REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E216 OF 2025
OKIYA OMTATAH OKOITI...................................................1 ST PETITIONER
NYAKINA WYCLIFE GISEBE...............................................2 ND PETITIONER
BERNARD MUCHIRI MUCHERE........................................ 3 RD PETITIONER
DR. MAGARE-GIKENYI BENJAMIN...................................4 TH PETITIONER
KELVIN SAITOTI NAIKUNI..................................................5 TH PETITIONER
OLIVE NAISINKEI AMBROSE..............................................6 TH PETITIONER
DR. DANCAN OTIENO ONYANGO......................................8 TH PETITIONER
NAOMI NYAKERARIO MISATI...........................................9 TH PETITIONER
VERSUS
H. E. (FORMER) PRESIDENT UHURU
MUIGAI KENYATTA……………………………………….1 ST RESPONDENT
THE NATIONAL EXECUTIVE............................................2 ND RESPONDENT
THE CABINET SECRETARY
FOR THE NATIONAL TREASURY.....................................3 RD RESPONDENT
THE PRINCIPAL SECRETARY
FOR THE NATIONAL TREASURY.....................................4 TH RESPONDENT
THE DIRECTOR GENERAL,
PUBLIC DEBT MANAGEMENT OFFICE..........................5 TH RESPONDENT
THE HON. ATTORNEY GENERAL....................................6 TH RESPONDENT
THE CONTROLLER OF BUDGET......................................7 TH RESPONDENT
THE AUDITOR GENERAL...................................................8 TH RESPONDENT
THE NATIONAL ASSEMBLY..............................................9 TH RESPONDENT
FORMER CONTROLLER OF BUDGET
AGNES ODHIAMBO............................................................10 TH RESPONDENT
FORMER AUDITOR GENERAL
EDWARD OUKO..................................................................11 TH RESPONDENT
FORMER ATTORNEY GENERAL
PROF. GITHU MUIGAI.......................................................12 TH RESPONDENT
FORMER TREASURY CABINET SECRETARY
HENRY ROTICH..................................................................13 TH RESPONDENT
FORMER TREASURY
PRINCIPAL SECRETARY................................................. 14 TH RESPONDENT
FORMER TREASURY
CABINET SECRETARY UKUR YATANI.........................15 TH RESPONDENT
FORMER TREASURY CABINET SECRETARY
NJUGUNA NDUNG’U..........................................................16 TH RESPONDENT
THE CONTROLLER OF BUDGET
MARGARET NYAKANG’O................................................17 TH RESPONDENT
THE AUDITOR GENERAL
NANCY GATHUNGU...........................................................18 TH RESPONDENT
THE GOVERNOR,
CENTRAL BANK OF KENYA............................................19 TH RESPONDENT
THE ETHICS & ANTI-CORRUPTION
COMMISSION......................................................................20 TH RESPONDENT
FORMER EACC CEO/ SECRETARY
HALAKHE D. WAQO...........................................................21 ST RESPONDENT
INTERNATIONAL MONETARY FUND (IMF)................22 ND RESPONDENT
AND
THE SENATE OF KENYA........................................1 ST INTERESTED PARTY
LAW SOCIETY OF KENYA.....................................2 ND INTERESTED PARTY
KATIBA INSTITUTE................................................3 RD INTERESTED PARTY
KENYA HUMAN RIGHTS COMMISSION............4 TH INTERESTED PARTY
KENYA NATIONAL
COMMISSION ON HUMAN RIGHTS....................5 TH INTERESTED PARTY
TRANSPARENCY INTERNATIONAL..................6 TH INTERESTED PARTY
THE INSTITUTE FOR
SOCIAL ACCOUNTABILITY (TISA)....................7 TH INTERESTED PARTY
INTERNATIONAL COMMISSION
OF JURISTS (ICJ-KENYA)………………………..8 TH INTERESTED PARTY
THE KENYA DEBT ABOLITION
NETWORK (KDAN)..................................................9 TH INTERESTED PARTY
NATIONAL TAXPAYERS
ASSOCIATION (NTA).............................................10 TH INTERESTED PARTY
COMMITTEE FOR THE ABOLITION
OF ILLEGITIMATE DEBTS (CATDM)...............11 TH INTERESTED PARTY
RULING
Introduction and house-keeping
1. The petition dated 24.4.2025 is in the public interest, filed pursuant to Articles 22 and 258 of the Constitution challenging the constitutionality of public borrowings amounting to Kshs. 6,950,163,132,328 incurred over the 10-year period spanning financial years 2014/2015 to 2025/2025 up to 30.11.2024 and including the controversial Eurobond loans aggregating to 7.1 Billion .
2. Four separate applications were filed by the 10 th , 11 th , 17 th and 18 th respondents. The applicants, namely Former Controller of Budget, Agnes Odhiambo , Former Auditor General, Edward Ouko, The Controller of Budget, Margaret Nyakang’o and the Auditor General, Nancy Gathungu , seek substantially similar reliefs; striking out of the petition as against them and removing them from the proceedings on the basis that they have been improperly joined and that no reasonable cause of action is disclosed against them.
3. Thus, we shall consider each application and determine them in this composite ruling because they are capable of being so dealt with. For purposes of pointedness and to avoid muddle-up in our analysis, we shall identify each application using the distinct name of the applicant and the particular petitioner who filed a response or submissions thereto. Reference to the A-G invites no confusion.
Agnes Odhiambo’s Application
4. The Former Controller of Budget, Agnes Odhiambo (Ms. Odhiambo) , filed the notice of motion dated 19.8.2025 supported by the affidavit sworn by her on 19.8.2025 and written submissions dated 4.5.2026.
5. The application was brought mainly under Articles 3, 10 (2) (b), 22 (1), 23 (1), 19 (20), 20 (4), 159 and 258 of the Constitution .
6. Ms. Odhiambo served as the Controller of Budget from 2011 to 2019. She was appointed on 11.8.2022. Her case is that the petition is not grounded on any conceivable cause of action against her and that the matters complained of in the petition by the 1 st to 9 th petitioners concern actions taken by her strictly in the course of her constitutional and statutory duty.
7. She relied on section 15 (2) of the Controller of Budget Act 2016 which provides that nothing done by the Controller of Budget or any person working under the instructions of the Controller of Budget or any person working under the instructions of the Controller of Budget shall, if done in good faith for the purposes of executing the powers, functions or duties of the Controller of Budget under the Constitution, this Act or any other law, render the Controller of Budget, officer or agent personally liable for any action, claim or demand.
8. She argued that she has been joined to the petition without any factual or legal basis and in the absence of any evidence of bad faith, malice, corruption or other grounds warranting personal liability.
9. She cited Article 236 (b) of the Constitution to the effect that a public officer shall not be victimized or discriminated against for having performed the functions of office in accordance with the Constitution or any other law.
10. She also relied on sections 5 and 15 of the Controller of Budget Act to argue that she cannot be held liable for the execution of her duties duly executed in good faith. She relied on the High Court decision in Moses Wamalwa Mukamari v John O. Makali & 3 others (Civil Suit 42 of 2012) [2012] eKLR.
11. She asserted that it is in the interest of justice that she be struck out as a misjoinder party and that the petition should proceed only against the 7 th respondent, the Controller of Budget , in its official capacity.
Application by the Office of the Controller of Budget
12. The Office of the Controller of Budget filed the notice of motion dated 14.7.2025, supported by the affidavit sworn by Dr. Margaret Nyakang’o .
13. The application was brought under Articles 236 (a) of the Constitution and Rule 5 (d) of the Constitution (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules .
14. Dr. Nyakang’o deposed that she was appointed as the Controller of Budget on 4.12.2019. Her main contention is that she has not been accused of bad faith, corruption, or criminal conduct, and no factual or evidentiary foundation has been laid to warrant her personal inclusion in the proceedings.
15. She argued that as currently framed, the petition constitutes a misjoinder of parties and offends the principles of fairness and judicial economy.
16. Dr. Nyakang’o asserted that her continued presence in her personal capacity subjects her to unlawful litigation, contrary to public policy and the protection accorded to constitutional office holders under the Constitution and statute.
17. She also relied on Article 236 (b) of the Constitution and section 15 of the Controller of Budget Act.
18. Dr. Nyakang’o submitted that the 7 th respondent, the Office of the Controller of Budget, is the proper legal entity to respond to allegations concerning the constitutional office.
19. She prayed for her name to be struck out of the proceedings.
Applications by Edward Ouko and Nancy Githungu
20. Mr. Ouko and Ms. Githungu filed the chamber summons dated 24.4.2026 under Order 1 Rules 10(2) and 14 of the Civil Procedure Rules . The applications were supported by their affidavits sworn on 24.4.2026.
21. Mr. Ouko is the former Auditor General, serving from August 2011 to August 2019. Ms. Githungu is the current head of the 8 th respondent, the Auditor General. Her gravamen is that they have been joined in their personal capacities, yet the petition raises allegations regarding exercise of their constitutional mandate as the former and current Auditor General.
22. Both Mr. Ouko and Ms. Githungu contended that their joinder contravenes Articles 248 (3), 250 (9) and 236 (a) of the Constitution , section 71 of the Public Audit Act and section 206 of the Public Finance Management Act .
23. They argued that they cannot be sued in their personal capacity and held personally liable for any acts committed in good faith while exercising their mandate under article 229 of the Constitution and sections 7 and 71 of the Public Audit Act .
24. They submitted that the 8 th respondent is an independent office under article 248 (3) of the Constitution and that under article 250 (9) , the holder of an independent office is not liable for anything done in good faith in the performance of a function of office.
25. They argued that section 206 of the Public Finance Management Act shields public officers acting under lawful authority and within the scope of their functions from personal liability, absent proof of bad faith, fraud or conduct outside the scope of lawful mandate.
26. They posited that if the petition proceeds with their misjoinder, it will constitute an abuse of the process of this court. They also highlighted that there were neither express or implied link of any alleged wrongdoing to acts or omissions on their part nor substantive reliefs sought against them. They further posited that their joinder in the petition is without justification and constitutes a capricious attempt to victimize, discriminate and occasion them grave prejudice.
27. Thus, each of them urged the court to allow their respective application in the interest of justice.
Responses
Mr. Muchiri’s response
28. The 4 th petitioner, Bernard Muchiri Muchere , filed a replying affidavit sworn on 5.1.2026 in response to Ms. Odhiambo’s and Dr. Nyakang’o’s applications. He also filed written submissions dated 15.1.2026.
29. Mr. Muchere contended that the two applications are frivolous and a malicious attempt to hide from culpability. He asserted that Ms. Odhiambo ought to have filed a response to the petition instead of filing the application seeking to be struck out from the proceedings.
30. He contended that the application is founded on a boldfaced violation of the Constitution and the Controller of Budget Act. That it is an attempt to cover up their deliberate and willful action to conceal public debt incurred outside the law by failure to carry out her responsibilities under Articles 228 (4) and (5) of the Constitution .
31. He asserted that the proceedings were instituted in good faith and in the public interest in defence of the Constitution under articles 3(1), 22(1), (2) (c) and 258 (1) and (2) (c) of the Constitution .
32. He argued that the 7 th respondent, the Controller of Budget , being an office, cannot respond to the claim of deliberate and willful violation of the constitution by the 10 th respondent.
33. He asserted that Ms. Odhiambo is personally culpable of approving the odious debts of approximately Kshs. 2.8 Trillion by misusing authority vested on her under articles 228 (4) and (5) by dint of her appointment under article 228 (1), (2) and (3) of the Constitution.
34. He submitted that the Constitution clearly separated the individual state officer from the office. That after being sworn in, in her own name, Ms. Odhiambo and Dr. Nyakang’o were accorded personal responsibilities to oversee implementation of the budget of the national and county governments by authorizing withdrawals from, among others, the consolidated fund under Article 206, authorize withdrawal of public funds to finance projects as authorized by the Constitution or the Appropriation Act.
35. He highlighted some of the claims made against Ms. Odhiambo and Dr. Nyakang’o in the petition. He specifically mentioned the claim that Ms. Odhiambo violated the Constitution by submitting a misleading national government budget implementation review report for FY 2014/15 purporting that the Government secured USD 2 billion (Kshs. 178 Billion) sovereign bond (Eurobond) yet it was not authorized by the Appropriation Act 2013. That the bonds were transacted in an offshore account, outside her jurisdiction, not the consolidated fund.
36. That Ms. Odhiambo authorized withdrawal of loan revenue of Kshs. 4.3 Trillion while the actual borrowings approved by the National Assembly in the respective appropriations Acts was about Kshs. 1.5 Trillion .
37. Mr. Muchere highlighted that the petition asserts that the Controller of Budget (both past and present) authorized withdrawals from the Consolidated Fund for repayment of sovereign debts that were unconstitutionally and illegally incurred.
38. Mr. Muchere argued that article 236 and section 15 (2) of the Controller of Budget Act was not meant to protect the former and current office holders from deliberately acting contrary to article 228. He asserted that duty is personal and non-delegable.
39. Mr. Muchere relied on D. T. Dobie Co. Ltd v Muchina [1982] KLR 1 to argue that striking out of names is a draconian remedy granted only where pleadings are so hopeless that they cannot be cured by amendment.
40. He urged the court to dismiss the application with costs for want of merit and the petition be heard on merit.
41. The 4 th petitioner, Bernard Muchiri Muchere , also filed a replying affidavit sworn on 3.6.2026 in response to the other two applications in which he echoes Hon. Omtatah’s core arguments which will be discussed in extenso below. Save, he added that the applications for striking out the applicant’s names from the proceedings should be determined at the main hearing because it is not plain and obvious that no cause of action that exists against the 18 th respondent. He argued further that all audit failures, constitutional violations and concealment of odious debts that occurred during Mr. Ouko’s term have been continued, perpetuated and or not rectified by Ms. G athungu.
Mr. Omtatah’s response
42. The 1 st petitioner by Okiya Omtatah Okoiti filed a replying affidavit sworn on 28.4.2026 in response to Mr. Ouko’s and Ms. Githungu’s applications and a further 2 nd replying affidavit sworn on 28.4.2026 in response to Ms. Githungu’s application.
43. Mr. Omtatah asserted that Mr. Ouko and Ms. Githungu are proper and necessary parties. He pointed out that Mr. Ouko was the auditor general during the material period (financial years 2013/2014, 2014/2015, 2015/2016 and 2017/2018) when the impugned audit reports were prepared and issued. He was the constitutional actor who directed and approved the issuance of those reports.
44. He asserted that Mr. Ouko is sued primarily in his official capacity as the former holder of the office of the Auditor General and alternatively in his personal capacity under article 226 (5) of the Constitution for the direct consequences of his acts and omissions while holding that office.
45. Mr. Omtatah submitted that under the said article, a holder of public office who directs or approved the use of public funds contrary to law is personally liable for any loss arising from that use.
46. He challenged the claim of immunity under articles 248 (3), 250 (9), 236 (a) of the Constitution, section 71 of the Public Audit Act and section 206 of the Public Finance Management Act . He asserted that the claim of immunity lacks merit and that article 226 (5) overrides any general immunity provisions where a public officer has directed or approved the use of public funds contrary to law.
47. Mr. Omtatah also challenged the defence of good faith under article 250 (9). He asserted that good faith is a question of fact to be proved at trial and requiring evidence, not a ground for striking out a party at the pleading stage. He also asserted that the defence of good faith is not absolute and can be displaced by evidence of malice, improper motive.
48. Mr. Omtatah highlighted some of the claims raised against Mr. Ouko and Ms. Githungu in the petition. That Mr. Ouko directed or approved the issuance of audit reports that confirmed that the Eurobond proceeds were deposited in offshore accounts; failed to confirm whether public money had been applied lawfully and misled the public by stating that investigations were ongoing only to allow those investigations to disappear from subsequent reports.
49. Mr. Omtatah also highlighted some of the substantive reliefs sought by the petitioners against Mr. Ouko including an order compelling him to refund the National Treasury the principal amounts and costs.
50. Mr. Omtatah disputed the claim that the joinder of the two was victimization, discrimination and an abuse of the court process, asserting that the petition seeks to hold them to account for their actions and omissions while in office.
51. Mr. Omtatah argued that instructions from a superior or adherence to professional standards cannot justify constitutional violations. He relied on article 229 (6) on the requirement that the Auditor General confirms whether public money has been applied lawfully.
52. Mr. Omtatah asserted that striking out Mr. Ouko and Ms. Githungu from the petition would prevent the court from fully understanding the chain of accountability for the Eurobond fraud; fragment the dispute and impair the petitioners’ ability to obtain effective remedies under articles 22 and 258; undermine the principle of personal accountability under article 226 (5) and allow former public officers to evade constitutional scrutiny simply because they no longer hold office.
53. He urged the court to dismiss the applications with costs for want of merit.
Petitioner’s Submissions
54. In response to the four applications, the 1 st and 4 th petitioners filed written submissions dated 28.4.2026 and the 9 th petitioner filed written submissions dated 15.1.2026.
55. They contended that the applications are misconceived and ought to be struck out as they are classic shields of institutional and personal impunity that the court must reject.
56. They submitted that the joinder of Mr. Ouko and Ms. Githungu is justified, necessary and in the public interest. They asserted that proceeding with Mr. Ouko and Ms. Githungu is not an abuse of process and does not victimize them but holds them accountable as required by the Constitution. They argued that striking out their names would shield key actors from oversight failure, prevent full ventilation of the facts and undermine transformative intent of the Constitution.
57. They asserted that various doctrines compel the retention of Mr. Ouko and Ms. Githungu, namely, the doctrine of derivative unconstitutionality, illegality, ostensible authority, public policy and legitimate expectation.
58. They submitted that the Auditor General’s failures flow from and perpetuate the original illegal borrowings. The entire oversight chain is tainted. That omissions and reports that did not expose ultra vires debt creation are themselves illegal. That no constitutional or statutory authority to shield unconstitutional acts or shield personal responsibility. That allowing former constitutional office holders to escape accountability for enabling massive debt fraud offends articles 10, 73, 201, and 232 on the values and principles of public service. That Kenyans legitimately expected the Auditor General to act as a robust guardian of public funds, not a passive enabler. That personal surcharge under Article 226(5) is the appropriate remedy for the loss occasioned.
59. They urged the court to dismiss Mr. Ouko’s and Ms. Githungu’s applications; affirm that Mr. Ouko is a proper and necessary party; uphold the personal liability claims under article 226 (5 ) and direct that the petition proceeds against him on the merits.
Submissions by the Auditor General, Edward Ouko and Nancy Githungu
60. They filed written submissions dated 11.5.2026.
61. They submitted that the 11 th respondent is not a proper and necessary party to the petition because the petition can be heard and determined in his absence without occasioning any prejudice to either of the parties to the petition or the public. That no evidence has been adduced by the petitioners to demonstrate any constitutional violation on his part in his personal capacity.
62. They contended that under article 229 of the Constitution, the Auditor General is an independent juristic person with the power to sue and be sued in its own name. That unless otherwise provided by law, the Office of the Auditor General and not its head and his or her staff ought to be sued in its own name. That article 250 of the Constitution and section 71 of the Public Audit Act insulate the members of the commission and a holder of an independent office from personal liability in terms of anything done in good faith in the performance of their constitutional mandates.
63. They relied on Ethics and Anti-Corruption Commission & 5 others v Henry Morara Ongwenyi & 3 others [2019] eKLR where the court struck out the joinder of parties as their joinder was improper and unnecessary as there was no allegation that they had acted in bad faith.
64. They submitted that the petition does not plead with any degree of precision or particularity any specific act, omission, directive, bad faith, illegality, fraud, negligence or ultra vires conduct attributable to the 11 th respondent in his personal capacity to disclose a reasonable constitutional or statutory cause of action against him. That the petitioners' allegations against the 11 th respondent is framed in broad and institutional terms and are related to the functions of the 8 th respondent rather than to any personal conduct of the 11 th respondent. In support, they relied on Dr. Rev. Timothy Njova v Attorney General & another [2014] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR.
65. They also relied on Leonard Otieno v Airtel Kenya Limited
[2018] eKLR on the importance of presentation of clear evidence in support of violation of constitutional rights.
66. On a without prejudice basis, they submitted that the finding of personal culpability against the 11 th Respondent can only crystallize upon the forensic audit on public debt being completed by the 8 th Respondent, the 9 th Respondent considering the forensic audit and taking appropriate action towards the findings in the report and there being an investigation by the 20 th respondent, in undertaking its mandate in law.
Attorney General’s (AG) submissions
67. The AG filed written submissions dated 8.5.2026 addressing applications by the 10 th and 17 th respondents to have their names struck out on account of protection against personal liability.
68. The AG emphasized that public officers (including state officers) are protected from personal liability for any act or omission done or omitted in good faith in carrying out any duty, or exercising any power or function of the office.
69. The AG also cited Article 236(a) of the Constitution which accords public officers protection from victimization for having performed the functions of office and other relevant statutes extending the protection to the particular office holder. The article reads:
236. A public officer shall not be-
(a) victimized or discriminated against for having performed the functions of office in accordance with this Constitution or any other law.
70. The AG relied on Harlow v Fitzgerald 457 US 800 (1982) where the US Supreme Court qualified the protection against personal liability principle and stated that immunity could be granted to government officials and judicial officers if an official believed in ‘good faith’ that his conduct was lawful and that the conduct was objectively reasonable.
71. The AG cited Black’s Law Dictionary, Ninth Edition at page 713 which defines good faith to mean:
“A state of mind consisting in (1) honesty in belief or purpose, (2) faithfulness to one's duty or obligation, (3) observance of reasonable commercial standards of fair dealing in a given trade or business, or (4) absence of intent to defraud or to seek unconscionable advantage.”
72. Concluding that the test in the Harlow case was of objective reasonableness in that the conduct of the officials is evaluated to ascertain whether they acted reasonably under the circumstances thus warranting immunity.
73. The AG also relied on Bellevue Development Company Ltd v Gikonyo & 3 others (Petition 42 of 2018) [2020] KESC 43 (KLR) (15 May 2020) (Judgment) where the Supreme Court of Kenya defined the objective reasonable test to allow protection of judicial officials performing discretionary functions, so long as the functions did not violate clearly established constitutional or statutory rights of which a reasonable person would have been aware of.
74. The AG further relied on the Constitutional Court of South Africa decision in Grootboom v Ostenberg Municipality 2000 (3) BCLR 227 (C) on the question of reasonableness; In the Matter of the National Land Commission (Advisory Opinion Reference 2 of 2014) [2015] KESC 3 (KLR) (2 December 2015) (Advisory Opinion) on the scope of independence of commissions and independent offices; Pattni & Another v Republic [2001] KLR 264
75. According to the AG, even if the decisions taken by the named officers in the matter were taken or found to be wrong (which is vehemently denied), the same does not necessarily elevate the matter to a constitutional issue to warrant a party aggrieved thereby to institute proceedings by way of a Constitutional Petition. They cited Pattni & Another vs. Republic [2001] KLR 264 in which Harrikson vs. Attorney General of Trinidad and Tobago [1980] AC 265 was cited with approval:
“The notion that whenever there is failure by an organ of government or a public authority or public officer to comply with the law necessarily entails the contravention of some human right or fundamental freedom guaranteed to individuals by the chapters of the Constitution is fallacious.. .
76. The AG suggested that in the event of alleged breach of Chapter 6 of the Constitution on leadership and integrity in the performance of functions, the best route is through the Ethics and Anti-Corruption Commission.
77. The AG relied on Article 79 of the Constitution as read with section 11 (1) (d) of the Ethics and Anti-Corruption Commission Act which mandate the EACC to investigate and recommend to the Director of Public Prosecutions (DPP) any act of corruption, bribery or economic crimes or violation of codes of ethics or other matter prescribed thereunder.
78. The Attorney-General was emphatic; ‘that seeking to hold former office holders personally liable for decisions taken or not taken in good faith is in itself unconstitutional. It is not upon the Petitioners or this Honourable Court to direct key institutions when and how to perform their functions. The role of the Court is strictly to determine whether the exercise of those functions meets the constitutional threshold.’
79. The AG prayed that the names of the 10 th and 17 th respondents be struck out of the proceedings.
Petitioner’s Reply
80. The petitioners filed joint written submissions dated 5.6.2026 in reply to the submissions by the Auditor General, Mr. Ouko and Ms. Githungu .
81. The petitioner submits that the immunity under article 250(9) and section 71 of the Public Audit Act is not absolute, as it only protects acts done in good faith, which must be proved and cannot be presumed where allegations of deliberate concealment, bad faith, and constitutional violations are raised. Further, article 226(5) imposes personal liability on public officers who unlawfully direct or approve the use of public funds, thereby overriding general immunity where bad faith or gross misconduct is alleged. The petition pleads specific audit failures and alleged concealment of financial irregularities, justifying the joinder of both current and former Auditor Generals to enable effective accountability, r
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E216 OF 2025
OKIYA OMTATAH OKOITI...................................................1 ST PETITIONER
NYAKINA WYCLIFE GISEBE...............................................2 ND PETITIONER
BERNARD MUCHIRI MUCHERE........................................ 3 RD PETITIONER
DR. MAGARE-GIKENYI BENJAMIN...................................4 TH PETITIONER
KELVIN SAITOTI NAIKUNI..................................................5 TH PETITIONER
OLIVE NAISINKEI AMBROSE..............................................6 TH PETITIONER
DR. DANCAN OTIENO ONYANGO......................................8 TH PETITIONER
NAOMI NYAKERARIO MISATI...........................................9 TH PETITIONER
VERSUS
H. E. (FORMER) PRESIDENT UHURU
MUIGAI KENYATTA……………………………………….1 ST RESPONDENT
THE NATIONAL EXECUTIVE............................................2 ND RESPONDENT
THE CABINET SECRETARY
FOR THE NATIONAL TREASURY.....................................3 RD RESPONDENT
THE PRINCIPAL SECRETARY
FOR THE NATIONAL TREASURY.....................................4 TH RESPONDENT
THE DIRECTOR GENERAL,
PUBLIC DEBT MANAGEMENT OFFICE..........................5 TH RESPONDENT
THE HON. ATTORNEY GENERAL....................................6 TH RESPONDENT
THE CONTROLLER OF BUDGET......................................7 TH RESPONDENT
THE AUDITOR GENERAL...................................................8 TH RESPONDENT
THE NATIONAL ASSEMBLY..............................................9 TH RESPONDENT
FORMER CONTROLLER OF BUDGET
AGNES ODHIAMBO............................................................10 TH RESPONDENT
FORMER AUDITOR GENERAL
EDWARD OUKO..................................................................11 TH RESPONDENT
FORMER ATTORNEY GENERAL
PROF. GITHU MUIGAI.......................................................12 TH RESPONDENT
FORMER TREASURY CABINET SECRETARY
HENRY ROTICH..................................................................13 TH RESPONDENT
FORMER TREASURY
PRINCIPAL SECRETARY................................................. 14 TH RESPONDENT
FORMER TREASURY
CABINET SECRETARY UKUR YATANI.........................15 TH RESPONDENT
FORMER TREASURY CABINET SECRETARY
NJUGUNA NDUNG’U..........................................................16 TH RESPONDENT
THE CONTROLLER OF BUDGET
MARGARET NYAKANG’O................................................17 TH RESPONDENT
THE AUDITOR GENERAL
NANCY GATHUNGU...........................................................18 TH RESPONDENT
THE GOVERNOR,
CENTRAL BANK OF KENYA............................................19 TH RESPONDENT
THE ETHICS & ANTI-CORRUPTION
COMMISSION......................................................................20 TH RESPONDENT
FORMER EACC CEO/ SECRETARY
HALAKHE D. WAQO...........................................................21 ST RESPONDENT
INTERNATIONAL MONETARY FUND (IMF)................22 ND RESPONDENT
AND
THE SENATE OF KENYA........................................1 ST INTERESTED PARTY
LAW SOCIETY OF KENYA.....................................2 ND INTERESTED PARTY
KATIBA INSTITUTE................................................3 RD INTERESTED PARTY
KENYA HUMAN RIGHTS COMMISSION............4 TH INTERESTED PARTY
KENYA NATIONAL
COMMISSION ON HUMAN RIGHTS....................5 TH INTERESTED PARTY
TRANSPARENCY INTERNATIONAL..................6 TH INTERESTED PARTY
THE INSTITUTE FOR
SOCIAL ACCOUNTABILITY (TISA)....................7 TH INTERESTED PARTY
INTERNATIONAL COMMISSION
OF JURISTS (ICJ-KENYA)………………………..8 TH INTERESTED PARTY
THE KENYA DEBT ABOLITION
NETWORK (KDAN)..................................................9 TH INTERESTED PARTY
NATIONAL TAXPAYERS
ASSOCIATION (NTA).............................................10 TH INTERESTED PARTY
COMMITTEE FOR THE ABOLITION
OF ILLEGITIMATE DEBTS (CATDM)...............11 TH INTERESTED PARTY
RULING
Introduction and house-keeping
1. The petition dated 24.4.2025 is in the public interest, filed pursuant to Articles 22 and 258 of the Constitution challenging the constitutionality of public borrowings amounting to Kshs. 6,950,163,132,328 incurred over the 10-year period spanning financial years 2014/2015 to 2025/2025 up to 30.11.2024 and including the controversial Eurobond loans aggregating to 7.1 Billion .
2. Four separate applications were filed by the 10 th , 11 th , 17 th and 18 th respondents. The applicants, namely Former Controller of Budget, Agnes Odhiambo , Former Auditor General, Edward Ouko, The Controller of Budget, Margaret Nyakang’o and the Auditor General, Nancy Gathungu , seek substantially similar reliefs; striking out of the petition as against them and removing them from the proceedings on the basis that they have been improperly joined and that no reasonable cause of action is disclosed against them.
3. Thus, we shall consider each application and determine them in this composite ruling because they are capable of being so dealt with. For purposes of pointedness and to avoid muddle-up in our analysis, we shall identify each application using the distinct name of the applicant and the particular petitioner who filed a response or submissions thereto. Reference to the A-G invites no confusion.
Agnes Odhiambo’s Application
4. The Former Controller of Budget, Agnes Odhiambo (Ms. Odhiambo) , filed the notice of motion dated 19.8.2025 supported by the affidavit sworn by her on 19.8.2025 and written submissions dated 4.5.2026.
5. The application was brought mainly under Articles 3, 10 (2) (b), 22 (1), 23 (1), 19 (20), 20 (4), 159 and 258 of the Constitution .
6. Ms. Odhiambo served as the Controller of Budget from 2011 to 2019. She was appointed on 11.8.2022. Her case is that the petition is not grounded on any conceivable cause of action against her and that the matters complained of in the petition by the 1 st to 9 th petitioners concern actions taken by her strictly in the course of her constitutional and statutory duty.
7. She relied on section 15 (2) of the Controller of Budget Act 2016 which provides that nothing done by the Controller of Budget or any person working under the instructions of the Controller of Budget or any person working under the instructions of the Controller of Budget shall, if done in good faith for the purposes of executing the powers, functions or duties of the Controller of Budget under the Constitution, this Act or any other law, render the Controller of Budget, officer or agent personally liable for any action, claim or demand.
8. She argued that she has been joined to the petition without any factual or legal basis and in the absence of any evidence of bad faith, malice, corruption or other grounds warranting personal liability.
9. She cited Article 236 (b) of the Constitution to the effect that a public officer shall not be victimized or discriminated against for having performed the functions of office in accordance with the Constitution or any other law.
10. She also relied on sections 5 and 15 of the Controller of Budget Act to argue that she cannot be held liable for the execution of her duties duly executed in good faith. She relied on the High Court decision in Moses Wamalwa Mukamari v John O. Makali & 3 others (Civil Suit 42 of 2012) [2012] eKLR.
11. She asserted that it is in the interest of justice that she be struck out as a misjoinder party and that the petition should proceed only against the 7 th respondent, the Controller of Budget , in its official capacity.
Application by the Office of the Controller of Budget
12. The Office of the Controller of Budget filed the notice of motion dated 14.7.2025, supported by the affidavit sworn by Dr. Margaret Nyakang’o .
13. The application was brought under Articles 236 (a) of the Constitution and Rule 5 (d) of the Constitution (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules .
14. Dr. Nyakang’o deposed that she was appointed as the Controller of Budget on 4.12.2019. Her main contention is that she has not been accused of bad faith, corruption, or criminal conduct, and no factual or evidentiary foundation has been laid to warrant her personal inclusion in the proceedings.
15. She argued that as currently framed, the petition constitutes a misjoinder of parties and offends the principles of fairness and judicial economy.
16. Dr. Nyakang’o asserted that her continued presence in her personal capacity subjects her to unlawful litigation, contrary to public policy and the protection accorded to constitutional office holders under the Constitution and statute.
17. She also relied on Article 236 (b) of the Constitution and section 15 of the Controller of Budget Act.
18. Dr. Nyakang’o submitted that the 7 th respondent, the Office of the Controller of Budget, is the proper legal entity to respond to allegations concerning the constitutional office.
19. She prayed for her name to be struck out of the proceedings.
Applications by Edward Ouko and Nancy Githungu
20. Mr. Ouko and Ms. Githungu filed the chamber summons dated 24.4.2026 under Order 1 Rules 10(2) and 14 of the Civil Procedure Rules . The applications were supported by their affidavits sworn on 24.4.2026.
21. Mr. Ouko is the former Auditor General, serving from August 2011 to August 2019. Ms. Githungu is the current head of the 8 th respondent, the Auditor General. Her gravamen is that they have been joined in their personal capacities, yet the petition raises allegations regarding exercise of their constitutional mandate as the former and current Auditor General.
22. Both Mr. Ouko and Ms. Githungu contended that their joinder contravenes Articles 248 (3), 250 (9) and 236 (a) of the Constitution , section 71 of the Public Audit Act and section 206 of the Public Finance Management Act .
23. They argued that they cannot be sued in their personal capacity and held personally liable for any acts committed in good faith while exercising their mandate under article 229 of the Constitution and sections 7 and 71 of the Public Audit Act .
24. They submitted that the 8 th respondent is an independent office under article 248 (3) of the Constitution and that under article 250 (9) , the holder of an independent office is not liable for anything done in good faith in the performance of a function of office.
25. They argued that section 206 of the Public Finance Management Act shields public officers acting under lawful authority and within the scope of their functions from personal liability, absent proof of bad faith, fraud or conduct outside the scope of lawful mandate.
26. They posited that if the petition proceeds with their misjoinder, it will constitute an abuse of the process of this court. They also highlighted that there were neither express or implied link of any alleged wrongdoing to acts or omissions on their part nor substantive reliefs sought against them. They further posited that their joinder in the petition is without justification and constitutes a capricious attempt to victimize, discriminate and occasion them grave prejudice.
27. Thus, each of them urged the court to allow their respective application in the interest of justice.
Responses
Mr. Muchiri’s response
28. The 4 th petitioner, Bernard Muchiri Muchere , filed a replying affidavit sworn on 5.1.2026 in response to Ms. Odhiambo’s and Dr. Nyakang’o’s applications. He also filed written submissions dated 15.1.2026.
29. Mr. Muchere contended that the two applications are frivolous and a malicious attempt to hide from culpability. He asserted that Ms. Odhiambo ought to have filed a response to the petition instead of filing the application seeking to be struck out from the proceedings.
30. He contended that the application is founded on a boldfaced violation of the Constitution and the Controller of Budget Act. That it is an attempt to cover up their deliberate and willful action to conceal public debt incurred outside the law by failure to carry out her responsibilities under Articles 228 (4) and (5) of the Constitution .
31. He asserted that the proceedings were instituted in good faith and in the public interest in defence of the Constitution under articles 3(1), 22(1), (2) (c) and 258 (1) and (2) (c) of the Constitution .
32. He argued that the 7 th respondent, the Controller of Budget , being an office, cannot respond to the claim of deliberate and willful violation of the constitution by the 10 th respondent.
33. He asserted that Ms. Odhiambo is personally culpable of approving the odious debts of approximately Kshs. 2.8 Trillion by misusing authority vested on her under articles 228 (4) and (5) by dint of her appointment under article 228 (1), (2) and (3) of the Constitution.
34. He submitted that the Constitution clearly separated the individual state officer from the office. That after being sworn in, in her own name, Ms. Odhiambo and Dr. Nyakang’o were accorded personal responsibilities to oversee implementation of the budget of the national and county governments by authorizing withdrawals from, among others, the consolidated fund under Article 206, authorize withdrawal of public funds to finance projects as authorized by the Constitution or the Appropriation Act.
35. He highlighted some of the claims made against Ms. Odhiambo and Dr. Nyakang’o in the petition. He specifically mentioned the claim that Ms. Odhiambo violated the Constitution by submitting a misleading national government budget implementation review report for FY 2014/15 purporting that the Government secured USD 2 billion (Kshs. 178 Billion) sovereign bond (Eurobond) yet it was not authorized by the Appropriation Act 2013. That the bonds were transacted in an offshore account, outside her jurisdiction, not the consolidated fund.
36. That Ms. Odhiambo authorized withdrawal of loan revenue of Kshs. 4.3 Trillion while the actual borrowings approved by the National Assembly in the respective appropriations Acts was about Kshs. 1.5 Trillion .
37. Mr. Muchere highlighted that the petition asserts that the Controller of Budget (both past and present) authorized withdrawals from the Consolidated Fund for repayment of sovereign debts that were unconstitutionally and illegally incurred.
38. Mr. Muchere argued that article 236 and section 15 (2) of the Controller of Budget Act was not meant to protect the former and current office holders from deliberately acting contrary to article 228. He asserted that duty is personal and non-delegable.
39. Mr. Muchere relied on D. T. Dobie Co. Ltd v Muchina [1982] KLR 1 to argue that striking out of names is a draconian remedy granted only where pleadings are so hopeless that they cannot be cured by amendment.
40. He urged the court to dismiss the application with costs for want of merit and the petition be heard on merit.
41. The 4 th petitioner, Bernard Muchiri Muchere , also filed a replying affidavit sworn on 3.6.2026 in response to the other two applications in which he echoes Hon. Omtatah’s core arguments which will be discussed in extenso below. Save, he added that the applications for striking out the applicant’s names from the proceedings should be determined at the main hearing because it is not plain and obvious that no cause of action that exists against the 18 th respondent. He argued further that all audit failures, constitutional violations and concealment of odious debts that occurred during Mr. Ouko’s term have been continued, perpetuated and or not rectified by Ms. G athungu.
Mr. Omtatah’s response
42. The 1 st petitioner by Okiya Omtatah Okoiti filed a replying affidavit sworn on 28.4.2026 in response to Mr. Ouko’s and Ms. Githungu’s applications and a further 2 nd replying affidavit sworn on 28.4.2026 in response to Ms. Githungu’s application.
43. Mr. Omtatah asserted that Mr. Ouko and Ms. Githungu are proper and necessary parties. He pointed out that Mr. Ouko was the auditor general during the material period (financial years 2013/2014, 2014/2015, 2015/2016 and 2017/2018) when the impugned audit reports were prepared and issued. He was the constitutional actor who directed and approved the issuance of those reports.
44. He asserted that Mr. Ouko is sued primarily in his official capacity as the former holder of the office of the Auditor General and alternatively in his personal capacity under article 226 (5) of the Constitution for the direct consequences of his acts and omissions while holding that office.
45. Mr. Omtatah submitted that under the said article, a holder of public office who directs or approved the use of public funds contrary to law is personally liable for any loss arising from that use.
46. He challenged the claim of immunity under articles 248 (3), 250 (9), 236 (a) of the Constitution, section 71 of the Public Audit Act and section 206 of the Public Finance Management Act . He asserted that the claim of immunity lacks merit and that article 226 (5) overrides any general immunity provisions where a public officer has directed or approved the use of public funds contrary to law.
47. Mr. Omtatah also challenged the defence of good faith under article 250 (9). He asserted that good faith is a question of fact to be proved at trial and requiring evidence, not a ground for striking out a party at the pleading stage. He also asserted that the defence of good faith is not absolute and can be displaced by evidence of malice, improper motive.
48. Mr. Omtatah highlighted some of the claims raised against Mr. Ouko and Ms. Githungu in the petition. That Mr. Ouko directed or approved the issuance of audit reports that confirmed that the Eurobond proceeds were deposited in offshore accounts; failed to confirm whether public money had been applied lawfully and misled the public by stating that investigations were ongoing only to allow those investigations to disappear from subsequent reports.
49. Mr. Omtatah also highlighted some of the substantive reliefs sought by the petitioners against Mr. Ouko including an order compelling him to refund the National Treasury the principal amounts and costs.
50. Mr. Omtatah disputed the claim that the joinder of the two was victimization, discrimination and an abuse of the court process, asserting that the petition seeks to hold them to account for their actions and omissions while in office.
51. Mr. Omtatah argued that instructions from a superior or adherence to professional standards cannot justify constitutional violations. He relied on article 229 (6) on the requirement that the Auditor General confirms whether public money has been applied lawfully.
52. Mr. Omtatah asserted that striking out Mr. Ouko and Ms. Githungu from the petition would prevent the court from fully understanding the chain of accountability for the Eurobond fraud; fragment the dispute and impair the petitioners’ ability to obtain effective remedies under articles 22 and 258; undermine the principle of personal accountability under article 226 (5) and allow former public officers to evade constitutional scrutiny simply because they no longer hold office.
53. He urged the court to dismiss the applications with costs for want of merit.
Petitioner’s Submissions
54. In response to the four applications, the 1 st and 4 th petitioners filed written submissions dated 28.4.2026 and the 9 th petitioner filed written submissions dated 15.1.2026.
55. They contended that the applications are misconceived and ought to be struck out as they are classic shields of institutional and personal impunity that the court must reject.
56. They submitted that the joinder of Mr. Ouko and Ms. Githungu is justified, necessary and in the public interest. They asserted that proceeding with Mr. Ouko and Ms. Githungu is not an abuse of process and does not victimize them but holds them accountable as required by the Constitution. They argued that striking out their names would shield key actors from oversight failure, prevent full ventilation of the facts and undermine transformative intent of the Constitution.
57. They asserted that various doctrines compel the retention of Mr. Ouko and Ms. Githungu, namely, the doctrine of derivative unconstitutionality, illegality, ostensible authority, public policy and legitimate expectation.
58. They submitted that the Auditor General’s failures flow from and perpetuate the original illegal borrowings. The entire oversight chain is tainted. That omissions and reports that did not expose ultra vires debt creation are themselves illegal. That no constitutional or statutory authority to shield unconstitutional acts or shield personal responsibility. That allowing former constitutional office holders to escape accountability for enabling massive debt fraud offends articles 10, 73, 201, and 232 on the values and principles of public service. That Kenyans legitimately expected the Auditor General to act as a robust guardian of public funds, not a passive enabler. That personal surcharge under Article 226(5) is the appropriate remedy for the loss occasioned.
59. They urged the court to dismiss Mr. Ouko’s and Ms. Githungu’s applications; affirm that Mr. Ouko is a proper and necessary party; uphold the personal liability claims under article 226 (5 ) and direct that the petition proceeds against him on the merits.
Submissions by the Auditor General, Edward Ouko and Nancy Githungu
60. They filed written submissions dated 11.5.2026.
61. They submitted that the 11 th respondent is not a proper and necessary party to the petition because the petition can be heard and determined in his absence without occasioning any prejudice to either of the parties to the petition or the public. That no evidence has been adduced by the petitioners to demonstrate any constitutional violation on his part in his personal capacity.
62. They contended that under article 229 of the Constitution, the Auditor General is an independent juristic person with the power to sue and be sued in its own name. That unless otherwise provided by law, the Office of the Auditor General and not its head and his or her staff ought to be sued in its own name. That article 250 of the Constitution and section 71 of the Public Audit Act insulate the members of the commission and a holder of an independent office from personal liability in terms of anything done in good faith in the performance of their constitutional mandates.
63. They relied on Ethics and Anti-Corruption Commission & 5 others v Henry Morara Ongwenyi & 3 others [2019] eKLR where the court struck out the joinder of parties as their joinder was improper and unnecessary as there was no allegation that they had acted in bad faith.
64. They submitted that the petition does not plead with any degree of precision or particularity any specific act, omission, directive, bad faith, illegality, fraud, negligence or ultra vires conduct attributable to the 11 th respondent in his personal capacity to disclose a reasonable constitutional or statutory cause of action against him. That the petitioners' allegations against the 11 th respondent is framed in broad and institutional terms and are related to the functions of the 8 th respondent rather than to any personal conduct of the 11 th respondent. In support, they relied on Dr. Rev. Timothy Njova v Attorney General & another [2014] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR.
65. They also relied on Leonard Otieno v Airtel Kenya Limited
[2018] eKLR on the importance of presentation of clear evidence in support of violation of constitutional rights.
66. On a without prejudice basis, they submitted that the finding of personal culpability against the 11 th Respondent can only crystallize upon the forensic audit on public debt being completed by the 8 th Respondent, the 9 th Respondent considering the forensic audit and taking appropriate action towards the findings in the report and there being an investigation by the 20 th respondent, in undertaking its mandate in law.
Attorney General’s (AG) submissions
67. The AG filed written submissions dated 8.5.2026 addressing applications by the 10 th and 17 th respondents to have their names struck out on account of protection against personal liability.
68. The AG emphasized that public officers (including state officers) are protected from personal liability for any act or omission done or omitted in good faith in carrying out any duty, or exercising any power or function of the office.
69. The AG also cited Article 236(a) of the Constitution which accords public officers protection from victimization for having performed the functions of office and other relevant statutes extending the protection to the particular office holder. The article reads:
236. A public officer shall not be-
(a) victimized or discriminated against for having performed the functions of office in accordance with this Constitution or any other law.
70. The AG relied on Harlow v Fitzgerald 457 US 800 (1982) where the US Supreme Court qualified the protection against personal liability principle and stated that immunity could be granted to government officials and judicial officers if an official believed in ‘good faith’ that his conduct was lawful and that the conduct was objectively reasonable.
71. The AG cited Black’s Law Dictionary, Ninth Edition at page 713 which defines good faith to mean:
“A state of mind consisting in (1) honesty in belief or purpose, (2) faithfulness to one's duty or obligation, (3) observance of reasonable commercial standards of fair dealing in a given trade or business, or (4) absence of intent to defraud or to seek unconscionable advantage.”
72. Concluding that the test in the Harlow case was of objective reasonableness in that the conduct of the officials is evaluated to ascertain whether they acted reasonably under the circumstances thus warranting immunity.
73. The AG also relied on Bellevue Development Company Ltd v Gikonyo & 3 others (Petition 42 of 2018) [2020] KESC 43 (KLR) (15 May 2020) (Judgment) where the Supreme Court of Kenya defined the objective reasonable test to allow protection of judicial officials performing discretionary functions, so long as the functions did not violate clearly established constitutional or statutory rights of which a reasonable person would have been aware of.
74. The AG further relied on the Constitutional Court of South Africa decision in Grootboom v Ostenberg Municipality 2000 (3) BCLR 227 (C) on the question of reasonableness; In the Matter of the National Land Commission (Advisory Opinion Reference 2 of 2014) [2015] KESC 3 (KLR) (2 December 2015) (Advisory Opinion) on the scope of independence of commissions and independent offices; Pattni & Another v Republic [2001] KLR 264
75. According to the AG, even if the decisions taken by the named officers in the matter were taken or found to be wrong (which is vehemently denied), the same does not necessarily elevate the matter to a constitutional issue to warrant a party aggrieved thereby to institute proceedings by way of a Constitutional Petition. They cited Pattni & Another vs. Republic [2001] KLR 264 in which Harrikson vs. Attorney General of Trinidad and Tobago [1980] AC 265 was cited with approval:
“The notion that whenever there is failure by an organ of government or a public authority or public officer to comply with the law necessarily entails the contravention of some human right or fundamental freedom guaranteed to individuals by the chapters of the Constitution is fallacious.. .
76. The AG suggested that in the event of alleged breach of Chapter 6 of the Constitution on leadership and integrity in the performance of functions, the best route is through the Ethics and Anti-Corruption Commission.
77. The AG relied on Article 79 of the Constitution as read with section 11 (1) (d) of the Ethics and Anti-Corruption Commission Act which mandate the EACC to investigate and recommend to the Director of Public Prosecutions (DPP) any act of corruption, bribery or economic crimes or violation of codes of ethics or other matter prescribed thereunder.
78. The Attorney-General was emphatic; ‘that seeking to hold former office holders personally liable for decisions taken or not taken in good faith is in itself unconstitutional. It is not upon the Petitioners or this Honourable Court to direct key institutions when and how to perform their functions. The role of the Court is strictly to determine whether the exercise of those functions meets the constitutional threshold.’
79. The AG prayed that the names of the 10 th and 17 th respondents be struck out of the proceedings.
Petitioner’s Reply
80. The petitioners filed joint written submissions dated 5.6.2026 in reply to the submissions by the Auditor General, Mr. Ouko and Ms. Githungu .
81. The petitioner submits that the immunity under article 250(9) and section 71 of the Public Audit Act is not absolute, as it only protects acts done in good faith, which must be proved and cannot be presumed where allegations of deliberate concealment, bad faith, and constitutional violations are raised. Further, article 226(5) imposes personal liability on public officers who unlawfully direct or approve the use of public funds, thereby overriding general immunity where bad faith or gross misconduct is alleged. The petition pleads specific audit failures and alleged concealment of financial irregularities, justifying the joinder of both current and former Auditor Generals to enable effective accountability, r
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