REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS
(CONSTITUTION & HUMAN RIGHTS DIVISION)
PETITION NO. 531 OF 2015

PRESS AND PUBLIC SUMMARY

(The following summary is provided to assist the public to follow and the media to properly report this case.)

A. Introduction

1. Odious debt is a legal doctrine that refers to loans incurred by government

officials outside the law (i.e., without the consent of the people, which is
codified in the laws of the land) and/or for their own benefit. The doctrine
states that a country should not be obligated to repay debt incurred by a
regime that did not use the funds to benefit the population, but instead used the
funds for illegitimate purposes, including corruption, repression, or personal
enrichment.

2. In Kenya, the acquisition and utilisation of public debt is prescriptively

governed by the Constitution and the Public Finance Management Act, 2012
(the PFMA). Hence, it is easy to show debts that were incurred contrary to the
law, that lenders knew or should have known the loans were illegitimate,
and/or that the loans were not used for public benefit.

B. The Petition

3. The petition concerns Kenya’s huge odious debt amounting to

Kshs13,114,602,305,902 (Kenya shillings thirteen trillion, one hundred and
fourteen billion, six hundred and two million, three hundred and five thousand,
and nine hundred and two).

4. The odious debt includes the Eurobond loans worth Kshs919,450,000,000 (or
USD7,100,000,000 at the exchange rate of 1USD = Kshs 129.5), which were
1|Pa ge of 2 2
 borrowed in the financial years 2014/2015, 2017/2018, 2018/2091, and
2020/2021.

5. It also includes a further Eurobond loan of Kshs208,324,847,510 (equivalent

then to USD1,458,740,000), which was borrowed in February 2024, and
ostensibly utilised offshore to repay the initial one.

6. This loan was fraudulent because:

a. According to Article 214(1) of the Constitution, the repayment of

debt is a direct charge on the Consolidated Fund; and,

b. Since borrowings must be tied to development projects, and debt

repayment is a recurrent expenditure, the State cannot take a loan
to repay a debt.

7. It is the petitioners’ case that the debts were incurred unconstitutionally and
unlawfully as they were not authorised in the national budgets approved by
Parliament and signed into law by the President (i.e., Appropriation Acts); they
were not tied to any development projects; and they were not utilised for any
known public purpose for the people’s benefit.

C. The purpose of government borrowing in law

8. Under the law, the government is allowed to borrow for only two purposes:
financing development expenditure, and for short-term management of cash
flow.

9. Borrowings are validly controlled under Article 220(1) of the Constitution and
Sections 15(2)(c), 15(3) & 50(3) of the Public Finance Management Act
(PFMA). Further and, in particular:
(a) Article 220(1) of the Constitution provides that:
(1) Budgets of the national and county governments shall contain—

2|Pa ge of 2 2
 (a) Estimates of revenue and expenditure, differentiating between
recurrent and development expenditure;
(b) Proposals for financing any anticipated deficit for the period to which
they apply; and,
(c) Proposals regarding borrowing and other forms of public liability that will
increase public debt during the following year.

(b) Section 15(2)(c) & (d) of the PFMA provides that:

(c) “Over the medium term, the national government’s borrowings shall
be used only for financing development expenditure and not for
recurrent expenditure.”
(d) “Public debt and obligations shall be maintained at a sustainable
level as approved by Parliament for the national government and
the county assembly for county government.”

(c) Under Section 2(1) of the PFMA, development expenditure “means the
expenditure for the creation or renewal of assets”.

(d) Section 15(3) of PFMA provides for the purposes of subsection (2)(c); short-
term borrowing shall be restricted to the management of cash flows...

(e) Section 2(1) of the PFMA provides for “Short-term borrowing”. This means
“borrowing by a government by way of Treasury Bills, bank-overdrafts or
other instruments to cover temporary cash shortfalls and is repayable within
twelve months.”

(f) Section 50(3) of PFMA provides that “the national government may borrow
money only for the budget as approved by Parliament and the allocations
for loans approved by Parliament”.

D. Kenya’s Official Total Outstanding Public Debt

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10. According to the Central Bank of Kenya’s Weekly Bulletin dated 27th
December 2024, the total outstanding public debt was Kshs10,790,080,000,000,
comprising Kshs5.6 trillion domestic and Kshs5.188 trillion external debts.

11. Kenya’s public debt, which was borrowed lawfully in the last ten (10) financial
years (2014/2015 to 2024/2025) aggregated to Kshs5,255,796,104,913. Of
which, Kshs2,370,255,820,000 was carried forward from the 2013/2014 financial
year. The other is Kshs2,791,543,336,707 only, which the National Assembly,
through the Appropriation Acts for the respective years, cumulatively
authorised to be borrowed in the financial years 2014/2015 to 2024/2025.

12. From Table 1 below, repayment of public debt (including interest) as recorded
in the statement of actual revenue and net exchequer issues aggregated to
Kshs8,918,021,659,782 in the financial years 2014/2015 to 2025/2025 (up to 30th
November 2024). If the repayments are applied to the amount borrowed
aggregating to Kshs5,255,796,104,913, it means that, without factoring in
interest and other costs of the loans, Kenyan taxpayers have paid
Kshs3,662,225,554,869 more than the loans borrowed.

TABLE 1
Financial Exchequer Issues - Repayment of Public
Year Debts - Direct Charge in Consolidated
Fund
2014/2015 399,310,622,509
2015/2016 397,035,494,249
2016/2017 466,514,040,169
2017/2018 649,396,727,245
2018/2019 870,615,957,746
2019/2020 768,847,893,016
2020/2021 904,703,671,211
2021/2022 1,169,165,030,917
2022/2023 1,161,579,454,767
2023/2024 1,596,641,830,604
*2024/2025 534,210,937,349
Total 8,918,021,659,782
*Up to 30th November 2024
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13. If we factor in a high interest rate of Kshs. 1,337,703,248,967 (being 15% of
Kshs8,918,021,659,782), it follows that taxpayers have repaid all the public
debts with a surplus of Kshs2,324,522,305,902 (Kshs3,662,225,554,869 -
Kshs1,337,703,248,967).

14. Based on the foregoing computations, the petitioners confidently state that
Kenya’s odious debt is Kshs13,114,602,305,902 (being the entire
Kshs10,790,080,000,000 from the Central Bank plus the overpayment of
Kshs2,324,522,305,902.)

15. But of the Kshs13,114,602,305,902 odious debt, only Kshs6,950,163,132,328

(which includes a fraudulent internal debt redemption roll-over of Kshs
2,503,596,813,045 (shown in Table 6)) is traceable from the National Treasury’s
financial records. The Kshs6,164,439,173,574 difference between the Central
Bank’s records and those of the National Treasury points to the fact that the
former could be incurring debt, which is not recorded by the latter.

16. Further, the petitioners conclusively state that the amount borrowed over the
last ten financial years (2014/2015 to 2024/2025), aggregated to
Kshs17,337,845,839,782 (being, Kshs10,790,080,000,000 + (Kshs8,918,021,659,782
- Kshs2,370,255,820,000)).

17. From Table 2 below, over the 10-year period, the gross development
expenditure was Kshs7,505,400,275,266, financed by Kshs4,713,856,938,559 in
tax revenue, andKshs 2,791,543,336,707 in external loans.

TABLE 2
Gross Expenditure Estimates and Sources of Finance
Financial Gross Amount Amount financed
Year Estimates financed by by Debt
taxes
2014/2015 494,892,120,733.00 358,507,118,798 136,385,001,935
2015/2016 721,288,541,960.00 440,418,948,724 280,869,593,236
2016/2017 820,161,449,551.00 471,905,309,201 348,256,140,350
2017/2018 642,897,327,706.00 438,630,011,332 204,267,316,374
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 2018/2019 677,225,634,213.00 430,408,353,462 246,817,280,751
2019/2020 704,213,809,308.00 443,517,981,026 260,695,828,282
2020/2021 633,308,563,243.00 382,969,235,979 250,339,327,264
2021/2022 668,378,861,891.00 394,847,691,251 273,531,170,640
2022/2023 711,405,784,936.00 418,648,442,772 292,757,342,164
2023/2024 807,643,508,015.00 536,009,044,326 271,634,463,689
2024/2025 623,984,673,710.00 397,994,801,688 225,989,872,022
Total 7,505,400,275,266.00 4,713,856,938,559 2,791,543,336,707

18. Given that Section 15(2)(c) of the PFMA provides that “over the medium term,
the national government’s borrowings shall be used only for the purpose of
financing development expenditure and not for recurrent expenditure”, then
Kshs22,051,702,778,341 (being, Kshs 17,337,845,839,782 (in loans) + Kshs
4,713,856,938,559 (in tax revenue)) has purportedly been invested in
development projects. That translates to investments in development projects
worth approximately Kshs2.2 trillion in every financial year.

19. On the contrary, a review of the Appropriation Acts for the period 2014/2015 -
2024/2025) reveals development expenditure estimates (projects) of Kshs0.75
trillion only in a financial year. Hence, approximately Kshs1.45 trillion, out of
Kshs2.2 trillion purportedly spent on development expenditure in every
financial year between 2014/2015 to 2024/2025, is fictitious.

20. The Kshs22 trillion could have been used to develop 35 projects of the size of
the Standard Gauge Railway (SGR), which reportedly cost Kshs500 billion
(although even that is said to have been inflated).

21. Further, from the annual reports of the Controller of Budget, the average
absorption of the development expenditure per financial year over the said
period was approximately Kshs0.506 trillion. Therefore, based on those reports,
which give the actual expenditure, Kshs1.694 trillion per financial year,
aggregating to Kshs. 16,94 trillion, in the ten financial years 2014/2025 to
2024/2025, cannot be accounted for.

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 E. Analysis of the Public Debt Comparing the National Treasury’s Official
Documents to the Appropriation Acts

22. Table 3 below gives an analysis of Kenya’s actual borrowings as stated in the
National Treasury’s monthly Statement of Actual Revenue and Net Exchequer
Issues (published in the Kenya Gazette), against borrowings authorised by the
National Assembly in the annual Appropriation Acts for the period spanning
the financial years 2014/2015 to 2024/2025 (up to November 2024).
TABLE 3
Financial Actual totals of both authorised Borrowings Authorised Actual Amount
Year and unauthorised Domestic by Appropriation Acts Borrowed Unlawfully
Debt and External Loans
borrowed over the years.
A B A-B
2014/2015 407,165,356,983 136,385,001,935 270,780,355,048
2015/2016 683,479,898,205 280,869,593,236 402,610,304,969
2016/2017 645,856,974,239 348,256,140,350 297,600,833,889
2017/2018 751,731,497,696 204,267,316,374 547,464,181,322
2018/2019 975,837,147,991 246,817,280,751 729,019,867,240
2019/2020 858,552,450,338 260,695,828,282 597,856,622,056
2020/2021 1,167,727,891,453 250,339,327,264 917,388,564,189
2021/2022 1,116,650,720,849 273,531,170,640 843,119,550,209
2022/2023 1,184,613,281,653 292,757,342,164 891,855,939,489
2023/2024 1,500,731,102,136 313,806,128,015 1,186,924,974,121
*2024/2025 449,360,147,492 277,815,155,902 171,544,991,590
Total 9,741,706,469,035 2,791,543,336,707 6,950,163,132,328
*Up to 30th November 2024

F. An Illustration of odious debt generated in the FY 2014/2015

23. From Table 3 above, Kshs270,780,355,048, which was borrowed in the FY

2014/2015, is an odious debt. It disappeared into thin air. President Uhuru
Kenyatta borrowed Kshs407,165,356,983 against the Kshs136,385,001,935,
which was budgeted to be borrowed by all the ministries/state departments
and was authorised by Parliament through the Appropriation Act, 2014.

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24. The authorised loans per lender to individual Ministry/State Department are
listed in Table 4 below (which was extracted from the 2014/2015 Budget Book -
Development Expenditure For 2014/2015 Financial Year - where it is titled, Table
III – Details of External Funding (Listed by donors):
TABLE 4
Table III – Details of External Funding (Listed by Donors)
Loan LENDERS Loan Total Loan
Number Amount
AIA Revenue
007000 Government of
Belgium
MOE&NR 800,000,000 -
MOE&P 2,736,145,000 -
SD for W&RA 300,000,000 - 3,836,145,000
011000 Government of
Italy 180,000,000 180,000,000
SD for W&RA
012010 Government of -
Spain MOE&P 4,356,263,100 4,356,263,100
014000 Government of
Germany (KFW
GERMANY)
678,440,000 70,000,000
SD for
Infrastructure 1,418,440,000

SDOW&RA 670,000,000 -
016000 Government of
France (AFD -
FRANCE) 100,000,000
National Treasury
MOLH&UD 17,000,000 1,000,000,000
MOE&P 4,265,740,000 1,000,000,000
SD for 200,000,000 1,500,000,000
Infrastructure 10,922,740,000
SD for E&NR 840,000,000 -
SD for W&RA 2,000,000,000 -
018000 Kuwait Fund for -
Arab
Development 50,000,000
MoH
SD for education 10,000,000 -
SD for 50,000,000 - 510,000,000
Infrastructure
SD for Agriculture 400,000,000 -
019000 Saudi Fund for -
Arab
Development 50,000,000
8|Pa ge of 2 2
 (SAUDI ARABIA)
MOH 200,000,000
MOE&P 100,000,000 -
SD for 50,000,000
Infrastructure
020000 Abu Dhabi Fund -
MOE&P 100,000,000
SD for 50,000,000 - 150,000,000
Infrastructure
0210000 Government of
Japan 1.681,000,000 180,000,000
MOE&P
SD for 6,525,000,000 - 13,386,000,000
Infrastructure
SD for Transport 5,000,000,000 -
023000 Government of
India
MOE&P 6,209,000,000 - 6,209,000,000
024000 Government of
South Korea
MOLSS&S 100,000,000 - 100,000,000
025000 Government of
China
MOIC&T 2,500,000,000 -
MOE&P 12,035,920,000 -
SD for Planning 422,940,000 - 20,558,860,000
SD for 5,600,000,000 -
Infrastructure
501000 International
Development
Association 250,000,000 250,000,000
(World Bank/IMF)
National Treasury
MOLH&UD 531,266,100 3,390,944,125
MOIC&T - 2,368,634,460
MOLSS&S - 1,182,153,550
MOE&P 6,360,600,033 2,591,802,000
Judiciary - 2,831,895,000
SD for Planning - 504,000,000
SD for Devolution 50,000,000 1,912,952,000
SD for 6,508,500,000 1,947,552,000
Infrastructure
SD for Transport 3,594,000,000 1.964,500,000
SD for E&NR - 1,200,000,000
SD for W&RA - 6,764,727,277 48,039,143,133
SD for Agriculture 755,192,000 1,366,409,588
SD for Livestock 85,000,000 65,000,000
SD for Fisheries 20,000,000 50,000,000
506000 European
Investment Bank 860,000,000 485,000,000 1,345,000,000
(EIB)

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 MOE&P
510000 African
Development
Fund (ADB/ADF) 4,697,500,000 100,000,000
MOE&P
SD for Planning 727,4243,000 267,000,000
SD for S&T 2,458,200,000 -
SD for 9,450,000,000 -
Infrastructure
SD for Transport 500,000,000 -
SD for E&NR 41,400,000 40,360,000 21,485,504,080
SD for W&RA 2,458,000,000 42,000,000
SD for Agriculture 499,582,180 204,037,900
5120000 Arab Bank for
Economic
Development in 60,000,000 -
Africa (BADEA)
MOH
MOE&P 100,000,000 -
SD for 170,000,000 - 880,000,000
Infrastructure
SD for W&RA 50,000,000 -
SD for Agriculture 500,000,000 -
513000 Organisation of
Petroleum
Exporting 50,000,000 -
Countries (Opec)
MOH
MOE&P 110,000,000 - 830,000,000
SD for 170,000,000 -
Infrastructure
SD for Agriculture 500,000,000 -
526000 International
Fund for
Agricultural
Development 665,104,800 1,312,801,822 1,977,906,622
(Ifad)
SD for Agriculture
Aggregate Loans 100,199,217,213 36,185,784,722 136,385,001,935.00

(i) MOE&NR – Ministry of Environment and Natural Resources;

(ii) MOE&P – Ministry of Energy and Petroleum;
(iii) SD for W&RA State Department for Water and Regional Authority;
(iv) SD for Infrastructure - State Department for Infrastructure;
(v) MOH – Ministry of Health;
(vi) SD for Agriculture - State Department for Agriculture;
(vii) SD for E&NR - State Department for Environment and Natural Resources;
(viii) SD for Planning - State Department for Planning;
(ix) SD for S&T – State Department for Science and Technology;
(x) SD for Transport – State Department for Transport;
(xi) SD for Devolution – State Department for Devolution;
(xii) SD for Education – State Department for Education;
10 | P a g e o f 2 2
 (xiii) SD for Fisheries – State Department for Fisheries;
(xiv) MOLH&UD – Ministry of Lands, Housing and Urban Development;
(xv) MOIC&T – Ministry of Information, Communication and Technology; and,
(xvi) MOLSS&S – Ministry of Labour, Social Security and Services.

25. The petitioners are also aggrieved that a sizeable amount of the borrowed
money is in Appropriation-in-Aid (A-in-A) loans, which are detrimental to the
economy because they are designed to benefit the lenders, who retain the
money and make direct payments to foreign suppliers of goods and services.
And that is done outside Kenyan law and with no input from our oversight
institutions.

26. Table 4 above demonstrates that A-in-A loans aggregated to

Kshs100,199,217,213. That means that only Kshs36,185,784,722, out of
Kshs136,385,001,935.00, equivalent to 26.5%, was paid into the Consolidated
Fund. The rest was used by the lender to directly procure contractors.

G. Glaring Irregularies in the Statement of Actual Revenue and Net exchequer

Issues as of 31st January 2025 in respect of 2024/2025 Financial Year

27. Actual borrowings are far much greater than development expenditure
(i) From Table 5 below, it is clear that contrary to Article 220(1) of the
Constitution, as read together with Sections 15(2)(c) & 50(3) of the PFMA,
the Cabinet Secretary borrowed a whopping Kshs638,713,399,853 (in both
domestic and external loans) against the development expenditure of only
Kshs139,331,098,887 approved by the National Assembly. Therefore, loans
accumulating to the difference of Kshs499,382,300,966 were required and
were not invested in any development projects.

(ii) Consequently, in the seven months from 1st July 2024 up to 31st January
2025 the Cabinet Secretary grew the odious debt by Kshs 499,382,300,966.
Table 5
Borrowings for seven months Development Odious
01/07/2024 to 31/01/2025

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Domestic Loans External Loans Total expenditure Borrowings

526,919,225,761 111,794,174,092 638,713,399,853 139,331,098,887 499,382,300,966

28. Deficit from Public Debt Repayment vs. Revenue Raised

(i) From 1st July 2024 up to 31st January 2025, public debt repayment
aggregated to Kshs772,842,324,057 whereas the actual revenue raised
aggregated to Kshs1,357,286,327,278 comprising of the opening balance
on 01/07/2024, tax revenue, non-tax revenue, and other domestic
financing.

(ii) Upon payment of public debt of Kshs772,842,324,057 from the

Kshs1,357,286,327,278 tax revenue total, the balance is
Kshs584,444,003,221, meaning repayment of public debt consumed 57% of
the total revenue raised.

(iii) Further, the Kshs584,444,003,221 balance could not finance the

Kshs1,994,809,663,634 total estimates of expenditure (including of county
governments), resulting in a deficit of Kshs1,410,365,660,413.

(iv)This is a classic case of literally living beyond our means, where the national
government comes up with unrealistic estimates of expenditure without a
corresponding revenue base to finance them. But instead of tightening our
belts, it is a matter of public record that the government has been
splashing money on unnecessary things, such as the recent costly
renovations undertaken to change the face of State House, and the
reported bribing of Kenyan masses to attend political rallies across the
country.
Table 6
Total Revenue raised from 01/07/24 to 28/02/25 vs. Public Debt Repayment

Total Revenue Repayment of public Balance % of repayment

debt of debts vs. Tax
raised

12 | P a g e o f 2 2
 1,357,286,327,278 772,842,324,057 584,444,003,221 57%

Total Expenditure from 01/07/2024 to 31/01/2025 vs. Revenue Balance

Total Expenditure Balance of Revenue Balance

1,994,809,663,634 584,444,003,221 (1,410,365,660,413)

29. State Officers’ Salaries, Allowances, and Miscellaneous

(i) In the 2024/2025 financial year, the budget for the “State Officers’ Salaries,
Allowances, and Miscellaneous”, which are paid directly from the
Consolidated Fund without appropriation by Parliament, aggregated to
Kshs4,209,674,431 per year, which averages to Kshs346,389,536 per month.

(ii) Table 7 shows that up to 31st December 2024, the cumulative payment for
the said salaries, allowances, and miscellaneous aggregated to
Kshs1,723,787,530. However, by 31st January 2025, the cumulative
payments surged sharply to Kshs21,718,109,025. This means that, in January
2025, if the average monthly payment of Kshs346,389,536 is deducted,
then an extra Kshs19,647,931,959 was irregularly paid out of the
Consolidate Fund on the pretext that it was going to fund the said salaries,
allowances, and miscellaneous.

(iii) Since there was no corresponding spike in the employment of these cadre
of State officers, it goes without saying that the extra Kshs19,647,931,959
was siphoned out of the Consolidated Fund unbudgeted expenditure. And
given what was happening at the time, it is reasonable to suspect that the
money was used to finance Kenya’s stillborn bid to clinch the chairmanship
of African Union, whose elections were held in Addis Ababa in February
2025.
Table 7
State Officers’ Salaries, Allowances, and Miscellaneous

Payment up to 31st December 2024 1,723,787,530

13 | P a g e o f 2 2
 Payment up to 31st January 2025 21,718,109,025

Amount paid in the month of January 19,994,321,495

Payment per month 346,389,536

Amount siphoned out of the consolidated fund 19,647,931,959

unlawfully in the month of January 2025

H. An Illustration that Eurobond loans were odious debts

30. Table 8 below provides evidence that the Eurobonds were not borrowed to
finance any budgeted development expenditure as required under Section
15(2)(c) of the PFMA.
TABLE 8
Extracted from Development Expenditure Budget and Statement of Public Debt
Financial Gross Financed by Eurobond
Year Development Tax Revenue External Loans borrowed outside
Expenditure (KES) (KES) the Budget not
(KES) earmarked for any
Project
(KES)
2014/2015 494,892,120,733 358,507,118,798 136,385,001,935 175,900,000,000
2017/2018 642,897,327,706 438,630,011,332 204,267,316,374. 207,400,000,000
2018/2019 677,225,634,213 430,408,353,462 246,817,280,751 214,179,000,000
2020/2021 633,308,563,243 382,969,235,979 250,339,327,264 113,000,000,000
This using the rate of exchange applicable at the time the Eurobond was
purportedly received.

I. Odious Debts from 2014/2015 to 2024/2025

31. As demonstrated in Table 3 above, the National Assembly authorised

borrowings aggregating to only Kshs2,791,543,336,707 for the financial years
from 2014/2015 to 2024/2025. However, Presidents Uhuru Kenyatta and William
Samoei Ruto borrowed Kshs9,741,706,469,035. Consequently, they borrowed
an extra Kshs6,950,163,132,328 in violation of the law. They did it without the
authority of the Kenyan people, and the money was not used for any known
public purpose, let alone development projects.

14 | P a g e o f 2 2
J. Case Against former President Kenyatta over Odious Debts

32. In the eight financial years from 2014/3015 to 2021/2022, President Kenyatta
borrowed a total of Kshs6.607 trillion, of which only Kshs2.001 trillion was
authorised by Kenyans through their representatives in the National Assembly.

33. Consequently, he is accused of fraudulently borrowing Kshs4.606 trillion, and

the money was not used for any known public purpose, let alone
development projects.

K. Case Against President Ruto over Odious Debts

34. In less than 2½ financial years from 2022/2023 to 2024/2025 (November 2024),
President Ruto has borrowed Kshs3.135 trillion, of which only Kshs884.378
million was authorised by Parliament.

35. Consequently, he is accused of fraudulently borrowing Kshs2.250 trillion, which

was not authorised by Kenyans and the money was not used for any known
public projects.

L. Case Against Key Oversight Institutions

a. The Controller of Budget has been sued for failing to oversee the
implementation of the Budget contrary to Articles 206(3) & (4) and 228(4)
& (5) of the Constitution, including by authorising withdrawals from the
Consolidated Fund to repay odious loans the Executive borrowed without
the approval of Parliament and the authority of the President vide an
Appropriation Act.

b. The Auditor-General has been sued for failing under Article 229(4)(g) & (6)
to audit and confirm whether the Eurobond loans and subsequent

15 | P a g e o f 2 2
 proceeds were borrowed and applied lawfully and effectively. The same
applies to the other odious debts in issue herein.

c.The National Assembly has been sued for acting contrary to Articles 2(4),
3(1), 96(2) and 110 of the Constitution by unilaterally amending the Public
Finance Management Act (PFMA) vide the Public Finance Management
(Amendment) Act 2014, without involving the Senate, and for
contravening Article 206(1) of the Constitution by introducing extra-
exemptions from the requirement that all money raised by the national
government shall be paid into the Consolidated Fund. The National
Assembly is also sued for dereliction of duty by its failure to debate and
consider and take appropriate action on the Auditor-General’s
inadequate and misleading reports on public debt pursuant to Article
229(8) of the Constitution, including on the use of the Eurobond proceeds
and other odious debts.

M. Case Against the Fraudulent Internal Debt Redemption Rollovers

36. A debt redemption rollover is the renewing a loan instead of paying it off
when it is due. The borrower carries over the remaining principal and
sometimes interest to a new loan. Rollover loans are used when a borrower is
unable to repay.

37. Table 9 below demonstrates that unlawfully borrowed domestic loans are
rolled over in successive financial years, adding to the odious debt burden.
President Kenyatta initiated the roll-overs in the financial year 2018
immediately after his infamous “handshake” with former Prime Minister Raila
Amolo Odinga. Thereafter, they were embraced by President Ruto, and have
since increased, starting from the initial Kshs220,352,450,865 in the financial
year 2018/2019 to Kshs512,576,822,119 in the financial year 2024/2025.

38. The petitioners aver that the impugned rollovers are a fraudulent scheme
because:
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(a) Contrary to both the Constitution and the PFMA, the initial loans being
rolled over were never authorised by via Appropriation Acts;

(b) To make matters worse, as demonstrated in Table 9 below, a forward

budget of internal debt rollovers was prepared for the successive three
financial years for 2025/2026 to 2027/2028). This is an outright fraud scheme
as it amounts to creating unlawful domestic loans and anticipating that the
government will fail to repay them. This adds to the Kenyan taxpayers’
burden under the consolidated fund services of repaying both odious debts
and the public debt;

(c) From Table 9, for example, it was baselessly anticipated that the
government would be unable to repay Kshs659,476,880,597,
Kshs60,318,593,570, and Kshs844,444,454,000, and a total of
Kshs2,264,239,928,167 in the financial years 2025/2026, 2026/2027, and
2027/2028, respectively.

(d) Since Treasury Bonds are medium-term and long-term borrowings, the
Kshs1,451,122,452,117 could only have been borrowed for development
expenditure according to Section 50(3) of the PFMA, and should only have
been lawfully borrowed if they were included in the Budget approved by
Parliament (Appropriation Acts) for the respective years.

(e) Government overdrafts are short-term loans borrowed in accordance with

Section 15(3) of PFMA and have to be repaid within a year. Therefore, the
pre-1997 overdraft of Kshs1,110,000,000.00 annually, totalling
Kshs7,770,000,000 for the financial years from 2018/2019 to 2024/2025, is
fraudulent and, therefore, an odious debt that is over 27 years old.

(f) Like overdrafts, Treasury Bills are short-term loans, which are borrowed in
accordance with Section 15(3) of PFMA and must be repaid within one
year. However, the bills in question were allegedly issued in 2018/2019 at a

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 cost of Kshs10 billion, and in 2019/2020, they increased to Kshs100 billion. In
2020/2021, they increased to Kshs200 billion. Since then, the rollover for the
Treasury Bills has remained at Kshs200 billion.
Table 10
Internal Debt Redemption Extracted from the Recurrent Expenditure Budget Books
and the Statements of Actual Revenues and Net Exchequer Issues
Treasury Bonds Pre-1997 Redemption of IMF-On Lent Tax Aggregate
Government Treasury Bills Loan Reserve Redemption Roll-
Overdraft Debt Certificate Over
2018/2019 209,242,150,865 1,110,000,000 10,000,000,000 300,000 220,352,450,865
2019/2020 112,580,235,723 1,110,000,000 100,000,000,000 300,000 213,690,535,723
2020/2021 160,844,731,754 1,110,000,000 200,000,000,000 300,000 361,955,031,754
2021/2022 142,833,941,474 1,110,000,000 200,000,000,000 300,000 343,944,241,474
2022/2023 260,297,600,681 1,110,000,000 200,000,000,000 300,000 461,407,900,681
2023/2024 173,428,247,929 1,110,000,000 200,000,000,000 10,000,000,000 300,000 389,669,830429
2024/2025 391,895,543,691 1,110,000,000 200,000,000,000 10,000,000,000 300,000 512,576,822,119
Sub-total 1 1,451,122,452,117 7,770,000,000 1,110,000,000,000 20,000,000,000 2,100,000 2,503,596,813,045

2025/2026 448,366,580,597 1,110,000,000 200,000,000,000 10,000,000,000 300,000 659,476,880,597

2026/2027 549,208,293,570 1,110,000,000 200,000,000,000 10,000,000,000 300,000 760,318,593,570
2027/2028 633,334,154,000 1,110,000,000 200,000,000,000 10,000,000,000 300,000 844,444,454,000
Sub-Total 2 1,630,909,028,167 3,330,000,000 600,000,000,000 30,000,000,000 900,000 2,264,239,928,167

Grand Total 3,082,031,480,284 11,100,000,000 1,710,000,000,000 50,000,000,000 3,000,000 4,767,836,741,212

N. The Case Against the International Monetary Fund (IMF)’s Odious Debt

39. The IMF has been sued for violating Kenyan laws on borrowing by irregularly
advancing President Ruto’s regime an ‘On-lent loan’, whose redemptions were
rolled over in 2023/2024 and 2024/2025 at Kshs10 billion for each financial
year, as demonstrated in Table 5 above. The Kshs10 billion was forward-
budgeted (redemption rollover) for each of the 2025/2026, 2026/2027 &
2027/2028 financial years, aggregating to Kshs50 billion. The ‘On-lent loan’ was
hidden under the disbursements from the General Resource Account (GRA) of
the Special Drawing Rights (SDRs) 538,310,000 of the Fund.

O. The Burden of Odious Debt on Kenyan Taxpayers

40. Public debt repayment is made with taxes raised by Kenyans. For the last three
financial years, 2021/2022, 2022/2023, and 2023/2024, the average amount
raised from taxes annually is Kshs. 2.2 trillion. In the 2024/2025 financial year,
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 Kshs1,943,593,865,746 was budgeted for the repayment of the public debt,
which included the Kshs933,716,494,944 principal, and Kshs1,009,877,379,802
interest. Applied against the average taxes collected in those financial years, it
means 86% of the tax revenue raised was used to pay the public debt.

41. Given that 71% (being a percentage of Kshs6,950,163,132,328 /

Kshs9,741,706,469,035) of the public debt is odious debt, it means 82% of every
tax rate goes towards repayment of this. Some 82% of the 30% corporate tax,
for example, goes to the repayment of the odious debt.

P. Unconstitutional provisions of the PFMA

42. The petitioners are also challenging the unconstitutional amendments the
National Assembly, excluding the Senate, made to the Public Finance
Management Act. Those amendments made it possible for Presidents
Kenyatta and Ruto to circumvent the Constitution and incur the odious debts.

43. Among the impugned amendments are provisions that:

a. Allow proceeds of loans to be used offshore without being paid into

the Consolidated Fund, contrary to Article 106 of the Constitution;

b. Allow the issuance of sovereign bonds by the Executive without

reference to Parliament;

c. Introduce and set the debt-ceiling at 55% of the GDP; and,

d. Were enacted by the National Assembly without involving the Senate

contrary to Article 110 of the Constitution.

Q. Key Prayers in the Petition

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44. Among many others, the petitioners have asked the High Court for the
following reliefs:

a. A declaration that any loans that were borrowed outside the

National Government’s approved budgets in the applicable
Appropriation Acts, and/or in violation of any written law, and/or
that were not tied to development projects are odious and not
sovereign debts;

b. A declaration that lenders who advance loans to officials of the

Government of Kenya in contravention of Kenyan law knew or
should have known that the loans were illegitimate cannot pursue
the citizens for the repayment of their odious loans;

c. A declaration that Kenyans should not repay the odious debts;

d. A Declaration that the IMF can be sued in Kenyan courts for lending
money to the government in violation of Kenyan law;

e. An order quashing the provisions of the PFMA, which were

challenged in the petition for being unconstitutional;

f. An order permanently prohibiting the Government of Kenya and its

agents, howsoever acting, from borrowing any money without the
approval of Parliament and the authority of the President through
the Appropriation Acts;

g. An order permanently prohibiting the Government of Kenya and its

agents, howsoever acting, from repaying or continuing to repay
odious debts;

h. An order compelling former President Kenyatta and the officials who

failed to stop the heist (President Ruto, former Controller of Budget
Agnes Odhiambo, former Auditor-General Edward Ouko, former
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 Attorney-General Prof Githu Muigai, former Treasury Cabinet
Secretary Henry Rotich, former Treasury Principal Secretary Kamau
Thugge, former Treasury Cabinet Secretary Ukur Yatani, former
Treasury Cabinet Secretary Njuguna Ndung’u, Controller of Budget
Margaret Nyakang’o, Auditor-General Nancy Gathungu, and former
EACC Secretary/CEO Halakhe D. Waqo) to refund the National
Treasury the principal Kshs.4,605,840,278,922 odious debts plus costs
and interest incurred on them; and,

i. An order compelling President Ruto and the officials who failed to

stop the heist (former Treasury Cabinet Secretary Njuguna Ndung’u,
the Controller of Budget Margaret Nyakang’o, and Auditor-General
Nancy Gathungu) to refund the National Treasury the principal
Kshs2,250,325,905,200 odious debts plus costs and interest incurred.

R. Parties in the Petition

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
versus
HE (former) President Uhuru Muigai Kenyatta 1st Respondent
HE President William Samoei Ruto 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

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Former Treasury Cabinet Secretary Njuguna Ndung’u 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 Commission 20th Respondent
Former EACC CEO Halakhe D. Waqo 21st Respondent
International Monetary Fund (IMF) 22nd Respondent
and
The Senate of Kenya Interested Party

Signed_____________________________ Date 06th April, 2025

Okiya Omtatah Okoiti

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