A three-judge High Court bench has been constituted to hear an application by the National Assembly seeking the dismissal of a petition challenging amendments made to the Public Finance Management (PFM) Act in 2014.
The bench, formed earlier this week by Chief Justice Martha Koome, will be led by Justice Francis Gikonyo and comprises Lady Justice Roseline Aburili and Justice Moses Ado Otieno.
The petition was filed by Busia Senator Okiya Omtatah and eight others, who are questioning the legality of government borrowing between the 2014/2015 and 2024/2025 financial years. The National Assembly is listed as the first respondent, alongside 22 others, including former President Uhuru Kenyatta, the Attorney General, the Treasury Cabinet Secretary, the International Monetary Fund (IMF), the Office of the Controller of Budget and the Central Bank of Kenya.
In its affidavit, the National Assembly argues that the petition is premature, stating that the petitioners bypassed constitutionally mandated mechanisms for raising concerns over public financial management. The House says the petitioners failed to file complaints with the Auditor General as provided under the Public Audit Act, and did not petition Parliament under Article 119 of the Constitution—both avenues available for seeking reviews or audits of public funds.
“By attempting to bypass these mechanisms, the petitioners strip the Court of jurisdiction to determine the issues raised,” the National Assembly argues.
The House further notes that Parliament had already initiated actions related to the concerns raised. It cites a November 30, 2023 report by the Public Accounts Committee (PAC), which recommended a forensic audit of Kenya’s public debt portfolio. Following that recommendation, the Office of the Auditor General commenced the audit, which is currently underway.
According to the National Assembly, the petition touches on matters already under review by constitutionally empowered institutions, making the petition non-justiciable at this stage.
The three-judge bench is expected to issue directions on the hearing of the petition in due course.
