The fight over Kenya's Sh9.6 trillion public debt has taken a new turn after the government moved to stop a constitutional case challenging the borrowing, setting up another court battle with activists who want the matter heard without waiting for an ongoing forensic audit to end.
Attorney General Dorcas Oduor and Treasury CS John Mbadi have asked the High Court to suspend the petition until the Auditor-General completes a forensic audit of public debt accumulated between 2014 and 2024.
But Busia Senator Okiya Omtatah, alongside Bernard Muchere and Naomi Misati, is opposing the application, saying the audit should not stand in the way of the constitutional case.
The petition asks the court to determine whether the public debt was incurred lawfully and whether former President Uhuru Kenyatta and a number of current and former government officials should be held personally responsible for decisions made during the borrowing process.
Those named in the case include former Treasury CSs Henry Rotich, Ukur Yatani and Njuguna Ndung'u, former Treasury PS Kamau Thugge, now the Central Bank Governor, former Attorney-General Githu Muigai, former and current Controllers of Budget Agnes Odhiambo and Margaret Nyakang'o, former Auditor-General Edward Ouko, Auditor-General Nancy Gathungu and former Ethics and Anti-Corruption Commission chief Halakhe Waqo.
According to the petition, the officials unlawfully directed, approved or authorised the borrowing and spending of public funds.
In fresh filings before the High Court, Omtatah argues that the Attorney General's request to suspend the proceedings has no legal basis because it asks the same court to stop its own case while an intended appeal has not yet reached the Court of Appeal.
He says the Constitution does not allow the High Court to supervise another superior court and maintains that any request meant to protect an intended appeal should be made before the Court of Appeal.
“The Attorney-General’s application is an impermissible attempt to have this court exercise supervisory jurisdiction over the Court of Appeal,” he says in the petition.
The latest disagreement comes after a three-judge bench ruled on June 25, 2026 that the constitutional petition should continue despite the ongoing forensic audit being carried out by Gathungu.
The judges also rejected applications by current and former Auditors-General and Controllers of Budget who had sought to be removed from the proceedings.
Following that decision, the Attorney General lodged a Notice of Appeal and later applied for the suspension of hearings scheduled for October 24 and 25.
Together with John Mbadi, the Attorney General says the government disagrees with the ruling that declined to stop the constitutional petition in favour of allowing the forensic audit to take its course.
Omtatah, however, says there is no appeal before the Court of Appeal capable of supporting an order to halt the proceedings because only a Notice of Appeal has been filed.
“The filing of a Notice of Appeal and a request for certified proceedings does not constitute exceptional circumstances warranting a stay of proceedings,” he says. “To hold otherwise would allow any dissatisfied party to paralyse proceedings in the High Court.”
He further argues that the constitutional issues before the court are different from the Auditor-General's mandate and that the audit cannot determine the legal and constitutional questions raised in the petition.
According to Omtatah, both processes can continue at the same time without affecting each other, adding that stopping the case would only delay the resolution of matters touching on accountability in the management of public debt and public finances.
He has asked the court to dismiss the Attorney General's application and allow the constitutional petition to proceed as planned.