Auditor-General asks Court of Appeal to halt Omtatah's Sh7 trillion debt case

Auditor-General Nancy Gathungu has moved to the Court of Appeal seeking to halt proceedings in Okiya Omtatah’s Sh7 trillion public debt case.

Gathungu and former Auditor-General Edward Ouko have moved to the appellate court seeking orders staying ongoing proceedings in a constitutional petition filed by Busia Senator Okiya Omtatah and eight others in the High Court.

The applicants now want the appellate court to suspend further proceedings in High Court Petition No. E216 of 2026 arguing that allowing the case to proceed could interfere with the Auditor-General’s forensic audit.

The duo's application filed under Rule 5(2)(b) of the Court of Appeal Rule seeks to halt the High Court case pending the hearing and determination of their appeal against a ruling delivered on June 25, 2026.

The ruling by Justices Francis Gikonyo, Moses Ado and Roselyne Aburili rejected their bid to have them struck out of the petition.

In written submissions filed before the appellate court, Omtatah, who is listed as the first respondent, has opposed the application arguing that the applicants have failed to satisfy the legal requirements for the Court of Appeal to grant a stay.

Omtatah argues that the applicants must establish two conditions before proceedings can be stayed, that the intended appeal is arguable and that unless a stay is granted, the appeal would be rendered nugatory.

“The two requirements are cumulative. Establishing an arguable appeal does not, of itself, entitle an applicant to a stay,” Omtatah says.

He insists that establishing an arguable appeal does not, of itself, entitle an applicant to a stay.

He argues that the applicants have failed to demonstrate any prejudice that would arise if the High Court proceedings continue as the appeal is heard.

“The Applicants have failed to demonstrate the essential factual and legal nexus between the continuation of Petition E216 of 2026 and the alleged risk that their intended appeal will be rendered nugatory,” the senator state.

Omtatah says the continuation of the constitutional petition is reversible and would not take away the applicants’ right to pursue their appeal.

“If the intended appeal ultimately succeeds, this Court will retain the capacity to give effective relief in consequence thereof, including by setting aside, varying or otherwise addressing any orders or consequential steps arising from the proceedings that are inconsistent with its determination,” he says.

The applicants’ intended appeal also challenges the High Court’s jurisdiction to hear the petition, particularly on the ground of exhaustion.

Omtatah, however, argues that an appeal questioning jurisdiction does not automatically justify stopping the entire constitutional petition.

“The Applicants’ intended appeal is specifically attacking the High Court’s jurisdiction to hear E216 on the basis of exhaustion,” he says.

“Even assuming this Court ultimately agrees with them on exhaustion, the proper appellate remedy need not be a pre-emptive stay of the entire constitutional petition.”

He further accuses the Auditor General of conflating the question of whether the High Court properly assumed jurisdiction with whether continuation of the proceedings would make the appeal nugatory.

The underlying petition was filed by Omtatah and eight others and challenges borrowing of about Sh6.95 trillion accumulated between the 2014/15 and 2023/24 financial years.

The petition raises questions over various loans, including Eurobond borrowing, and names dozens of respondents drawn from the administrations of former President Uhuru Kenyatta and President William Ruto.

Among those named are former and current Treasury officials, the Central Bank governor and other State officials involved in the management and oversight of public finances.

The petitioners are challenging the legality and constitutionality of the borrowing, placing the Auditor-General’s role in auditing and reporting on public debt at the centre of the dispute.

Attorney General Dorcas Oduor had previously sought to have the petition struck out, arguing that the issues raised were already subject to a forensic audit by the Auditor General and parliamentary oversight mechanisms.

However, a three-judge bench comprising Justices Gikonyo,Ado and  Aburili rejected the AG’s attempt to terminate the case in June and directed that the petition proceed to hearing on its merits.

The High Court had also  rejected attempts by Gathungu, Ouko and current and former Controllers of Budget to be removed from the case, finding that they were necessary parties to the proceedings.

The High Court, however, struck out the International Monetary Fund from the petition after the court upheld its immunity.

Omtatah argues that stopping the proceedings would delay determination of alleged constitutional violations concerning public borrowing and management of public finances.

“If granted, the Applicants’ proposed stay will actually produce the very constitutional harm that E216 asks the High Court to prevent or remedy,” he says.

The Court of Appeal had not, by Friday, fixed a hearing date for the stay application