Introduction
1. The consolidated Petitions challenge the constitutionality of Executive Order No. 4 of 2024, published vide Gazette Notice No. 8261 of 2024 on 5 th July 2024, by which H.E. the President established the Presidential Taskforce on the Forensic Audit of Public Debt .
2. The heart of the consolidated Petitions is that the executive order unlawfully usurps and duplicates the explicit constitutional mandate of the 4 th Respondent. Consequently, the Petitioners contend that the impugned Executive Order is unconstitutional , null and void ab nitio .
3. The 1 st and 2 nd Petitioners filed their Petition on 7 th July 2024 which is supported by the 1 st Petitioner’s affidavit of even date.
4. The Petitioner traces the dispute to Executive Order No. 4 of 2024 , published by H.E. the President of the Republic on 5 th July 2024 in the Gazette Notice No. 8261 of 2024 , dubbed establishing the Presidential Taskforce on the Forensic Audit of Public Debt .
5. The President through the Executive Order, appointed the 5 th to 15 th Respondents as members of the Taskforce. The Petitioners challenge the constitutionality of both the Executive Order and the establishment of the Taskforce. They are contending that they violate various provisions of the Constitution and the law and consequently consider them null and void.
6. The Petitioners contend that, in establishing the Taskforce, the President violated the sovereignty of the people guaranteed under Article 1 of the Constitution. It is the Petitioners case is that the people of Kenya delegated the constitutional mandate of undertaking a forensic audit of public debt to the 4 th Respondent under Article 229(4)(g) of the Constitution, as read together with Article 252(1)(a) and (2), which empowers the 4 th Respondent to undertake such audits and determine matters falling within that mandate.
7. The Petitioners further point out that Article 254(2) of the Constitution, as read together with Section 37 of the Public Audit Act , empowers the President, at any time, to require the 4 th Respondent to undertake and submit a forensic audit report on Kenya's public debt for such period as the President may specify.
8. Consequently, the Petitioners aver that the appointment of other persons other than the 4 th Respondent to perform that function of the 4 th Respondent expressly Articles 226(3), 229(1), (2) and (4)(g) of the Constitution. Similarly, the Petitioners contend that the appointment of the 5 th to 15 th Respondents contravenes Article 252(1)(c) of the Constitution, as the President has no constitutional authority to recruit staff to undertake functions reserved for the Office of the 4 th Respondent.
9. It is further the Petitioners' case that, by issuing the impugned Executive Order and establishing the Taskforce, the President arrogated to himself powers not conferred by the Constitution, contrary to Articles 2(2) and 10(2). They similarly maintain that the manner in which the President exercised his authority fell short of the constitutional standards of leadership and integrity set out under Article 73 of the Constitution.
10. The Petitioners as well aver that the Taskforce's terms of reference do not provide for any remuneration or benefits of the persons appointed out of public funds. They contend that this omission raises a reasonable apprehension that the Taskforce was constituted to advance the private interests of unknown persons rather than to serve the people of Kenya in accordance with the Constitution and the law.
11. Additionally, the Petitioners aver that the establishment of the Taskforce and the appointment of its members was undertaken without any public participation, notwithstanding that public participation is a national value and principle of governance enshrined under Articles 10(2)(a) and 201(a) of the Constitution.
12. The Petitioners also fault the accountability framework established under the Executive Order, arguing that the Taskforce reports solely to the President in the execution of its mandate, contrary to Articles 1(1), 2(1) and (2), 10(2)(c), 94(4), 95(1), (2) and (5)(b), 96(1), 201, 229(7) and (8), and 254(2) and (3) of the Constitution. They compare this with the constitutional framework governing the 4 th Respondent, whose audit reports, including forensic audit reports prepared pursuant to Article 254(2) of the Constitution, must be published and publicized. According to the Petitioners, the Executive Order contains no similar safeguard, thus no person other than the President knows how any report generated by the Taskforce will be dealt with.
13. Ultimately, the Petitioners contend that the President's actions offend Articles 3(1), 10(2), and 131(2)(a) and (e) of the Constitution. They maintain that the impugned Executive Order amounts to an unconstitutional usurpation of the 4 th Respondent’s constitutional mandate and should therefore be declared unconstitutional.
14. On this premise the Petitioners seek the following relief against the Respondents:
i. A declaration that H.E. the President of the Republic of Kenya, could not constitutionally establish a Taskforce to audit the public debt of the Republic in the manner, composition and terms as set out in Executive Order No. 4 of 2024, published as Kenya Gazette No. 8261 of 2024 and dated 05.07.2024.
ii. A declaration that Executive Order No. 4 of 2024, published as Kenya Gazette No. 8261 of 2024 and dated 05.07.2024, is unconstitutional, null and void.
iii. A declaration do issue that the establishment of presidential taskforce on forensic audit of public debt through Executive Order No. 4 through Gazette Notice No. 8261 vol. cxxvi—no. 97 on 5 th July 2024 contravened inter alia 1, 2(1, 2 and 4), 3(1), 10, 73, 74, 75[1], 93, 94, 95, 96(1), 129, 131, 132, 156, 159, 201, 226(3), 229, 232, 248, 249, 254(2) & (3), 259 and 260 of the Constitution, the Public Audit Act, the Public Finance Management Act and Public Finance Management Regulations 2015 by usurping the powers of the Auditor General and/or those of the Internal Audit office and a result that the Taskforce and its resultant report are, therefore, unconstitutional, null and void.
iv. An order declaring as unconstitutional, null and void, Executive Order No. 4 of 2024, published as Kenya Gazette No. 8261 of 2024 and dated 05.07.2024.
v. Judicial review orders of certiorari quashing Executive Order No. 4 of 2024, published as Kenya Gazette No. 8261 of 2024 and/or any other document dated 05.07.2024 and/or any other date.
vi. Judicial review orders of certiorari quashing Kenya Gazette No. 8261 of 2024 and dated 05.07.2024.
vii. An order that any report borne out of the above impugned gazette notice/executive order is null and void.
viii. Judicial orders of mandamus compelling the Respondents to comply with relevant constitutional provisions and/or any other law.
ix. A judicial review order of prohibition prohibiting the Respondents, its servants and/or agents from using and/or applying the said report and/or gazette notice and/or recognizing or using any item related to the impugned exercise.
x. Any other appropriate relief the court may deem just to grant
xi. This being a public interest Petition filed in defence of the Constitution, each party herein to meet their costs.
7 th and 12 th Respondents’ Case
15. In response to the Petition, the 7 th and 12 th Respondents filed their Grounds of Opposition dated 2 nd April 2025 citing the following grounds:
i. The Petition has not been framed with a reasonable degree of precision showing the particulars of the violation and manner of contravention of the Constitution.
ii. By creating the impugned taskforce, the President was acting within his constitutional mandate as provided for under the provisions of Article 132(3) and (4) of the Constitution which inter-alia includes formulation of policies aimed at effective and efficient governance.
iii. The Executive Authority as outlined under the relevant provisions of the Constitution is wide and essentially involves preparation, initiation and implementation of legislation, development and implementation of legislation, national policies and co-ordination of State Departments. The President can indeed form a Task Force for advisory purposes as regards due execution of the Executive Authority.
iv. The constitutional mandate of the President under Article 132 and indeed the entire Executive Authority vis a vis the powers vested in the independent bodies and offices are not mutually exclusive but the Constitution contemplates collegiality in the promotion and advancement of the national values and principles.
v. From the text of the impugned Executive Order, it does not seek to usurp the functions of the Auditor General, but purely as an advisory to the Executive which would assist the President in the discharge of the Executive Powers as outlined in the Constitution.
vi. The President by dint of the provisions of Article 10 of the Constitution is equally bound to promote good governance and integrity in all areas including public debt and this function is complementary and not exclusive to the powers of the Auditor General.
8 th and 9 th Respondents’ Case
16. In support of the Petition, the 8 th and 9 th Respondents filed their Replying Affidavit through Florence Muturi sworn on 11 th July 2024.
17. It was deponed on behalf of the 8 th and 9 th Respondents that following establishment of the Taskforce, the 9 th Respondent, having noted the unconstitutionality of the process and the proposed task, declined to participate in it and advised the President against usurping the constitutional mandate of the 4 th Respondent.
18. The 8 th and 9 th Respondents maintained that the Constitution vests the exclusive mandate of auditing public debt in the 4 th Respondent under Articles 226 and 229 of the Constitution, as read together with Sections 7, 9, 34 and 37 of the Public Audit Act. They averred that the 4 th Respondent is constitutionally empowered to undertake annual, performance, procurement, periodic and forensic audits, either on his or her own initiative or upon request by Parliament or other authorized entities. Furthermore, is conferred with extensive investigative powers, including the power to obtain expert assistance, summon witnesses, access public records and conduct investigations. The 8 th and 9 th Respondents thus contended that the Constitution and the Public Audit Act already provide a comprehensive legal framework for the auditing of public debt, leaving no constitutional or statutory basis for the President to establish a parallel body to undertake the same functions.
19. The 8 th and 9 th Respondent further contended that all audit reports prepared by the 4 th Respondent are constitutionally required to be submitted to Parliament or the relevant County Assembly for consideration, debate and appropriate action. By contrast, the impugned Taskforce is required to report solely to the President, a process which, they argue, is unknown to the Constitution and incapable of giving rise to any lawful parliamentary consideration, recommendations or implementation. The 8 th and 9 th Respondents that contended that any report generated by the Taskforce would be devoid of legal efficacy, rendering the entire exercise an unnecessary and wasteful expenditure of public resources.
20. The 8 th and 9 th Respondents maintained that the Public Finance Management Act already establishes an elaborate statutory framework for public debt management through the National Treasury and the Public Debt Management Office. In their view, the Taskforce's mandate substantially overlaps with the constitutional and statutory responsibilities of both the 4 th Respondent and the National Treasury, thereby unlawfully interfering with the functions of constitutionally established institutions.
21. According to 8 th and 9 th Respondents, the establishment of the Taskforce amounts to an unconstitutional usurpation of the 4 th Respondent’s mandate and undermines the independence of the office contrary to Articles 229 and 249 of the Constitution. Further to this, it is contended that funding of the Taskforce from public funds to perform duties already assigned to another body violates Article 201 of the Constitution.
22. The 8 th and 9 th Respondents further averred that the Taskforce's findings would inevitably duplicate or conflict with previous audit reports already prepared by the 4 th Respondent thus undermining existing audit processes and recommendations. Equally, they faulted the directive by the President to the Taskforce to report to him, asserting that this improperly usurps Parliament's constitutional oversight role over public debt under Articles 94 and 95 of the Constitution.
23. Further, the 8 th and 9 th Respondents contended that the establishment of the Taskforce defeats the constitutional architecture creating independent commissions and offices under Chapter 15 of the Constitution. They averred that the causes of Kenya's increasing public debt have already been documented in numerous audit reports and that creating another Taskforce serves only to excuse past financial mismanagement, institutionalize impunity and weaken accountability in the management of public resources.
13 th Respondents’ Case
24. In opposition to the Petitioner’s case, the 13 th Respondent filed its Grounds of Opposition dated 27 th January 2025 on the basis that:
i. The Constitution places significance on transparency and accountability in public affairs. The principles and values of governance in public service as stipulated in Article 10 must be deployed transparently and accountably. Thus, where public resources are being utilized to establish the status of our foreign debt, then that action is prudent so long as the same does not undermine the authority of the Auditor General.
ii. The actions to be carried out by the 'Taskforce' do not in any way abrogate the Auditor General's mandate.
iii. Under Article 132 (1) (c) (i) & (ii) of the Constitution, the President has a mandatory distinct and/ or independent role of ensuring the realization of the national values prescribed in Article 10 of the Constitution and to take specific measures to ensure their realization. Additionally, the President is constitutionally obligated to report to the nation in a national address and in the Kenya Gazette all the measures he has taken to realize the national values which include but not limited to good governance, accountability and sustainable development.
iv. The President's constitutional role under the said provisions is independent of similar roles constitutionally assigned to various persons and institutions including independent commissions like that of the Auditor General.
v. Further, as per the impugned Gazette Notice, the Terms of Reference of the 'Taskforce' include inter alia, to:
a. Assess the adequacy of the Public Finance Management (PFM) framework safeguards on debt management and recommend changes in control environment to strengthen the governance of the nation's public debt management system;
b. In light of the current debt burden, the imperative for fiscal consolidation and the constrained fiscal space, recommend alternative sources of financing the country's development needs in the short and medium term and any debt reorganization plan;
c. To consider, perform, or advise on any other matter or subject ancillary to the above.
vi. The Public Debt Audit role is not an exclusive role to the Auditor General. Section 33 of the Public Finance Management Act (PFMA) calls upon the Cabinet Secretary to submit the National Government Debt Management Strategy of the national government over the medium term with respect to its actual liability in respect of loans and guarantees and its plans for dealing with those loans.
vii. The Constitution does not impose an obligation upon the President to facilitate public participation before issuing the directive in the impugned Gazette Notice.
viii. The impugned Gazette Notice shows that the mandate of the Taskforce factored in the element of public participation as follows: (iv) (b) In the performance of its mandate, the Taskforce shall consult with stakeholders in the Public Finance Sector including industry players, associations and lobby groups, regulators and Government agencies, and any other person or entity as the Taskforce shall deem necessary .
ix. Petitioners' assault on the issue of public participation is premature in that, in any event, at this stage we are dealing with the executive decision to establish a Taskforce and once the decision is reduced into a policy or a legislation, then it must be subjected to public participation.
x. The very nature of the 'Taskforce' is an advisory role. Its membership is ad hoc in nature and its members are not public officers. It is not a state office and neither are its members state officers whose appointments are subject to the vetting and approval process of Parliament.
xi. No evidence has been submitted to justify the assertion that members of the Taskforce or any of them lacks integrity, competence or is unsuitable to serve or that their appointments were influenced by improper motives, favoritism, nepotism or corrupt practices.
xii. On the issue of remuneration of the Taskforce, since the establishment of the Taskforce falls within the President's mandate, the costs incurred properly fall within the permissible budget and if any abuse is found to exist on the actual amounts used by the Public Debt Audit Taskforce, then the Auditor General is legally mandated to audit the accounts in conformity with Article 226 (3) of the Constitution.
xiii. The Petition is frivolous, speculative and otherwise antithetical to the public interest objectives of the Taskforce as there are no constitutional or statutory violations against the Petitioners in any manner as alleged or at all and the same ought to be dismissed with costs.
25. Similarly, the 3 rd Petitioner, Alice Ng’ang’a, challenges the constitutionality of Executive Order No. 4 of 2024 establishing the Presidential Taskforce on the Forensic Audit of Public Debt in the Petition dated 8 th July 2024 which is supported by her affidavit. She contends that both the establishment and appointment of the Taskforce’s members is unconstitutional.
26. According to the 3 rd Petitioner, the Taskforce unlawfully usurps, undermines and duplicates the constitutional mandates of the 4 th Respondent, the 1 st Interested Party and the 3 rd Respondent contrary to Articles 94, 95, 96, 211, 226, 228, 229, 252 and 254 of the Constitution. She asserts that the Constitution has already established an elaborate framework for the oversight of public debt through these independent constitutional offices and institutions. In particular she notes that, the 4 th Respondent is constitutionally mandated to audit and report on public debt, the 1 st Interested Party oversees withdrawals from the Consolidated Fund and County Revenue Funds, the 3 rd Respondent is required to report to Parliament on public debt under Article 211 of the Constitution as read with the Public Finance Management Act, while Parliament exercises oversight by considering those reports and taking appropriate action. The 3 rd Petitioner thus contends that the creation of the Taskforce unnecessarily duplicates these constitutional functions, undermines the independence of the affected offices and occasions unwarranted expenditure of public resources.
27. Furthermore, the 3 rd Petitioner contends that the establishment of the Taskforce violates the national values and principles of governance and public finance under Articles 10, 201 and 232 of the Constitution. She avers that the Taskforce duplicates the work of existing constitutional institutions that are already funded by public resources, thereby offending the principles of public finance.
28. Further, the Petitioner challenges the process through which the members of the Taskforce were appointed, asserting that the appointments were made unilaterally by the President without consultation with the Public Service Commission, advertisement of the positions, competitive recruitment or interviews, contrary to the constitutional principles of fairness, merit, transparency and equal opportunity in public appointments. The 3 rd Petitioner additionally raises concerns that the composition of the Taskforce excludes youth and persons with disabilities in contravention of Articles 27 and 56 of the Constitution and alleges that the appointment of the Chairperson, Nancy Onyango, a former senior auditor with the International Monetary Fund (IMF), presents an apparent conflict of interest given the IMF's status as one of Kenya's principal lenders.
29. Further to this, the 3 rd Petitioner asserts that the establishment of the Taskforce and the appointment of its members was undertaken without public participation, contrary to Articles 10, 201(a) and 232(1)(d) and (f) of the Constitution. She points out that the decision was made at a time when Kenyans were demanding financial transparency and prudent use of public resources, yet no opportunity was afforded to the public to participate in determining the necessity of establishing the Taskforce or in the appointment of its members.
30. In conclusion, the 3 rd Petitioner contends that the impugned Executive Order violates the doctrine of legitimate expectation anchored in Articles 1, 2 and 3 of the Constitution. The Petitioner maintains that the public expects the President and other State organs to uphold the Constitution by allowing constitutionally established institutions to discharge their respective mandates without interference or duplication. It is further asserted that the public is entitled to expect that public resources will be utilized prudently, such appointments be undertaken transparently and be involved in decision making. Consequently, she underscores that the establishment of the Taskforce is inconsistent with the Constitution and ought to be declared unconstitutional.
31. Accordingly, the 3 rd Petitioner seeks the following reliefs:
i. A declaration that Executive Order No. 4 of 2024, issued vide Gazette Notice Vol. CXXVI-NO. 97 is in breach of Articles 2, 3, 4(2) ,10, 56, 93, 94, 95, 96, 201, 211, 225, 226, 228, 229 and specifically Article 229 (3) (g), 232, 248, 252 and 254 of the Constitution is unconstitutional, null and void.
ii. A declaration that Executive Order No. 4 of 2024, issued vide Gazette Notice Vol. CXXVI-NO. 97 is in breach of the Public Finance Management Act, Cap 412A and the Public Service (Values and Principles) Act, Cap 185A and therefore unlawful.
iii. An order of certiorari quashing Executive Order No. 4 of 2024, issued vide Gazette Notice - Gazette Notice Vol. CXXVI-NO. 9IV.
iv. Costs of and incidental to these proceedings.
v. Such other, further, additional, incidental and/or alternative reliefs or remedies as the Court shall deem just and expedient.
1 st Respondent’s Case
32. In reaction to the 3 rd Petitioner’s Petition, the 1 st Respondent filed Grounds of Opposition dated 9 th September 2024 on the grounds that:
i. The Petition does not disclose any violation of the Petitioners’ fundamental rights and freedom by the Respondents.
ii. The Applicant has failed to demonstrate that he has an arguable case with the likelihood of success as was captured in the case of Charles Munyendo Olingo V Salim Chetechi Makokha & Another (2019) KLR .
iii. The law imposes both legal and evidentiary burden of proof upon the Petitioner, which burden the Petitioner has failed to discharge in the present Petition.
iv. The Constitution vests the discretion on the organization and coordination of the National Government upon the Presidency who in furtherance of the same may establish a Taskforce to enable him achieve his goals.
v. In no way does the taskforce contravene the function and the mandate of the Auditor General nor does it usurp the role of the Auditor General.
vi. The composition and mandate of the Taskforce is quite different compared to the mandate and functions of the Auditor General established under Article 229(4) of the Constitution.
vii. The Petition has not been pleaded with precision; it does not particularize the exact provisions of the Constitution that are alleged to have been violated and the manner of such violation as set out in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others (2013) eKLR and Nasra Ibrahim Ibren v Independent Electoral and Boundaries Commission & 2 others [2018] eKLR .
viii. Article 132(3) of the Constitution empowers the President to direct and coordinate the functions of ministries and government departments and in doing so it may be necessary to establish a Taskforce such as the one that is the subject of the current litigation in order to help him discharge his constitutional obligation, thus that cannot be said to be a violation of the Constitution.
ix. In the matter of John Harun Mwau v Attorney General (2015) eKLR , the Court stated that for the Court to order the President to exercise his discretion in a particular way or to certain officers, would be similar to taking away discretion that is bestowed only in the President.
x. In Thirdway Alliance Kenya and Anor vs Head of the Public Service, Joseph Kinyua & 2 others; Martin Kimani & 15 Others [2020] eKLR , it was noted that executive powers have to be understood and interpreted in the light of the provisions of the Constitution and the doctrine of separation of powers implicit therein.
xi. Article 132(4) of the Constitution provides that the President may perform any other executive function provided for in the constitution or national legislation while Article 129 of the Constitution provides that executive authority is derived from the people of Kenya and shall be exercised in accordance with the Constitution.
xii. The orders sought if granted would constitute a usurpation of the executives’ constitutional roles and prerogatives contrary to the principle of separation of powers as was rightly observed by the Supreme Court in the Matter of the Speaker of the Senate & another [2013] eKLR Advisory opinion no. 2 of 2013 .
xiii. Judicial intervention should be limited to acts that are manifestly in breach of the law or where the Court is satisfied that the decision maker was manifestly unfair and was influenced by other considerations other than the law.
6 th Interested Party’s case
33. Opposing the 3 rd Petitioner’s Petition, the 6 th Interested Party filed Grounds of Opposition dated 27 th May 2025 on the basis that:
i. The Petition is anchored on the establishment and operations of a “Presidential Task Force on Forensic Audit of the Public Debt” via Executive Order No. 4 of 2024. However, it is critical to note that this task force never took effect and the substratum of a Petition ceases to exist, the Court should not expend judicial time on academic and hypothetical grievances.
ii. Without prejudice to the foregoing, the appointment of the Presidential Taskforce on Forensic Audit of Public Debt is not unconstitutional and does not intrude into the role of Parliament or the Auditor-General as established under Article 229 of the Constitution. The Petitioner's argument rests on a misunderstanding of the constitutional mandates and the complementary roles that various government bodies can play in ensuring financial accountability and transparency.
iii. The Constitution grants the President executive powers to ensure the efficient administration of the country. Under Article 132(1)(c), the President is mandated to coordinate the functions of ministries and government departments. This includes the authority to establish task forces and committees to address specific issues of national importance, such as public debt management.
iv. The establishment of a Presidential Taskforce does not negate or usurp the constitutional mandate of the Auditor-General or Parliament but rather complements it. Taskforces can provide additional insights, recommendations, and support that enhance the work of the Auditor-General and Parliament.
v. Article 229(4) of the Constitution indeed requires the Auditor-General to audit public debt within six months after the end of each financial year. However, this does not preclude other bodies from conducting parallel reviews or audits for specific purposes. The primary audit function remains with the Auditor-General, and any findings by the Taskforce can be shared with the Auditor-General to inform their statutory audit.
vi. The Constitution does not explicitly prohibit the establishment of additional mechanisms to scrutinize public debt. Instead, it emphasizes transparency and accountability, which can be achieved through multiple complementary avenues. The appointment of the Presidential Taskforce on Forensic Audit of Public Debt is a constitutional exercise of executive powers aimed at complementing the Auditor-General’s mandate. It provides additional layers of scrutiny and support to ensure comprehensive oversight of public debt, ultimately contributing to greater transparency and accountability in public finance management.
vii. The Petition should therefore be dismissed in its entirety, with costs to the 5 th Interested Party.
Other Parties Cases
34. The other Parties responses and submissions to both Petitions are not in the Court file or Court Online Platform (CTS).
Parties’ Submissions
1 st and 2 nd Petitioners’
35. The 1 st and 2 nd Petitioners’ filed submissions dated 29 th January 2025 and outlined the issues for determinations as: whether the Preside
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1. The consolidated Petitions challenge the constitutionality of Executive Order No. 4 of 2024, published vide Gazette Notice No. 8261 of 2024 on 5 th July 2024, by which H.E. the President established the Presidential Taskforce on the Forensic Audit of Public Debt .
2. The heart of the consolidated Petitions is that the executive order unlawfully usurps and duplicates the explicit constitutional mandate of the 4 th Respondent. Consequently, the Petitioners contend that the impugned Executive Order is unconstitutional , null and void ab nitio .
3. The 1 st and 2 nd Petitioners filed their Petition on 7 th July 2024 which is supported by the 1 st Petitioner’s affidavit of even date.
4. The Petitioner traces the dispute to Executive Order No. 4 of 2024 , published by H.E. the President of the Republic on 5 th July 2024 in the Gazette Notice No. 8261 of 2024 , dubbed establishing the Presidential Taskforce on the Forensic Audit of Public Debt .
5. The President through the Executive Order, appointed the 5 th to 15 th Respondents as members of the Taskforce. The Petitioners challenge the constitutionality of both the Executive Order and the establishment of the Taskforce. They are contending that they violate various provisions of the Constitution and the law and consequently consider them null and void.
6. The Petitioners contend that, in establishing the Taskforce, the President violated the sovereignty of the people guaranteed under Article 1 of the Constitution. It is the Petitioners case is that the people of Kenya delegated the constitutional mandate of undertaking a forensic audit of public debt to the 4 th Respondent under Article 229(4)(g) of the Constitution, as read together with Article 252(1)(a) and (2), which empowers the 4 th Respondent to undertake such audits and determine matters falling within that mandate.
7. The Petitioners further point out that Article 254(2) of the Constitution, as read together with Section 37 of the Public Audit Act , empowers the President, at any time, to require the 4 th Respondent to undertake and submit a forensic audit report on Kenya's public debt for such period as the President may specify.
8. Consequently, the Petitioners aver that the appointment of other persons other than the 4 th Respondent to perform that function of the 4 th Respondent expressly Articles 226(3), 229(1), (2) and (4)(g) of the Constitution. Similarly, the Petitioners contend that the appointment of the 5 th to 15 th Respondents contravenes Article 252(1)(c) of the Constitution, as the President has no constitutional authority to recruit staff to undertake functions reserved for the Office of the 4 th Respondent.
9. It is further the Petitioners' case that, by issuing the impugned Executive Order and establishing the Taskforce, the President arrogated to himself powers not conferred by the Constitution, contrary to Articles 2(2) and 10(2). They similarly maintain that the manner in which the President exercised his authority fell short of the constitutional standards of leadership and integrity set out under Article 73 of the Constitution.
10. The Petitioners as well aver that the Taskforce's terms of reference do not provide for any remuneration or benefits of the persons appointed out of public funds. They contend that this omission raises a reasonable apprehension that the Taskforce was constituted to advance the private interests of unknown persons rather than to serve the people of Kenya in accordance with the Constitution and the law.
11. Additionally, the Petitioners aver that the establishment of the Taskforce and the appointment of its members was undertaken without any public participation, notwithstanding that public participation is a national value and principle of governance enshrined under Articles 10(2)(a) and 201(a) of the Constitution.
12. The Petitioners also fault the accountability framework established under the Executive Order, arguing that the Taskforce reports solely to the President in the execution of its mandate, contrary to Articles 1(1), 2(1) and (2), 10(2)(c), 94(4), 95(1), (2) and (5)(b), 96(1), 201, 229(7) and (8), and 254(2) and (3) of the Constitution. They compare this with the constitutional framework governing the 4 th Respondent, whose audit reports, including forensic audit reports prepared pursuant to Article 254(2) of the Constitution, must be published and publicized. According to the Petitioners, the Executive Order contains no similar safeguard, thus no person other than the President knows how any report generated by the Taskforce will be dealt with.
13. Ultimately, the Petitioners contend that the President's actions offend Articles 3(1), 10(2), and 131(2)(a) and (e) of the Constitution. They maintain that the impugned Executive Order amounts to an unconstitutional usurpation of the 4 th Respondent’s constitutional mandate and should therefore be declared unconstitutional.
14. On this premise the Petitioners seek the following relief against the Respondents:
i. A declaration that H.E. the President of the Republic of Kenya, could not constitutionally establish a Taskforce to audit the public debt of the Republic in the manner, composition and terms as set out in Executive Order No. 4 of 2024, published as Kenya Gazette No. 8261 of 2024 and dated 05.07.2024.
ii. A declaration that Executive Order No. 4 of 2024, published as Kenya Gazette No. 8261 of 2024 and dated 05.07.2024, is unconstitutional, null and void.
iii. A declaration do issue that the establishment of presidential taskforce on forensic audit of public debt through Executive Order No. 4 through Gazette Notice No. 8261 vol. cxxvi—no. 97 on 5 th July 2024 contravened inter alia 1, 2(1, 2 and 4), 3(1), 10, 73, 74, 75[1], 93, 94, 95, 96(1), 129, 131, 132, 156, 159, 201, 226(3), 229, 232, 248, 249, 254(2) & (3), 259 and 260 of the Constitution, the Public Audit Act, the Public Finance Management Act and Public Finance Management Regulations 2015 by usurping the powers of the Auditor General and/or those of the Internal Audit office and a result that the Taskforce and its resultant report are, therefore, unconstitutional, null and void.
iv. An order declaring as unconstitutional, null and void, Executive Order No. 4 of 2024, published as Kenya Gazette No. 8261 of 2024 and dated 05.07.2024.
v. Judicial review orders of certiorari quashing Executive Order No. 4 of 2024, published as Kenya Gazette No. 8261 of 2024 and/or any other document dated 05.07.2024 and/or any other date.
vi. Judicial review orders of certiorari quashing Kenya Gazette No. 8261 of 2024 and dated 05.07.2024.
vii. An order that any report borne out of the above impugned gazette notice/executive order is null and void.
viii. Judicial orders of mandamus compelling the Respondents to comply with relevant constitutional provisions and/or any other law.
ix. A judicial review order of prohibition prohibiting the Respondents, its servants and/or agents from using and/or applying the said report and/or gazette notice and/or recognizing or using any item related to the impugned exercise.
x. Any other appropriate relief the court may deem just to grant
xi. This being a public interest Petition filed in defence of the Constitution, each party herein to meet their costs.
7 th and 12 th Respondents’ Case
15. In response to the Petition, the 7 th and 12 th Respondents filed their Grounds of Opposition dated 2 nd April 2025 citing the following grounds:
i. The Petition has not been framed with a reasonable degree of precision showing the particulars of the violation and manner of contravention of the Constitution.
ii. By creating the impugned taskforce, the President was acting within his constitutional mandate as provided for under the provisions of Article 132(3) and (4) of the Constitution which inter-alia includes formulation of policies aimed at effective and efficient governance.
iii. The Executive Authority as outlined under the relevant provisions of the Constitution is wide and essentially involves preparation, initiation and implementation of legislation, development and implementation of legislation, national policies and co-ordination of State Departments. The President can indeed form a Task Force for advisory purposes as regards due execution of the Executive Authority.
iv. The constitutional mandate of the President under Article 132 and indeed the entire Executive Authority vis a vis the powers vested in the independent bodies and offices are not mutually exclusive but the Constitution contemplates collegiality in the promotion and advancement of the national values and principles.
v. From the text of the impugned Executive Order, it does not seek to usurp the functions of the Auditor General, but purely as an advisory to the Executive which would assist the President in the discharge of the Executive Powers as outlined in the Constitution.
vi. The President by dint of the provisions of Article 10 of the Constitution is equally bound to promote good governance and integrity in all areas including public debt and this function is complementary and not exclusive to the powers of the Auditor General.
8 th and 9 th Respondents’ Case
16. In support of the Petition, the 8 th and 9 th Respondents filed their Replying Affidavit through Florence Muturi sworn on 11 th July 2024.
17. It was deponed on behalf of the 8 th and 9 th Respondents that following establishment of the Taskforce, the 9 th Respondent, having noted the unconstitutionality of the process and the proposed task, declined to participate in it and advised the President against usurping the constitutional mandate of the 4 th Respondent.
18. The 8 th and 9 th Respondents maintained that the Constitution vests the exclusive mandate of auditing public debt in the 4 th Respondent under Articles 226 and 229 of the Constitution, as read together with Sections 7, 9, 34 and 37 of the Public Audit Act. They averred that the 4 th Respondent is constitutionally empowered to undertake annual, performance, procurement, periodic and forensic audits, either on his or her own initiative or upon request by Parliament or other authorized entities. Furthermore, is conferred with extensive investigative powers, including the power to obtain expert assistance, summon witnesses, access public records and conduct investigations. The 8 th and 9 th Respondents thus contended that the Constitution and the Public Audit Act already provide a comprehensive legal framework for the auditing of public debt, leaving no constitutional or statutory basis for the President to establish a parallel body to undertake the same functions.
19. The 8 th and 9 th Respondent further contended that all audit reports prepared by the 4 th Respondent are constitutionally required to be submitted to Parliament or the relevant County Assembly for consideration, debate and appropriate action. By contrast, the impugned Taskforce is required to report solely to the President, a process which, they argue, is unknown to the Constitution and incapable of giving rise to any lawful parliamentary consideration, recommendations or implementation. The 8 th and 9 th Respondents that contended that any report generated by the Taskforce would be devoid of legal efficacy, rendering the entire exercise an unnecessary and wasteful expenditure of public resources.
20. The 8 th and 9 th Respondents maintained that the Public Finance Management Act already establishes an elaborate statutory framework for public debt management through the National Treasury and the Public Debt Management Office. In their view, the Taskforce's mandate substantially overlaps with the constitutional and statutory responsibilities of both the 4 th Respondent and the National Treasury, thereby unlawfully interfering with the functions of constitutionally established institutions.
21. According to 8 th and 9 th Respondents, the establishment of the Taskforce amounts to an unconstitutional usurpation of the 4 th Respondent’s mandate and undermines the independence of the office contrary to Articles 229 and 249 of the Constitution. Further to this, it is contended that funding of the Taskforce from public funds to perform duties already assigned to another body violates Article 201 of the Constitution.
22. The 8 th and 9 th Respondents further averred that the Taskforce's findings would inevitably duplicate or conflict with previous audit reports already prepared by the 4 th Respondent thus undermining existing audit processes and recommendations. Equally, they faulted the directive by the President to the Taskforce to report to him, asserting that this improperly usurps Parliament's constitutional oversight role over public debt under Articles 94 and 95 of the Constitution.
23. Further, the 8 th and 9 th Respondents contended that the establishment of the Taskforce defeats the constitutional architecture creating independent commissions and offices under Chapter 15 of the Constitution. They averred that the causes of Kenya's increasing public debt have already been documented in numerous audit reports and that creating another Taskforce serves only to excuse past financial mismanagement, institutionalize impunity and weaken accountability in the management of public resources.
13 th Respondents’ Case
24. In opposition to the Petitioner’s case, the 13 th Respondent filed its Grounds of Opposition dated 27 th January 2025 on the basis that:
i. The Constitution places significance on transparency and accountability in public affairs. The principles and values of governance in public service as stipulated in Article 10 must be deployed transparently and accountably. Thus, where public resources are being utilized to establish the status of our foreign debt, then that action is prudent so long as the same does not undermine the authority of the Auditor General.
ii. The actions to be carried out by the 'Taskforce' do not in any way abrogate the Auditor General's mandate.
iii. Under Article 132 (1) (c) (i) & (ii) of the Constitution, the President has a mandatory distinct and/ or independent role of ensuring the realization of the national values prescribed in Article 10 of the Constitution and to take specific measures to ensure their realization. Additionally, the President is constitutionally obligated to report to the nation in a national address and in the Kenya Gazette all the measures he has taken to realize the national values which include but not limited to good governance, accountability and sustainable development.
iv. The President's constitutional role under the said provisions is independent of similar roles constitutionally assigned to various persons and institutions including independent commissions like that of the Auditor General.
v. Further, as per the impugned Gazette Notice, the Terms of Reference of the 'Taskforce' include inter alia, to:
a. Assess the adequacy of the Public Finance Management (PFM) framework safeguards on debt management and recommend changes in control environment to strengthen the governance of the nation's public debt management system;
b. In light of the current debt burden, the imperative for fiscal consolidation and the constrained fiscal space, recommend alternative sources of financing the country's development needs in the short and medium term and any debt reorganization plan;
c. To consider, perform, or advise on any other matter or subject ancillary to the above.
vi. The Public Debt Audit role is not an exclusive role to the Auditor General. Section 33 of the Public Finance Management Act (PFMA) calls upon the Cabinet Secretary to submit the National Government Debt Management Strategy of the national government over the medium term with respect to its actual liability in respect of loans and guarantees and its plans for dealing with those loans.
vii. The Constitution does not impose an obligation upon the President to facilitate public participation before issuing the directive in the impugned Gazette Notice.
viii. The impugned Gazette Notice shows that the mandate of the Taskforce factored in the element of public participation as follows: (iv) (b) In the performance of its mandate, the Taskforce shall consult with stakeholders in the Public Finance Sector including industry players, associations and lobby groups, regulators and Government agencies, and any other person or entity as the Taskforce shall deem necessary .
ix. Petitioners' assault on the issue of public participation is premature in that, in any event, at this stage we are dealing with the executive decision to establish a Taskforce and once the decision is reduced into a policy or a legislation, then it must be subjected to public participation.
x. The very nature of the 'Taskforce' is an advisory role. Its membership is ad hoc in nature and its members are not public officers. It is not a state office and neither are its members state officers whose appointments are subject to the vetting and approval process of Parliament.
xi. No evidence has been submitted to justify the assertion that members of the Taskforce or any of them lacks integrity, competence or is unsuitable to serve or that their appointments were influenced by improper motives, favoritism, nepotism or corrupt practices.
xii. On the issue of remuneration of the Taskforce, since the establishment of the Taskforce falls within the President's mandate, the costs incurred properly fall within the permissible budget and if any abuse is found to exist on the actual amounts used by the Public Debt Audit Taskforce, then the Auditor General is legally mandated to audit the accounts in conformity with Article 226 (3) of the Constitution.
xiii. The Petition is frivolous, speculative and otherwise antithetical to the public interest objectives of the Taskforce as there are no constitutional or statutory violations against the Petitioners in any manner as alleged or at all and the same ought to be dismissed with costs.
25. Similarly, the 3 rd Petitioner, Alice Ng’ang’a, challenges the constitutionality of Executive Order No. 4 of 2024 establishing the Presidential Taskforce on the Forensic Audit of Public Debt in the Petition dated 8 th July 2024 which is supported by her affidavit. She contends that both the establishment and appointment of the Taskforce’s members is unconstitutional.
26. According to the 3 rd Petitioner, the Taskforce unlawfully usurps, undermines and duplicates the constitutional mandates of the 4 th Respondent, the 1 st Interested Party and the 3 rd Respondent contrary to Articles 94, 95, 96, 211, 226, 228, 229, 252 and 254 of the Constitution. She asserts that the Constitution has already established an elaborate framework for the oversight of public debt through these independent constitutional offices and institutions. In particular she notes that, the 4 th Respondent is constitutionally mandated to audit and report on public debt, the 1 st Interested Party oversees withdrawals from the Consolidated Fund and County Revenue Funds, the 3 rd Respondent is required to report to Parliament on public debt under Article 211 of the Constitution as read with the Public Finance Management Act, while Parliament exercises oversight by considering those reports and taking appropriate action. The 3 rd Petitioner thus contends that the creation of the Taskforce unnecessarily duplicates these constitutional functions, undermines the independence of the affected offices and occasions unwarranted expenditure of public resources.
27. Furthermore, the 3 rd Petitioner contends that the establishment of the Taskforce violates the national values and principles of governance and public finance under Articles 10, 201 and 232 of the Constitution. She avers that the Taskforce duplicates the work of existing constitutional institutions that are already funded by public resources, thereby offending the principles of public finance.
28. Further, the Petitioner challenges the process through which the members of the Taskforce were appointed, asserting that the appointments were made unilaterally by the President without consultation with the Public Service Commission, advertisement of the positions, competitive recruitment or interviews, contrary to the constitutional principles of fairness, merit, transparency and equal opportunity in public appointments. The 3 rd Petitioner additionally raises concerns that the composition of the Taskforce excludes youth and persons with disabilities in contravention of Articles 27 and 56 of the Constitution and alleges that the appointment of the Chairperson, Nancy Onyango, a former senior auditor with the International Monetary Fund (IMF), presents an apparent conflict of interest given the IMF's status as one of Kenya's principal lenders.
29. Further to this, the 3 rd Petitioner asserts that the establishment of the Taskforce and the appointment of its members was undertaken without public participation, contrary to Articles 10, 201(a) and 232(1)(d) and (f) of the Constitution. She points out that the decision was made at a time when Kenyans were demanding financial transparency and prudent use of public resources, yet no opportunity was afforded to the public to participate in determining the necessity of establishing the Taskforce or in the appointment of its members.
30. In conclusion, the 3 rd Petitioner contends that the impugned Executive Order violates the doctrine of legitimate expectation anchored in Articles 1, 2 and 3 of the Constitution. The Petitioner maintains that the public expects the President and other State organs to uphold the Constitution by allowing constitutionally established institutions to discharge their respective mandates without interference or duplication. It is further asserted that the public is entitled to expect that public resources will be utilized prudently, such appointments be undertaken transparently and be involved in decision making. Consequently, she underscores that the establishment of the Taskforce is inconsistent with the Constitution and ought to be declared unconstitutional.
31. Accordingly, the 3 rd Petitioner seeks the following reliefs:
i. A declaration that Executive Order No. 4 of 2024, issued vide Gazette Notice Vol. CXXVI-NO. 97 is in breach of Articles 2, 3, 4(2) ,10, 56, 93, 94, 95, 96, 201, 211, 225, 226, 228, 229 and specifically Article 229 (3) (g), 232, 248, 252 and 254 of the Constitution is unconstitutional, null and void.
ii. A declaration that Executive Order No. 4 of 2024, issued vide Gazette Notice Vol. CXXVI-NO. 97 is in breach of the Public Finance Management Act, Cap 412A and the Public Service (Values and Principles) Act, Cap 185A and therefore unlawful.
iii. An order of certiorari quashing Executive Order No. 4 of 2024, issued vide Gazette Notice - Gazette Notice Vol. CXXVI-NO. 9IV.
iv. Costs of and incidental to these proceedings.
v. Such other, further, additional, incidental and/or alternative reliefs or remedies as the Court shall deem just and expedient.
1 st Respondent’s Case
32. In reaction to the 3 rd Petitioner’s Petition, the 1 st Respondent filed Grounds of Opposition dated 9 th September 2024 on the grounds that:
i. The Petition does not disclose any violation of the Petitioners’ fundamental rights and freedom by the Respondents.
ii. The Applicant has failed to demonstrate that he has an arguable case with the likelihood of success as was captured in the case of Charles Munyendo Olingo V Salim Chetechi Makokha & Another (2019) KLR .
iii. The law imposes both legal and evidentiary burden of proof upon the Petitioner, which burden the Petitioner has failed to discharge in the present Petition.
iv. The Constitution vests the discretion on the organization and coordination of the National Government upon the Presidency who in furtherance of the same may establish a Taskforce to enable him achieve his goals.
v. In no way does the taskforce contravene the function and the mandate of the Auditor General nor does it usurp the role of the Auditor General.
vi. The composition and mandate of the Taskforce is quite different compared to the mandate and functions of the Auditor General established under Article 229(4) of the Constitution.
vii. The Petition has not been pleaded with precision; it does not particularize the exact provisions of the Constitution that are alleged to have been violated and the manner of such violation as set out in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others (2013) eKLR and Nasra Ibrahim Ibren v Independent Electoral and Boundaries Commission & 2 others [2018] eKLR .
viii. Article 132(3) of the Constitution empowers the President to direct and coordinate the functions of ministries and government departments and in doing so it may be necessary to establish a Taskforce such as the one that is the subject of the current litigation in order to help him discharge his constitutional obligation, thus that cannot be said to be a violation of the Constitution.
ix. In the matter of John Harun Mwau v Attorney General (2015) eKLR , the Court stated that for the Court to order the President to exercise his discretion in a particular way or to certain officers, would be similar to taking away discretion that is bestowed only in the President.
x. In Thirdway Alliance Kenya and Anor vs Head of the Public Service, Joseph Kinyua & 2 others; Martin Kimani & 15 Others [2020] eKLR , it was noted that executive powers have to be understood and interpreted in the light of the provisions of the Constitution and the doctrine of separation of powers implicit therein.
xi. Article 132(4) of the Constitution provides that the President may perform any other executive function provided for in the constitution or national legislation while Article 129 of the Constitution provides that executive authority is derived from the people of Kenya and shall be exercised in accordance with the Constitution.
xii. The orders sought if granted would constitute a usurpation of the executives’ constitutional roles and prerogatives contrary to the principle of separation of powers as was rightly observed by the Supreme Court in the Matter of the Speaker of the Senate & another [2013] eKLR Advisory opinion no. 2 of 2013 .
xiii. Judicial intervention should be limited to acts that are manifestly in breach of the law or where the Court is satisfied that the decision maker was manifestly unfair and was influenced by other considerations other than the law.
6 th Interested Party’s case
33. Opposing the 3 rd Petitioner’s Petition, the 6 th Interested Party filed Grounds of Opposition dated 27 th May 2025 on the basis that:
i. The Petition is anchored on the establishment and operations of a “Presidential Task Force on Forensic Audit of the Public Debt” via Executive Order No. 4 of 2024. However, it is critical to note that this task force never took effect and the substratum of a Petition ceases to exist, the Court should not expend judicial time on academic and hypothetical grievances.
ii. Without prejudice to the foregoing, the appointment of the Presidential Taskforce on Forensic Audit of Public Debt is not unconstitutional and does not intrude into the role of Parliament or the Auditor-General as established under Article 229 of the Constitution. The Petitioner's argument rests on a misunderstanding of the constitutional mandates and the complementary roles that various government bodies can play in ensuring financial accountability and transparency.
iii. The Constitution grants the President executive powers to ensure the efficient administration of the country. Under Article 132(1)(c), the President is mandated to coordinate the functions of ministries and government departments. This includes the authority to establish task forces and committees to address specific issues of national importance, such as public debt management.
iv. The establishment of a Presidential Taskforce does not negate or usurp the constitutional mandate of the Auditor-General or Parliament but rather complements it. Taskforces can provide additional insights, recommendations, and support that enhance the work of the Auditor-General and Parliament.
v. Article 229(4) of the Constitution indeed requires the Auditor-General to audit public debt within six months after the end of each financial year. However, this does not preclude other bodies from conducting parallel reviews or audits for specific purposes. The primary audit function remains with the Auditor-General, and any findings by the Taskforce can be shared with the Auditor-General to inform their statutory audit.
vi. The Constitution does not explicitly prohibit the establishment of additional mechanisms to scrutinize public debt. Instead, it emphasizes transparency and accountability, which can be achieved through multiple complementary avenues. The appointment of the Presidential Taskforce on Forensic Audit of Public Debt is a constitutional exercise of executive powers aimed at complementing the Auditor-General’s mandate. It provides additional layers of scrutiny and support to ensure comprehensive oversight of public debt, ultimately contributing to greater transparency and accountability in public finance management.
vii. The Petition should therefore be dismissed in its entirety, with costs to the 5 th Interested Party.
Other Parties Cases
34. The other Parties responses and submissions to both Petitions are not in the Court file or Court Online Platform (CTS).
Parties’ Submissions
1 st and 2 nd Petitioners’
35. The 1 st and 2 nd Petitioners’ filed submissions dated 29 th January 2025 and outlined the issues for determinations as: whether the Preside
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