Okiya Omtatah Okoiti & 2 others v Uhuru Muigai Kenyatta & 7 others

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) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/8785/eng@2025-06-19 2

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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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/8785/eng@2025-06-19 3

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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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/8785/eng@2025-06-19 4

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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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/8785/eng@2025-06-19 5

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………………………………………………………………………… BAHATI MWAMUYE. JUDGE. In the presence of: Mr. Okiya Omtatah Okoiti - 1st Petitioner Mr. Bernard Muchere - 4th Petitioner Dr. Magare Gikunyi - 5th Petitioner Mr. Kelvin Naikuni - 6th Petitioner Mr. Nganyi - for the 9th Respondent Mr. Jaoko - for the 9th Respondent Mr Paul Gichana and Mr. Malidzo Nyawa - for the 3rd and 7th Interested Parties Ms. Mwanzia for the 6th Interested Party Ms. Weru holding brief Mr. Munyu for the 19th Interested Party Ms Neema – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/8785/eng@2025-06-19 6

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