern actions taken by her strictly in the course of her constitutional and statutory duty. 4. She relied on **section 15 (2) of the Controller of Budget Act 2016** which provides that nothing done by the Controller of Budget or any person working under the instructions of the Controller of Budget or any person working under the instructions of the Controller of Budget shall, if done in good faith for the purposes of executing the powers, functions or duties of the Controller of Budget under the Constitution, this Act or any other law, render the Controller of Budget, officer or agent personally liable for any action, claim or demand. 5. She argued that she has been joined to the petition without any factual or legal basis and in the absence of any evidence of bad faith, malice, corruption or other grounds warranting personal liability. 6. She cited **Article 236 (b) of the Constitution** to the effect that a public officer shall not be victimized or discriminated against for having performed the functions of office in accordance with the Constitution or any other law. 7. She also relied on **sections 5 and 15 of the Controller of Budget Act** to argue that she cannot be held liable for the execution of her duties duly executed in good faith. She relied on the High Court decision in **Moses Wamalwa Mukamari v John O. Makali & 3 others (Civil Suit 42 of 2012)** **[2012] eKLR.** 8. She asserted that it is in the interest of justice that she be struck out as a misjoinder party and that the petition should proceed only against the 7th respondent, **the Controller of Budget**, in its official capacity. **Application by the Office of the Controller of Budget** 1. **The Office of the Controller of Budget** filed the notice of motion dated 14.7.2025, supported by the affidavit sworn by **Dr. Margaret Nyakang’o**. 2. The application was brought under **Articles 236 (a) of the Constitution** and **Rule 5 (d) of the Constitution (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules**. 3. Dr. Nyakang’o deposed that she was appointed as the Controller of Budget on 4.12.2019. Her main contention is that she has not been accused of bad faith, corruption, or criminal conduct, and no factual or evidentiary foundation has been laid to warrant her personal inclusion in the proceedings. 4. She argued that as currently framed, the petition constitutes a misjoinder of parties and offends the principles of fairness and judicial economy. 5. Dr. Nyakang’o asserted that her continued presence in her personal capacity subjects her to unlawful litigation, contrary to public policy and the protection accorded to constitutional office holders under the Constitution and statute. 6. She also relied on **Article 236 (b) of the Constitution** and **section 15 of the Controller of Budget Act.** 7. Dr. Nyakang’o submitted that the 7th respondent, the Office of the Controller of Budget, is the proper legal entity to respond to allegations concerning the constitutional office. 8. She prayed for her name to be struck out of the proceedings. **Applications by Edward Ouko and Nancy Githungu** 1. **Mr. Ouko and Ms. Githungu** filed the chamber summons dated 24.4.2026 under **Order 1 Rules 10(2) and 14 of the Civil Procedure Rules**. The applications were supported by their affidavits sworn on 24.4.2026. 2. **Mr. Ouko** is the former Auditor General, serving from August 2011 to August 2019. **Ms. Githungu** is the current head of the 8th respondent, the Auditor General. Her gravamen is that they have been joined in their personal capacities, yet the petition raises allegations regarding exercise of their constitutional mandate as the former and current Auditor General. 3. Both **Mr. Ouko** and **Ms. Githungu** contended that their joinder contravenes **Articles 248 (3), 250 (9) and 236 (a) of the Constitution**, **section 71 of the Public Audit Act** and **section 206 of the Public Finance Management Act**. 4. They argued that they cannot be sued in their personal capacity and held personally liable for any acts committed in good faith while exercising their mandate under **article 229 of the Constitution** and **sections 7 and 71 of the Public Audit Act**. 5. They submitted that the 8th respondent is an independent office under **article 248 (3) of the Constitution** and that under **article 250 (9)**, the holder of an independent office is not liable for anything done in good faith in the performance of a function of office. 6. They argued that **section 206 of the Public Finance Management Act** shields public officers acting under lawful authority and within the scope of their functions from personal liability, absent proof of bad faith, fraud or conduct outside the scope of lawful mandate. 7. They posited that if the petition proceeds with their misjoinder, it will constitute an abuse of the process of this court. They also highlighted that there were neither express or implied link of any alleged wrongdoing to acts or omissions on their part nor substantive reliefs sought against them. They further posited that their joinder in the petition is without justification and constitutes a capricious attempt to victimize, discriminate and occasion them grave prejudice. 8. Thus, each of them urged the court to allow their respective application in the interest of justice. **Responses** **Mr. Muchiri’s response** 1. The 4th petitioner, **Bernard Muchiri Muchere**, filed a replying affidavit sworn on 5.1.2026 in response to Ms. Odhiambo’s and Dr. Nyakang’o’s applications. He also filed written submissions dated 15.1.2026. 2. Mr. Muchere contended that the two applications are frivolous and a malicious attempt to hide from culpability. He asserted that Ms. Odhiambo ought to have filed a response to the petition instead of filing the application seeking to be struck out from the proceedings. 3. He contended that the application is founded on a boldfaced violation of the Constitution and the Controller of Budget Act. That it is an attempt to cover up their deliberate and willful action to conceal public debt incurred outside the law by failure to carry out her responsibilities under **Articles 228 (4) and (5) of the Constitution**. 4. He asserted that the proceedings were instituted in good faith and in the public interest in defence of the Constitution under **articles 3(1), 22(1), (2) (c) and 258 (1) and (2) (c) of the Constitution**. 5. He argued that the 7th respondent, **the Controller of Budget**, being an office, cannot respond to the claim of deliberate and willful violation of the constitution by the 10th respondent. 6. He asserted that Ms. Odhiambo is personally culpable of approving the odious debts of approximately Kshs. 2.8 Trillion by misusing authority vested on her under articles 228 (4) and (5) by dint of her appointment under article 228 (1), (2) and (3) of the Constitution. 7. He submitted that the Constitution clearly separated the individual state officer from the office. That after being sworn in, in her own name, Ms. Odhiambo and Dr. Nyakang’o were accorded personal responsibilities to oversee implementation of the budget of the national and county governments by authorizing withdrawals from, among others, the consolidated fund under Article 206, authorize withdrawal of public funds to finance projects as authorized by the Constitution or the Appropriation Act. 8. He highlighted some of the claims made against Ms. Odhiambo and Dr. Nyakang’o in the petition. He specifically mentioned the claim that Ms. Odhiambo violated the Constitution by submitting a misleading national government budget implementation review report for FY 2014/15 purporting that the Government secured USD 2 billion (Kshs. 178 Billion) sovereign bond (Eurobond) yet it was not authorized by the Appropriation Act 2013. That the bonds were transacted in an offshore account, outside her jurisdiction, not the consolidated fund. 9. That Ms. Odhiambo authorized withdrawal of loan revenue of **Kshs. 4.3 Trillion** while the actual borrowings approved by the National Assembly in the respective appropriations Acts was about **Kshs. 1.5 Trillion**. 10. Mr. Muchere highlighted that the petition asserts that the Controller of Budget (both past and present) authorized withdrawals from the Consolidated Fund for repayment of sovereign debts that were unconstitutionally and illegally incurred. 11. Mr. Muchere argued that **article 236** and **section 15 (2) of the Controller of Budget Act** was not meant to protect the former and current office holders from deliberately acting contrary to article 228. He asserted that duty is personal and non-delegable. 12. Mr. Muchere relied on **D. T. Dobie Co. Ltd v Muchina [1982] KLR** 1 to argue that striking out of names is a draconian remedy granted only where pleadings are so hopeless that they cannot be cured by amendment. 13. He urged the court to dismiss the application with costs for want of merit and the petition be heard on merit. 14. The 4th petitioner, **Bernard Muchiri Muchere**, also filed a replying affidavit sworn on 3.6.2026 in response to the other two applications in which he echoes Hon. Omtatah’s core arguments which will be discussed in extenso below. Save, he added that the applications for striking out the applicant’s names from the proceedings should be determined at the main hearing because it is not plain and obvious that no cause of action that exists against the 18th respondent. He argued further that all audit failures, constitutional violations and concealment of odious debts that occurred during Mr. Ouko’s term have been continued, perpetuated and or not rectified by Ms. G athungu. **Mr. Omtatah’s response** 1. The 1st petitioner by **Okiya Omtatah Okoiti** filed a replying affidavit sworn on 28.4.2026 in response to Mr. Ouko’s and Ms. Githungu’s applications and a further 2nd replying affidavit sworn on 28.4.2026 in response to Ms. Githungu’s application. 2. **Mr. Omtatah** asserted that Mr. Ouko and Ms. Githungu are proper and necessary parties. He pointed out that Mr. Ouko was the auditor general during the material period (financial years 2013/2014, 2014/2015, 2015/2016 and 2017/2018) when the impugned audit reports were prepared and issued. He was the constitutional actor who directed and approved the issuance of those reports. 3. He asserted that Mr. Ouko is sued primarily in his official capacity as the former holder of the office of the Auditor General and alternatively in his personal capacity under **article 226 (5) of the Constitution** for the direct consequences of his acts and omissions while holding that office. 4. **Mr. Omtatah** submitted that under the said article, a holder of public office who directs or approved the use of public funds contrary to law is personally liable for any loss arising from that use. 5. He challenged the claim of immunity under **articles 248 (3), 250 (9), 236 (a) of the Constitution, section 71 of the Public Audit Act and section 206 of the Public Finance Management Act**. He asserted that the claim of immunity lacks merit and that article 226 (5) overrides any general immunity provisions where a public officer has directed or approved the use of public funds contrary to law. 6. **Mr. Omtatah** also challenged the defence of good faith under **article 250 (9).** He asserted that good faith is a question of fact to be proved at trial and requiring evidence, not a ground for striking out a party at the pleading stage. He also asserted that the defence of good faith is not absolute and can be displaced by evidence of malice, improper motive. 7. **Mr. Omtatah** highlighted some of the claims raised against Mr. Ouko and Ms. Githungu in the petition. That Mr. Ouko directed or approved the issuance of audit reports that confirmed that the Eurobond proceeds were deposited in offshore accounts; failed to confirm whether public money had been applied lawfully and misled the public by stating that investigations were ongoing only to allow those investigations to disappear from subsequent reports. 8. Mr. Omtatah also highlighted some of the substantive reliefs sought by the petitioners against Mr. Ouko including an order compelling him to refund the National Treasury the principal amounts and costs. 9. Mr. Omtatah disputed the claim that the joinder of the two was victimization, discrimination and an abuse of the court process, asserting that the petition seeks to hold them to account for their actions and omissions while in office. 10. Mr. Omtatah argued that instructions from a superior or adherence to professional standards cannot justify constitutional violations. He relied on **article 229 (6)** on the requirement that the Auditor General confirms whether public money has been applied lawfully. 11. Mr. Omtatah asserted that striking out Mr. Ouko and Ms. Githungu from the petition would prevent the court from fully understanding the chain of accountability for the Eurobond fraud; fragment the dispute and impair the petitioners’ ability to obtain effective remedies under articles 22 and 258; undermine the principle of personal accountability under article 226 (5) and allow former public officers to evade constitutional scrutiny simply because they no longer hold office. 12. He urged the court to dismiss the applications with costs for want of merit. **Petitioner’s Submissions** 1. In response to the four applications, the 1st and 4th petitioners filed written submissions dated 28.4.2026 and the 9th petitioner filed written submissions dated 15.1.2026. 2. They contended that the applications are misconceived and ought to be struck out as they are classic shields of institutional and personal impunity that the court must reject. 3. They submitted that the joinder of Mr. Ouko and Ms. Githungu is justified, necessary and in the public interest. They asserted that proceeding with Mr. Ouko and Ms. Githungu is not an abuse of process and does not victimize them but holds them accountable as required by the Constitution. They argued that striking out their names would shield key actors from oversight failure, prevent full ventilation of the facts and undermine transformative intent of the Constitution. 4. They asserted that various doctrines compel the retention of Mr. Ouko and Ms. Githungu, namely, the doctrine of derivative unconstitutionality, illegality, ostensible authority, public policy and legitimate expectation. 5. They submitted that the Auditor General’s failures flow from and perpetuate the original illegal borrowings. The entire oversight chain is tainted. That omissions and reports that did not expose ultra vires debt creation are themselves illegal. That no constitutional or statutory authority to shield unconstitutional acts or shield personal responsibility. That allowing former constitutional office holders to escape accountability for enabling massive debt fraud offends articles 10, 73, 201, and 232 on the values and principles of public service. That Kenyans legitimately expected the Auditor General to act as a robust guardian of public funds, not a passive enabler. That personal surcharge under Article 226(5) is the appropriate remedy for the loss occasioned. 6. They urged the court to dismiss Mr. Ouko’s and Ms. Githungu’s applications; affirm that Mr. Ouko is a proper and necessary party; uphold the personal liability claims under **article 226 (5**) and direct that the petition proceeds against him on the merits. **Submissions by the Auditor General, Edward Ouko and Nancy Githungu** 1. They filed written submissions dated 11.5.2026. 2. They submitted that the 11th respondent is not a proper and necessary party to the petition because the petition can be heard and determined in his absence without occasioning any prejudice to either of the parties to the petition or the public. That no evidence has been adduced by the petitioners to demonstrate any constitutional violation on his part in his personal capacity. 3. They contended that under article 229 of the Constitution, the Auditor General is an independent juristic person with the power to sue and be sued in its own name. That unless otherwise provided by law, the Office of the Auditor General and not its head and his or her staff ought to be sued in its own name. That **article 250 of the Constitution** and **section 71 of the Public Audit Act** insulate the members of the commission and a holder of an independent office from personal liability in terms of anything done in good faith in the performance of their constitutional mandates. 4. They relied on **Ethics and Anti-Corruption Commission** & **5 others** v **Henry Morara Ongwenyi & 3 others [2019] eKLR** where the court struck out the joinder of parties as their joinder was improper and unnecessary as there was no allegation that they had acted in bad faith. 5. They submitted that the petition does not plead with any degree of precision or particularity any specific act, omission, directive, bad faith, illegality, fraud, negligence or ultra vires conduct attributable to the 11th respondent in his personal capacity to disclose a reasonable constitutional or statutory cause of action against him. That the petitioners' allegations against the 11th respondent is framed in broad and institutional terms and are related to the functions of the 8th respondent rather than to any personal conduct of the 11th respondent. In support, they relied on **Dr. Rev. Timothy Njova v Attorney General & another [2014] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR.** 6. They also relied on **Leonard Otieno v Airtel Kenya Limited** **[2018] eKLR** on the importance of presentation of clear evidence in support of violation of constitutional rights. 1. On a without prejudice basis, they submitted that the finding of personal culpability against the 11th Respondent can only crystallize upon the forensic audit on public debt being completed by the 8th Respondent, the 9th Respondent considering the forensic audit and taking appropriate action towards the findings in the report and there being an investigation by the 20th respondent, in undertaking its mandate in law. **Attorney General’s (AG) submissions** 1. The AG filed written submissions dated 8.5.2026 addressing applications by the 10th and 17th respondents to have their names struck out on account of protection against personal liability. 2. The AG emphasized that public officers (including state officers) are protected from personal liability for any act or omission done or omitted in good faith in carrying out any duty, or exercising any power or function of the office. 3. The AG also cited Article 236(a) of the Constitution which accords public officers protection from victimization for having performed the functions of office and other relevant statutes extending the protection to the particular office holder. The article reads: **236. A public officer shall not be-** **(a) victimized or discriminated against for having performed the functions of office in accordance with this Constitution or any other law.** 1. The AG relied on **Harlow v Fitzgerald 457 US 800 (1982)** where the US Supreme Court qualified the protection against personal liability principle and stated that immunity could be granted to government officials and judicial officers if an official believed in ‘good faith’ that his conduct was lawful and that the conduct was objectively reasonable. 2. The AG cited **Black’s Law Dictionary, Ninth Edition at page 713** whichdefines good faith to mean: **“A state of mind consisting in (1) honesty in belief or purpose, (2) faithfulness to one's duty or obligation, (3) observance of reasonable commercial standards of fair dealing in a given trade or business, or (4) absence of intent to defraud or to seek unconscionable advantage.”** 1. Concluding that the test in the **Harlow case** was of objective reasonableness in that the conduct of the officials is evaluated to ascertain whether they acted reasonably under the circumstances thus warranting immunity. 2. The AG also relied on **Bellevue Development Company Ltd v Gikonyo & 3 others (Petition 42 of 2018) [2020] KESC 43 (KLR) (15 May 2020) (Judgment)** where the Supreme Court of Kenya defined the objective reasonable test to allow protection of judicial officials performing discretionary functions, so long as the functions did not violate clearly established constitutional or statutory rights of which a reasonable person would have been aware of. 3. The AG further relied on the Constitutional Court of South Africa decision in **Grootboom v Ostenberg Municipality 2000 (3) BCLR 227 (C)** on the question of reasonableness; **In the Matter of the National Land Commission (Advisory Opinion Reference 2 of 2014) [2015] KESC 3 (KLR) (2 December 2015) (Advisory Opinion)** on the scope of independence ofcommissions and independent offices; **Pattni & Another v Republic [2001] KLR 264** 4. According to the AG, even if the decisions taken by the named officers in the matter were taken or found to be wrong (which is vehemently denied), the same does not necessarily elevate the matter to a constitutional issue to warrant a party aggrieved thereby to institute proceedings by way of a Constitutional Petition. They cited **Pattni & Another vs. Republic [2001] KLR 264** in which **Harrikson vs. Attorney General of Trinidad and Tobago [1980] AC 265** was cited with approval: **“The notion that whenever there is failure by an organ of government or a public authority or public officer to comply with the law necessarily entails the contravention of some human right or fundamental freedom guaranteed to individuals by the chapters of the Constitution is fallacious..**. 1. The AG suggested that in the event of alleged breach of **Chapter 6 of the Constitution** on leadership and integrity in the performance of functions, the best route is through the Ethics and Anti-Corruption Commission. 2. The AG relied on **Article 79 of the Constitution** as read with **section 11 (1) (d) of the Ethics and Anti-Corruption Commission Act** which mandate the **EACC** to investigate and recommend to the **Director of Public Prosecutions (DPP)** any act of corruption, bribery or economic crimes or violation of codes of ethics or other matter prescribed thereunder. 3. The Attorney-General was emphatic; ‘that seeking to hold former office holders personally liable for decisions taken or not taken in good faith is in itself unconstitutional. It is not upon the Petitioners or this Honourable Court to direct key institutions when and how to perform their functions. The role of the Court is strictly to determine whether the exercise of those functions meets the constitutional threshold.’ 4. The AG prayed that the names of the 10th and 17th respondents be struck out of the proceedings. **Petitioner’s Reply** 1. The petitioners filed joint written submissions dated 5.6.2026 in reply to the submissions by the Auditor General, **Mr. Ouko** and **Ms. Githungu**. 2. The petitioner submits that the immunity under **article 250(9) and section 71 of the Public Audit Act** is not absolute, as it only protects acts done in good faith, which must be proved and cannot be presumed where allegations of deliberate concealment, bad faith, and constitutional violations are raised. Further, **article 226(5)** imposes personal liability on public officers who unlawfully direct or approve the use of public funds, thereby overriding general immunity where bad faith or gross misconduct is alleged. The petition pleads specific audit failures and alleged concealment of financial irregularities, justifying the joinder of both current and former Auditor Generals to enable effective accountability, response to allegations, and potential personal liability. **Analysis and Determination** **Issues** 1. Emerging from the pleadings, the applications by the 10th, 11th, 17th and 18th respondents, the responses, the rival submissions and authorities relied on, are two inextricable issues to wit: - 2. **Whether the 10th, 11th, 17th and 18th respondents are necessary parties or persons whose presence is necessary in the petition; and** 3. **Whether their names ought to be struck out from the proceedings.** 4. The claim of immunity for public officers in exercise of their duties in good faith and accountability thereof will be discussed and dealt with within the framing and context of the issues stated above. **Power to strike out party from proceedings** 1. **Rule 5 (d) of the Constitution of Kenya (Protection of rights and Fundamental Freedoms) Practice and Procedure Rules (Hereafter The Mutunga Rules)** provides that: - **“the Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear just—** 1. **order that the name of any party improperly joined, be struck out”** 2. The power of the court to strike out a party from proceedings is discretionary and ought to be exercised reasonably not capriciously, according to the unique circumstances of a case. **Civicon Limited v Kivuwatt Limited & 2 others [2015] KECA 588 (KLR)** 3. Other relevant considerations to this subject are: 4. **Rule 2 of the Mutunga Rules** which defines a respondent to mean a person who is alleged to have denied, violated or infringed or threatened to deny, violate or infringe a right or fundamental freedom. 5. **Rule 5 of the Mutunga Rules** which provides that where a petitioner is in doubt as to the people from whom redress should be sought, the petitioner may join two or more respondents in order that the question as to which of the respondent is liable and to what extent, may be determined as between all parties. 6. The court shall accordingly be guided within the understanding that the law on joinder or striking out of parties in constitutional proceedings is to ensure that only and proper parties are before the court; necessary parties ‘or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter.’ Rule 5 of the Mutunga Rules. **Necessary party test** 1. The key tests for determining whether a party is necessary party were set out in **Werrot & Company Ltd & Others v Andrew Douglas Gregory & Others, [1998] eKLR** as follows: - **“i. there must be a right to some relief against such a party in respect of the matter involved in the proceeding in question and** **ii. it should not be possible to pass an effective decree in the absence of such a party.”** 1. In addition to the foregoing: - **“A party may be joined in a suit, not because there is a cause of action against it, but because that party’s presence is necessary in order for the court to effectually and completely adjudicate upon and settle all the questions involved in the cause or matter...” Deported Asians Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55 (SCU), Meme v. Republic, [2004] 1 EA 124 and Communications Commission of Kenya & 4 others v Royal Media Services Limited & 7 others [2014] eKLR** 1. Further insights in **African Centre for Corrective and Preventive Action 31 others v Google Kenya Limited 4 others Ideate Tech Policy Africa Limited (Amicus Curiae) (Petition E068of2023) 2026 KEHC 7021 (KLR)**, that: - **“The fact that no relief has been claimed against the petitioner does not entitle the petitioner to a discharge from the proceedings if his presence is necessary for the effectual determination of all the issues involved in the case.** 1. The 10th, 11th, 17th and 18th respondents are the former Controller of Budget, former Auditor General, current Controller of Budget and current Auditor General, respectively. 2. The petitioners asserted that the applicants are necessary and proper parties to the petition as they were in office during the taking out of the impugned public borrowings. They submitted that the applicants have been sued in their personal capacities under **article 226 (5) of the Constitution** for the direct consequences of their acts and omissions while holding office. 3. The applicants challenge their joinder as respondents in the petition in their personal capacities. They argue that there is no legal basis for their joinder in their personal capacities as they cannot be held liable for execution of their official duties duly executed in good faith. 4. Notably, the 10th and 11th respondents have not claimed that they were not in office during the taking out of the impugned public borrowings. The 17th and 18th respondent deposed that they are the current Controller of Budget and Auditor General, respectively. 5. **Article 226 (5) of the Constitution** provides: - **(5) 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.”** 1. The said article is directed at officers who direct or approve use of public funds contrary to law. Its main objective is to impose a personal responsibility for financial decisions that result in loss to the public, thereby shifting liability from the public entity or office to the individual officer responsible for the unlawful action or omission. 2. It is also a relevant consideration that the article applies **‘whether the person remains the holder of the office or not.’** Covering former and current office holders. Having settled that issue, we move on to tackle the claim of immunity and personal liability in a continuum of whether they are necessary parties in these proceedings. **Immunity vs. personal liability** 1. The 11th and 18th respondents also relied on **Moses Wamalwa Mukamari v John O. Makali & 3 others [supra]** to assert that they cannot be held liable for execution of duties in good faith. Ample caselaw was also cited to assert this position taken by the respondents generally. 2. The court is alive to the fact that the principle of immunity of public officers in exercise of their duties in good faith is a critical constitutional safeguard. And, Courts are called upon to preserve the immunity for proper functioning of the public officers concerned and to uphold the integrity of the office they hold, yet, ensuring accountability. Hence, the objective reasonable test. See **Harlow v Fitzgerald 457 US 800 (1982),** **Bellevue Development Company Ltd v Gikonyo & 3 others (Petition 42 of 2018) [2020] KESC 43 (KLR) (15 May 2020) (Judgment)** 3. This petition presents a unique mix. On the one hand, a claim of immunity under **article 250 of the Constitution and statutes.** On the other, a claim of personal liability imposed under **article 226(5) of the Constitution**. The seeming tension calls for proper application of the objective reasonable test based on the peculiar circumstances and constitutional context of this case. 4. The applicants argued; a) that the immunity may only be lifted where the acts or omissions complained of were not in good faith; and b) that any personal surcharge may be imposed following an audit or investigation carried out in accordance with the law. They also argued that the petitioners have not stated with a degree of precision the violations or omissions they committed. On that basis, they did not consider themselves to be necessary parties in these proceedings or amenable to be sued in their personal capacity. 5. The petitioners were of a different view; that good faith was a factual phenomenon that should be established in the trial rather than in an application to strike out their names. They also stated that the claim of personal liability under **article 226(5) of the Constitution** applies to current as well as former holders of office. To them, the applicants are necessary parties for a complete determination of the issues and an effective remedy to be attained. 6. We do note that, contrary to the submissions by the applicants, the petitioners have pleaded claims against the 10th, 11th, 17th and 18th respondents in relation to the subject matter of the petition. They alleged, inter alia, specific audit failures and alleged concealment of financial irregularities, bad faith, and constitutional violations by the applicants in relation to the borrowing, legitimacy and expenditure thereto of the public debt in question. Further, one of the articles upon which the petition is premised is **article 226(5)** which imposes personal liability on public officers who unlawfully direct or approve the use of public funds, thereby providing the functional foundation for determining whether the applicants should be removed from these proceedings. 7. The article falls under **PART 6 – CONTROL OF PUBLIC MONEY** and the roles of the applicants thereto cannot be overstated. 8. In our considered view, whereas personal surcharge may be imposed as a result of an audit or investigations on public debt, care should be taken not to devalue the purport and effects of **article 226(5) of the Constitution** into a merely administrative surcharge provision or tool. It is a substantive constitutional provision intended to reinforce accountability and transparency in the procurement, use and management of public money. The constitution is libertarian, but twin freedom and accountability; thus, the article would be a basis for a constitutional remedy in a petition brought under article 165(3), 22 and 23 of the Constitution. 9. We are glad to note that despite the strong position taken by the Attorney-General on protection against personal liability of former as well as current office holders, the AG admitted that; ‘The role of the Court is strictly to determine whether the exercise of those functions meets the constitutional threshold.’ Directly adverting to and directing attention towards the court’s jurisdiction under article 165(3)(d)(ii) of the Constitution to hear and determine: ‘the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution.’ 10. Of notable value and relevance also is that the petition was certified by the court as raising a substantial question of law under clause (3)(b) or (d) as to be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice. **Article 165(4) of the Constitution**. 11. The applications before us are therefore, to be determined on the peculiar circumstances of the case and the specific provisions of the Constitution which imposes personal liability on the relevant public officer **‘whether the person remains the holder of the office or not.’** Accordingly, we find that the petitioners have established that the applicants are necessary parties; and in any event, the presence of the applicants is necessary for the complete determination of all the issues and effective remedy in the petition. 12. In light thereof, we find that claims by the 10th, 11th, 17th and 18th respondents that their joinder is; a) meant to victimize and discriminate them; and b) an abuse of the court process; were not substantiated. 13. As a consequence, we find no merit in the 10th, 11th, 17th and 18th respondents’ applications. They are dismissed with no order as to costs given the nature of these proceedings. **Dated, signed and delivered at Nairobi through Microsoft Teams online Application this 25th day of June, 2026** **-----------------** **F. Gikonyo M.** **Judge** **----------------** **R. E. Aburili** **Judge** **----------------** **M. Ado** **Judge**