https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9023

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **(CONSTITUTIONAL & HUMAN RIGHTS DIVISION)** **PETITION NO. E216 OF 2025** **BETWEEN** **OKIYA OMTATAH OKOITI 1ST PETITIONER** **NYAKINA WYCLIFE GISEBE 2ND PETITIONER** **ELIUD KARANJA MATINDI 3RD PETITIONER** **BERNARD MUCHIRI MUCHERE 4TH PETITIONER** **DR. MAGARE-GIKENYI BENJAMIN 5TH PETITIONER** **KELVIN SAITOTI NAIKUNI 6TH PETITIONER** **OLIVE NAISINKEI AMBROSE 7TH 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** **KAMAU THUGGE 14TH RESPONDENT** **FORMER TREASURY CABINET SECRETARY** **UKUR YATANI 15th RESPONDENT** **FORMER TREASURY CABINET SECRETARY** **NJUGUNA NDUNGU 16TH RESPONDENT** **THE CONTROLLER OF BUDGET** **MARGARET NYAKANG’O 17TH RESPONDENT** **THE AUDITOR GENERAL NANCY GATHUNGU 18TH RESPONDENT** **THE GOVERNOR, THE** **CENTRAL BANK OF KENYA 19th RESPONDENT** **THE ETHICS AND ANTI-CORRUPTION 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 (CADTM) 11TH INTERESTED PARTY** **AND** **CENTRE FOR LEGAL AID AND CLINICAL** **LEGAL EDUCATION (CLACLE) AMICUS CURIAE** **RULING** **(On the Notice of Motion dated 5 May 2025)** **Introduction and Background** 1. This Ruling determines the Notice of Motion dated 5th May 2025 taken out by the **6th Respondent,** the **Hon. Attorney General,** seeking principally that this Petition be struck out on the grounds that the issues raised therein fall within the constitutional and statutory mandate of the Auditor-General and are currently the subject of an ongoing forensic audit undertaken pursuant to Article 229 of the Constitution and section 37 of the Public Audit Act. 2. The Application is predicated on the grounds on its face and is supported by the affidavit sworn on the same date by **Dr. Chris Kiptoo, Principal Secretary, National Treasury.** 3. The Applicationhas receivedsupport from the National Assembly (**9th Respondent**), the Auditor-General (**8th Respondent**), the former Auditor-General, EdwardOuko (**11th Respondent**), the current Auditor-General, Nancy Gathungu (**18th Respondent**), and the Governor of the Central Bank of Kenya (**19th Respondent**). 4. In a nutshell, it is the case of the Attorney General and Respondents in support of the application (hereinafter collectively referred to as **“the Respondents”**) that the Petition is premature, non-justiciable, and offends the doctrine of exhaustion because the Petitioners have bypassed constitutional and statutory accountability mechanisms specifically established to address the grievances they raise. 5. The application is opposed by the Petitioners through a Replying Affidavit sworn by the 4th Petitioner, Bernard Muchiri Muchere, erroneously dated 30th May 2024. 6. The application was canvassed by written submissions. 7. In support of the Application, the Hon. Attorney General (6th Respondent), through Mr. Kaumba, Deputy Chief State-Counsel, filed submissions dated 7th May 2025. The 8th,11th, and 18th Respondents (hereinafter collectively referred to as **“the Auditor-General”**) filed joint submissions dated 11th May 2026 through their Counsel Mukele Moni & Co. Advocates. The National Assembly filed submissions dated 28 August 2025. 8. Opposing the application is the Petitioners’ joint submissions dated 29th May 2025. **The Respondents' Consolidated Submissions in Support** 1. The Respondents’ submissions, though filed separately, converge on three broad propositions: that the Petition is premature for failure to exhaust constitutional mechanisms, that it is not ripe for judicial determination and that entertaining it would offend the doctrine of separation of powers. 2. On the doctrine of exhaustion, the Respondents submitted that the subject matter of the Petition – the legality, management and utilization of public debt – are matters that the Constitution has expressly entrusted to specialized institutions, principally the Auditor-General and Parliament. They argue that the Petitioners ought first to have invoked those mechanisms before approaching the Court. 3. The Respondents rely on, among others, **Article 95(4)(c)** of the Constitution, which vests the National Assembly with oversight over national revenue and expenditure; **Article 229(4)(g)**, which mandates the Auditor-General to audit and report on public debt; **Articles 229(6), (7) and (8)**, which require audit reports to be submitted to Parliament for debate and appropriate action; and **Article 252(1)(a)**, which empowers independent offices to conduct investigations either on their own motion or upon complaints from members of the public. 4. They also cite **section 37 of the Public Audit Act, 2015**, which authorizes the Auditor-General to conduct forensic audits into fraud, corruption and other financial improprieties. 5. The Respondents submitted that the Petitioners neither lodged complaints before the Auditor-General nor invoked any available constitutional accountability mechanisms before instituting the Petition. 6. It was further the Respondent’s joint position that no exception to the exhaustion doctrine has been established since the Petitioners have not demonstrated that the available constitutional mechanisms are unavailable, inadequate or ineffective so as to warrant direct recourse to the Court. 7. They therefore contend that the Petition is premature and an abuse of the court process. 8. In support of the foregoing submissions, the Respondents placed reliance on the judicial pronouncements in the case of **Speaker of the National Assembly v Karume** [1992] KLR 21, **Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others** [2015] eKLR and **Mutanga Tea & Coffee Company Ltd v Shikara Limited & Another** [2015] eKLR. 9. Regarding the contention that the Petition is premature and not ripe for adjudication, the Respondents submitted that Parliament is already seized of the issue of public debt through its oversight processes, including the work of the Public Accounts Committee, which has recommended a forensic audit of Kenya's public debt. 10. They contend that judicial intervention at this stage would interfere with ongoing constitutional processes and lead to duplication of functions. In support, they rely on, among others, the case of **International Centre for Policy and Conflict & 5 Others v Attorney General & 4 Others** [2013] KLR. 11. Finally, on the contention that the Petition offends the doctrine of separation of powers,the Respondents submitted that entertaining the Petition would require the Court to undertake investigative, audit and oversight functions constitutionally assigned to Parliament and independent constitutional offices. 12. Citing **Articles 1, 94, 95, 229 and 252 of the Constitution,** and decided cases such as **Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others** [2013] eKLR and **Commission for the Implementation of the Constitution v Parliament of Kenya & 5 Others** [2013] eKLR, they asserted that the Court ought to exercise judicial restraint and allow the designated constitutional organs to discharge their mandates. 13. For the foregoing reasons, the Respondents consequently urged the Court to allow the motion and strike out the Petition. **Petitioners’ Consolidated submissions in response** 1. The Petitioners, on their part, oppose the motion and urge the Court to dismiss it with costs. They submit that the application is an attempt by the Respondents to evade constitutional accountability for alleged illegal and unconstitutional public borrowing undertaken between the financial years 2014/2015 and 2023/2024. 2. They submit that the Petition raises substantive constitutional questions concerning the legality of public debt, the utilization of Eurobond proceeds, the constitutionality of certain provisions of the Public Finance Management Act and the accountability of public officers. They contend that these issues fall squarely within the jurisdiction of the High Court under **Articles 22, 23, 165(3), 258 and 259 of the Constitution** and cannot be determined by the Auditor-General, Parliament or any other oversight body. 3. The Petitioners further submit that the doctrine of exhaustion is inapplicable in the present case because no alternative mechanism exists that is capable of granting the constitutional reliefs sought, including declarations of constitutional invalidity, declarations of constitutional violations and orders imposing personal liability on public officers. They assert that in any event, the doctrine of exhaustion is not absolute and may be departed from where the alternative remedy is inadequate or ineffective. 4. They rely on, among others, **Krystalline Salt Limited v Kenya Revenue Authority** [2019] eKLR and **Republic v Independent Electoral and Boundaries Commission ex parte National Super Alliance (NASA) Kenya & 6 Others** [2017] eKLR in support of that contention. 5. The Petitioners dispute the Respondents' contention that they ought first to have lodged complaints with the Auditor-General. They submit that **Article 229(4)(g)** of the Constitution already imposes a mandatory obligation upon the Auditor-General to audit and report on public debt annually and that the present Petition is partly founded on the Auditor-General's own reports for the financial years 2014/2015 to 2022/2023. They argue that they cannot be compelled to invoke a process whose alleged failure forms part of the subject matter of the Petition. 6. The Petitioners further contend that **Article 252(1)(a)** of the Constitution and **section 37 of the Public Audit Act, 2015** cannot be invoked to supplant the Auditor-General's express mandate under **Article 229(4)(g)**. In their view, the general investigative powers under **Article 252** cannot cure an alleged failure by the Auditor-General to discharge its constitutional duty to audit public debt. 7. The Petitioners also disputed the Respondents' assertion that the Auditor-General is undertaking a historical audit of public debt from 1963 to date. They submit that neither the Constitution nor any statute authorizes such an exercise and that Article 229 contemplates annual audits rather than a retrospective audit spanning several decades. 8. Finally, the Petitioners submit that the present application is an abuse of the court process, intended to shield the Respondents from judicial scrutiny and therefore ought to be dismissed with costs and direct that the Petition proceeds to hearing. **Analysis and Determination** 1. Having considered the pleadings and submissions, we are of the view that the application raises the question whether this Court's jurisdiction is ousted on account of the doctrines of want of exhaustion, ripeness, and separation of powers. 2. Jurisdiction is the foundation upon which judicial authority rests. Without it, a court cannot lawfully proceed to determine a matter. The Supreme Court in **Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR** was categorical that: **“A court’s jurisdiction flows from either the Constitution or legislation or both. A court of law can only exercise jurisdiction as conferred by the Constitution or other written law.”** 1. It therefore follows that where a challenge is raised regarding jurisdiction, as in the present case, the court must first determine that question at the earliest opportunity. We shall therefore proceed and consider each of the issues raised by the Respondents. 2. **Whether the Petition offends the doctrine of exhaustion** 3. The Respondents’ principal argument is that this Court lacks jurisdiction and that the Petition is barred by the doctrine of exhaustion since issues raised in the Petition (the question of public debt) are matters that fall squarely within the constitutional mandate of the Parliament and the Auditor-General. They contend that the Petitioners ought first to have invoked the constitutional accountability mechanisms established under **Articles 95(4)(c), 229 and 252 of the Constitution** and **section 37 of the Public Audit Act, 2015** before approaching the Court. 4. The Petitioners, on the other hand, contend that this Court has jurisdiction since the dispute is a constitutional challenge to the legality of public borrowing and to the constitutionality of the actions of several State organs and public officers, and that the doctrine of exhaustion is therefore inapplicable. 5. It is settled that the doctrine **of exhaustion of remedies** requires a party to **first utilize all available statutory or administrative dispute-resolution mechanisms before approaching a court of law,** and that Courts should ordinarily decline jurisdiction where **a statute has provided a specific procedure for resolving the dispute, and that procedure has not been exhausted. The Court of Appeal in** [**Speaker of the National Assembly v Karume [1992] KECA 42 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/keca/1992/42/eng%401992-05-29) **stated as follows:** **“In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the** [**Constitution**](http://kenyalaw.org/kl/fileadmin/pdfdownloads/Constitution%20of%20Kenya%20%28Repealed%29.pdf) **or an Act of Parliament, that procedure should be strictly followed. We observe without expressing a concluded view that order 53 of the** [**Civil Procedure Rules**](https://new.kenyalaw.org/akn/ke/act/1924/3) **cannot oust clear constitutional and statutory provisions.”** 1. The same position was reiterated by the Court of Appeal **in** [**Muthinja & another v Henry & 1756 others [2015] KECA 304 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2015/304/eng%402015-10-30), where the Court observed that courts ought to be fora of last resort and should not be approached where adequate dispute resolution mechanisms exist. 2. The exhaustion doctrine is, however, not an absolute bar to jurisdiction. In [Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] KEHC 10266 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/10266/eng%402020-11-06), the High Court held that the exhaustion doctrine may not apply where the alternative remedy is ineffective, the statutory forum lacks jurisdiction to determine the dispute, or where the dispute raises substantial constitutional issues. The Court stated that: **“61. In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms, and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.”** 1. Similarly, the Supreme Court in [**Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) [2023] KESC 113 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/113/eng%402023-12-28)**,** endorsing the above position, held that the exhaustion doctrine must be applied **pragmatically and contextually,** rather than mechanically, and that courts must evaluate the adequacy of the alternative remedy in the specific circumstances of the case. The Court stated that: **“105. We agree with the above reasoning and find that the availability of an alternative remedy does not necessarily bar an individual from seeking constitutional relief. This is because the act of seeking constitutional relief is contingent upon the adequacy of an existing alternative means of redress. If the alternative remedy is deemed inadequate in addressing the issue at hand, then the court is not restrained from providing constitutional relief. But there is also a need to emphasize the need for the court to scrutinize the purpose for which a party is seeking relief, in determining whether the granting of such constitutional reliefs is appropriate in the given circumstances…”** 1. In the present case, we have carefully considered the application and annexures thereto. We entertain no doubt that the process – forensic audit of public debt – is currently underway. Indeed, as demonstrated in the letter dated 16th September 2024 from the 8th Respondent to the Permanent Secretary-National Treasury, the minutes of the meeting of 25th September 2024, the Public Accounts Committee (PAC) of the Parliament, and the Executive Office of the President requested a forensic audit, and the Office of the Auditor General has commenced the process. 2. From the terms of reference, we note that the audit covers an extensive range of matters, including: debt acquisition; debt utilization; debt reconciliation; compliance with legal obligations; value-for-money assessments; debt management systems; and guarantees and contingent liabilities. 3. We accept that the matters raised in the Petition substantially overlap with the terms of reference of that audit. However, as established in the foregoing paragraphs of this judgment, the mere existence of an alternative process does not automatically defeat the jurisdiction of the Court. The real question should be whether the alternative mechanism is capable of granting the reliefs sought. 4. From our perusal of the pleadings, we are persuaded that the dispute raised by the Petitioners transcends an audit of public debt; it challenges the legality of public borrowing, the constitutionality of certain provisions of the Public Finance Management Act, alleged violations of constitutional principles governing public finance, and the personal liability of public officers. 5. The Petition also seeks constitutional declarations and other reliefs that neither the Auditor-General nor Parliament is constitutionally empowered to grant. These are functions expressly vested in this Court pursuant to **Articles 23(3), 165(3)(b) and (d),** and **258** of the Constitution. 6. Further, it is plain from the record that one of the Petitioners' complaints is that the Auditor-General failed to discharge its constitutional mandate under Article 229(4)(g). It would therefore be conceptually difficult to require the Petitioners to exhaust a process whose alleged constitutional failure forms part of the dispute before the Court. 7. Accordingly, we find that the doctrine of exhaustion does not bar the present proceedings. 8. **Whether the Petition is premature or unripe** 9. The Respondents argued that the Petition is premature and therefore unripe for determination since Parliament has not yet received the forensic audit report nor undertaken its constitutional obligation under Article 229(8). 10. It is settled that the purpose of the doctrine of ripeness is to prevent courts from deciding abstract, hypothetical, or premature disputes. In [**National Assembly of Kenya v Ole Kina & another [2022] KECA 548 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2022/548/eng%402022-06-10)**,** the Court of Appeal, citing the Supreme Court (Koome CJ) in[**Attorney-General & 2 others v Ndii & 79 others; Prof Rosalind Dixon & 7 others (Amici Curiae)**](https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/19) **[2022] KESC 8** **(KLR),** stated: **“…. the doctrine of ripeness discouraged a court from deciding an issue too early, and required a litigant to wait until an action was taken against which a judicial decision could be grounded and a court was able to issue a concrete relief. Further, that approach shielded a court from dealing with hypothetical issues that had not crystallized….”** 1. The present Petition, however, concerns alleged constitutional violations that have already occurred over a ten-year period spanning the 2014/2015 to 2023/2024 financial years. In particular, the Petition relates to public debt allegedly already incurred, legislation already enacted, Eurobond transactions allegedly already undertaken, and constitutional obligations allegedly already breached. 2. The allegations are therefore neither speculative nor hypothetical. Accordingly, we reject the contention that the Petition is premature. 3. **Whether entertaining the Petition offends the doctrine of separation of powers** 4. Finally, on whether the Petition offends the doctrine of separation of powers, the Respondents (particularly the National Assembly) submitted that the present Petition invites the Court to usurp the functions of Parliament and independent constitutional offices. Citing, among others, the Supreme Court decision in **Justus Kariuki Mate & another vs Martin Nyaga Wambora & another (2017) eKLR,** they urged the Court to exercise restraint in deference to Parliament and the Auditor-General. 5. With respect, we decline that invitation from the Respondents. 6. While we accept that each constitutional organ must be afforded sufficient space within which to discharge its constitutional mandate, it is, however, our considered view that the present Petition does not ask us to undertake an audit or exercise parliamentary oversight. 7. To the contrary, the Petition seeks a determination as to whether constitutional provisions have been violated and whether certain statutory provisions are unconstitutional. These are typically judicial functions falling within the remit of this Court under **Article 165(3)** of the Constitution. 8. To decline jurisdiction solely because another constitutional process is ongoing would, in effect, amount to this Court's abdication of a mandate expressly conferred by the Constitution. That is not the purpose of the separation-of-powers doctrine. **Disposition** 1. For the foregoing reasons, we find that the Notice of Motion dated 5th May 2025 is without merit and is hereby dismissed with no orders as to costs. 2. The Petition shall proceed to hearing and determination on its merits. 3. It is so ordered. **Dated, Signed and Delivered virtually at Nairobi this 25th Day of June 2026** **F. GIKONYO M.** **JUDGE (PRESIDING)** **R. E. ABURILI** **JUDGE** **MOSES ADO** **JUDGE**