NAIROBI, Kenya — Senator Okiya Omtatah has mounted a major constitutional challenge against Kenya’s public debt stock of approximately Sh6.95 trillion, including multi-billion-dollar Eurobond loans, in a case that could reshape how sovereign borrowing is reviewed and enforced in the country.
At the centre of the petition is the argument that a significant portion of Kenya’s public debt accumulated between the 2014/15 and 2024/25 financial years was allegedly incurred without proper parliamentary approval, constitutional compliance, or demonstrable public benefit.
The petition further claims that Eurobond proceeds and other external borrowings were not fully channelled through constitutionally mandated public finance systems, raising questions about legality, transparency, and accountability in debt management.
Omtatah argues that the Executive violated key provisions of the Constitution of Kenya 2010 by borrowing funds without a valid appropriation by Parliament and by allegedly diverting proceeds outside the Consolidated Fund framework required under Article 206.
The case also challenges amendments to the Public Finance Management Act 2012, which he claims weakened oversight mechanisms and enabled unsanctioned borrowing and debt servicing arrangements.
A central pillar of the petition is the invocation of the “odious debt” doctrine, under which debt incurred without public consent, without benefit to citizens, and with lender awareness of irregularities may be declared non-binding on the population.
The senator also relies on constitutional jurisprudence, including principles drawn from the landmark David Ndii & Others v Attorney General (BBI case), arguing that any transaction derived from an unconstitutional act becomes equally invalid.
He further contends that successive borrowings, refinancing arrangements, and debt repayments form part of a “derivative illegality chain,” rendering them unenforceable against taxpayers.
Another key argument is that lenders failed to exercise due diligence, particularly where Eurobond proceeds were allegedly placed or managed outside approved public financial channels, which he says should have raised red flags on legality.
Omtatah also raises issues of public policy, arguing that a significant share of government revenue has been directed toward debt servicing rather than development, undermining socio-economic rights such as health, education, and infrastructure delivery.
The petition seeks sweeping remedies, including declarations that portions of the debt are unconstitutional and invalid, that certain legislative amendments are void, and that specific public officials may bear personal liability under Article 226(5) of the Constitution for unlawful management of public funds.
If successful, the case could have far-reaching implications for Kenya’s fiscal policy, international credit obligations, and future borrowing frameworks, potentially triggering legal and diplomatic scrutiny over sovereign debt agreements.
The matter is expected to test the balance between fiscal sovereignty, parliamentary oversight, and international lending frameworks in one of Kenya’s most consequential public finance disputes in recent years.
