[2025] KEHC 8785 (KLR)

Okoiti & 8 others v Kenyatta & 21 others; Senate of Kenya & 10 others (Interested Parties) (Petition E216 of 2025) [2025] KEHC 8785 (KLR) (Constitutional and Human Rights) (19 June 2025) (Ruling)

Neutral citation: [2025] KEHC 8785 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition E216 of 2025

AB Mwamuye, J

June 19, 2025

IN THE MATTER OF: THE PREAMBLE AND ARTICLES 1, 2, 3, 4(2), 10, 19, 20, 21, 22, 23, 24, 27, 28, 33(1)(a), 35, 40, 43, 46(1), 47, 50(1), 73, 75, 201, 206, 211(1), 214, 220, 221, 222, 223, 226(5), 228(4 & 5), 229(4)(g) & 6), 232, 258, AND 259(1) OF THE CONSTITUTION OF KENYA IN THE MATTER OF: THE VIOLATION OF ARTICLES 1, 2, 4(2), 3(1), 10, 35, 24, 27, 40, 46(1)(A), 47, 73, 75, 143(4), 201, 206, 211(1), 214, 220(1), 221, 222, 223, 228(4 & 5), 229(4, 6, 7, & 8), 232, 249(1) & (2), 252(1a), AND 259 OF THE CONSTITUTION OF KENYA AS READ WITH SECTIONS 15(2)(c), AND 50(3) OF THE PUBLIC FINANCE MANAGEMENT ACT IN THE BORROWING AND USE OF THE PROCEEDS OF THE EUROBOND IN THE FINANCIAL YEARS 2014/2015 AND 2023/2024. IN THE MATTER OF: THE CONSTITUTIONAL VALIDITY OF THE PUBLIC FINANCE MANAGEMENT (AMENDMENT) ACT 2014, WHICH, CONTRARY TO ARTICLE 206(1) OF THE CONSTITUTION, INTRODUCED EXTRA EXEMPTIONS FOR NOT PAYING LOAN REVENUES RAISED BY THE NATIONAL GOVERNMENT INTO THE CONSOLIDATED FUND, AND Page 1 of 9 WHICH THE NATIONAL ASSEMBLY ENACTED UNILATERALLY WITHOUT INVOLVING THE SENATE. IN THE MATTER OF: THE CONSTITUTIONAL VALIDITY OF SECTIONS 49(1), 50(6), (7)(b, c, & d), (8) & (10)(b), 50(2, 2A, 2B, 2C & 2D), 53, AND 53A OF THE PUBLIC FINANCE MANAGEMENT ACT, 2012; AND OF SECTION 6 OF THE FINANCE MANAGEMENT (AMENDMENT) ACT, 2023; WHICH AMENDED SECTION 50(2) OF THE PUBLIC FINANCE MANAGEMENT ACT 2012. IN THE MATTER OF: THE ALLEGED CONTRAVENTION OF THE PUBLIC FINANCE MANAGEMENT ACT 2012; THE FAIR ADMINISTRATIVE ACTION ACT 2015; THE LEADERSHIP AND INTEGRITY ACT 2012; AND THE PUBLIC OFFICER ETHICS ACT 2003. IN THE MATTER OF: THE ALLEGED GROSS AND CONTEMPTUOUS VIOLATION OF SECTIONS 17, 49, AND 50 OF THE PUBLIC FINANCE MANAGEMENT ACT 2012; SECTIONS 5 AND 6 OF THE FAIR ADMINISTRATIVE ACTION ACT 2015; SECTIONS 3, 4, 6, 7, 9, 10, 11, 12, 15, 21(4) 22, 24, 29, AND 30 AS READ WITH 52(1) OF THE LEADERSHIP AND INTEGRITY ACT 2012; AND SECTIONS 9(1)(A), 10, 11, 15, AND 19 OF THE PUBLIC OFFICER ETHICS ACT. Page 2 of 9 IN THE MATTER OF: THE CONSTITUTIONAL AND LEGAL VALIDITY OF THE DEBTS AMOUNTING TO KSHS. 6,950,163,132,328 INCURRED BY THE RESPONDENTS IN THE TEN-YEAR PERIOD SPANNING THE FINANCIAL YEARS 2014/2015 TO 2023/2024, INCLUDING THE EUROBONDS, WHICH THE RESPONDENTS UNCONSTITUTIONALLY AND UNLAWFULLY BORROWED YET THEY WERE NOT IN THE NATIONAL BUDGETS (APPROPRIATION ACTS) APPROVED BY PARLIAMENT AND SIGNED INTO LAW BY THE PRESIDENT, AND THEY WERE NOT TIED TO ANY DEVELOPMENT PROJECTS. IN THE MATTER OF: THE CONSTITUTIONAL VALIDITY OF THE DEBT CEILING SET BY PARLIAMENT BASED ON THE GROSS DOMESTIC PRODUCT (GDP) AND NOT ON THE REVENUES RAISED BY THE GOVERNMENT. IN THE MATTER OF: THE VALIDITY AND ENFORCEABILITY OF SOVEREIGN LOANS AND GUARANTEES WHICH LACK A PROPER AUTHORIZATION AND ARE TAINTED WITH CORRUPTION. Page 1 of 6 IN THE MATTER OF: THE CONSTITUTIONAL AND LEGAL VALIDITY OF BURDENING CURRENT AND FUTURE GENERATIONS WITH THE REPAYMENT OF THE STOLEN BORROWED PUBLIC MONEY. IN THE MATTER OF: THE PRINCIPLES OF UNJUST ENRICHMENT AND THE PERSONAL LIABILITY OF PUBLIC OFFICERS RESPONSIBLE FOR THE MISSING/STOLEN EUROBOND PROCEEDS AND THE NEED TO RECLAIM THE STOLEN MONEY. IN THE MATTER OF: SUING THE PRESIDENT OF KENYA UNDER ARTICLE 143(4) OF THE CONSTITUTION. IN THE MATTER OF: THE DOCTRINES OF ODIOUS DEBT, ILLEGALITY, OSTENSIBLE AUTHORITY, PUBLIC POLICY, RESTITUTIONARY REMEDIES, AND LEGITIMATE EXPECTATION

Between

Okiya Omtatah Okoiti

1st Petitioner

Nyakina Wyclife Gisebe

2nd Petitioner

Eluid Karanja Matindi

3rd Petitioner

Bernard Muchiri Muchere

4th Petitioner

Magare Gikenyi Benjamin

5th Petitioner

Kelvin Saitoti Naikuni

6th Petitioner

Olive Naisinkei Ambrose

7th Petitioner

Dancan Otieno Onyango

8th Petitioner

Naomi Nyakerario Misati

9th Petitioner

and

Uhuru Muigai Kenyatta

1st Respondent

National Executive

2nd Respondent

Cabinet Secretary for the National Treasury

3rd Respondent

Principal Secretary for the National Treasury

4th Respondent

Director General Public Debt Management Office

5th Respondent

Attorney General

6th Respondent

Controller of Budget

7th Respondent

Auditor General

8th Respondent

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

Controller of Budget Margaret Nyakang’o

17th Respondent

Auditor General Nancy Gathungu

18th Respondent

Governor, The Central Bank of Kenya

19th Respondent

Ethics and Anti-Corruption Commission

20th Respondent

Former EACC CEO/Secretary Halakhe D. Wago

21st Respondent

International Monetary Fund

22nd Respondent

and

Senate of Kenya

Interested Party

Law Society of Kenya

Interested Party

Katiba Institute

Interested Party

Kenya Human Rights Commission

Interested Party

Kenya National Commission on Human Rights

Interested Party

Tranparency International

Interested Party

Institute for Social Accountability (TISA)

Interested Party

Commission of Jurists (ICJ-KENYA)

Interested Party

Kenya Debt Abolition Network (KDAN)

Interested Party

National Taxpayers Association (NTA)

Interested Party

Committee for the Abolition Illegitimate Debts (CADTM)

Interested Party

Ruling

1. This Ruling addresses the Petitioners’ Application dated 24th April 2025 seeking certification under Article 165(4) of the Constitution Petition No. E216 of 2025 raises substantial questions of law, and for a consequential referral to the Hon. Chief Justice for the empanelment of a bench of not less than three judges.

2. Certification is unanimously supported by the other parties. It has also been pointed out to this Court that there is another pending matter on the same broad subject matter as this Petition, which other matter is HCCHRPET E248/2023 which is before a three-judge bench comprising of Hon. Lady Justice R.E. Aburili, Hon. Mr. Justice J. Chigiti (SC), and Hon. Mr. Justice L.N. Mugambi. I note that that matter is indeed on the same broad subject matter, and there is significant overlap between the two petitions; with HCCHRPET E248/2023 coming up for highlighting of written submissions on 20/06/2025, which is tomorrow.

3. Having considered the matter in light of the applicable caselaw, and having compared this Petition to that in HCCHRPET E248/2023, I am satisfied that the Petition herein raises substantial questions of law touching on various aspect of Article 165(3) of the Constitution. Consequently, I certify this Petition as raising substantial questions of law pursuant to Article 165(4) of the Constitution and I hereby forward this file to the Hon. The Chief Justice for empanelment of a bench of no less than three Judges of the High Court to hear and determine this Petition and any interlocutory applications therein.

4. Administrative actions required to be taken forthwith.

DATED, SIGNED, AND DELIVERED ON THIS 19TH DAY OF JUNE 2025. …………………………………………………………………………BAHATI MWAMUYE.JUDGE.In the presence of:Mr. Okiya Omtatah Okoiti - 1st PetitionerMr. Bernard Muchere - 4th PetitionerDr. Magare Gikunyi - 5th PetitionerMr. Kelvin Naikuni - 6th PetitionerMr. Nganyi - for the 9th RespondentMr. Jaoko - for the 9th RespondentMr Paul Gichana and Mr. Malidzo Nyawa - for the 3rd and 7th Interested PartiesMs. Mwanzia for the 6th Interested PartyMs. Weru holding brief Mr. Munyu for the 19th Interested PartyMs Neema – Court Assistant